Pomare v R - [2017] NZCA 155

IN THE COURT OF APPEAL OF NEW ZEALAND

CA328/2016
[2017] NZCA 155

BETWEEN	ELIAS POMARE Appellant
AND	THE QUEEN Respondent

Hearing:	6 April 2017
Court:	Randerson, Clifford and Whata JJ
Counsel:	L J Postlewaight for Appellant E J Hoskin for Respondent
Judgment:	3 May 2017 at 10.30am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Whata J)

Mr Pomare was sentenced to life imprisonment with a minimum period of imprisonment (MPI) of twelve years for murder.[1] Mr Pomare appeals this sentence, contending the sentencing Judge failed to give sufficient discount for his diagnosis of foetal alcohol syndrome disorder (FASD) and for remorse.

Background

[1]R v Pomare [2016] NZHC 1346.

Late in the evening of 4 October 2014 Mr Pomare and his friend, Mr Perkinson, went uninvited to Mr Griffin’s home. Mr Griffin was 56 and suffered from physical impairment: his left arm was paralysed and he could not bend his left leg. He was alone at the time, doing some work on the exterior of his property. Mr Pomare struck him to the head with a weapon on at least two occasions, fracturing his skull. Mr Griffin died as a result of these injuries. Mr Pomare and Mr Perkinson then spray-painted the walls of the house and ransacked the property, taking two pushbikes and a laptop computer.

Sentencing indication

On the first day of trial, 13 April 2016, Mr Pomare sought a sentencing indication. In fixing the indication, Wylie J determined that s 104 of the Sentencing Act 2002 (the Act) was engaged, having regard to the fact that the murder involved the following s 104 aggravating features:
(a)An unlawful entry into and unlawful presence in the victim’s home;
(b)A high level of brutality and callousness; and
(c)Victim vulnerability, because of his age and physical disability.
Turning to mitigating factors, the Judge concluded that given his age (16 at the time of offending), Mr Pomare’s culpability was lower than it would have been if he was a mature adult. He also concluded that a 17-year minimum could have a crushing effect on him and that there was still some prospect of rehabilitation. This provided the basis for a minimum period of imprisonment of 14 years. A further discount of one year, or seven and a half per cent, would be applied if Mr Pomare pleaded guilty, resulting in an indicative MPI of 13 years.
At the time, a report by Dr Valerie McGinn on Mr Pomare’s FASD had been prepared but it was not before Wylie J because the Crown had challenged its admissibility.

Guilty plea

Mr Pomare subsequently entered a guilty plea and Wylie J made orders for a Provision of Advice to the Court Report (PAC Report) and a psychological report examining, among other things, whether Mr Pomare suffered from FASD and whether that affected his culpability or meant a lengthy term of imprisonment would be unduly harsh.

Sentencing

Mr Pomare was sentenced on 17 June 2016…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pomare v R

Details

AGLC: Pomare v R [2017] NZCA 155
Case: [2017] NZCA 155
Decision Date: 3 May 2017 at 10.30am

CaseChat Overview and Summary

Elias Pomare was convicted of murder and sentenced to life imprisonment with a minimum period of imprisonment (MPI) of twelve years. Pomare appeals the sentence, arguing that the sentencing Judge failed to sufficiently account for his foetal alcohol syndrome disorder (FASD) and remorse. The Crown submits that the sentence was appropriate, taking into account the brutality and callousness of the murder, the vulnerability of the victim, and the mitigating factors of Pomare's youth and FASD.

The court found that the Judge erred in his assessment of Pomare's remorse, accepting the opinion of the expert witness that Pomare's apparent lack of remorse was linked to his FASD. The court considered that a combined discount of up to 30 per cent for Pomare's youth and FASD would not have been unreasonable. However, the court was not prepared to interfere with the sentence because it was not manifestly excessive, considering the objective seriousness of the offending and the statutory policy of ensuring a minimum sentence of 17 years for the most serious murder cases.

The appeal was dismissed, and the sentence of life imprisonment with a MPI of twelve years was upheld.

Orders