Pomare v R - [2011] NZCA 83

IN THE COURT OF APPEAL OF NEW ZEALAND

CA582/2010
[2011] NZCA 83

BETWEEN CODY TAMAKI POMARE
Appellant

AND THE QUEEN
Respondent

Hearing: 1 March 2011

Court: Chambers, Chisholm and Venning JJ

Counsel: C Wilkinson-Smith for Appellant
S B Edwards for Respondent

Judgment: 21 March 2011 at 11 am

JUDGMENT OF THE COURT

A The time for appealing is extended.

B The minimum period of imprisonment of five years imposed in the District Court is quashed and replaced with a minimum period of imprisonment of three years and nine months.

C In all other respects the appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Chisholm J)

During the night of 17 March 2010 Mr Pomare and two co-offenders, disguised and armed with knives, broke into a farmhouse occupied by an elderly woman and her daughter. They tied the women up, ransacked the house, and stole valuable property. Mr Pomare and his co-offenders were each sentenced in the Pukekohe District Court to seven and a half years imprisonment on two counts of aggravated robbery. They were ordered to serve a minimum period of five years (two thirds).
Mr Pomare appeals against his sentence on the primary ground that the sentence was manifestly excessive. In particular he alleges that the sentencing Judge, Judge Winter, erred by:
(a)Taking into account a disputed aggravating factor;
(b)Failing to recognise that the appellant’s level of culpability was lower than that of his co-offenders;
(c)Applying an excessive uplift for Mr Pomare’s previous convictions;
(d)Imposing a minimum non parole period that was inconsistent with similar cases and without considering mitigating factors.

The appeal was filed four days out of time. There is no opposition from the Crown to an extension of time. The time for filing the appeal is extended accordingly.

The offending

The victims, a 71 year old woman and her 41 year old daughter, live on a farm. Some time after 11:30 p.m. Mr Pomare and his co-offenders drove to the property. They were heavily disguised and armed with knives. Although there was also reference in the police summary to a firearm, that allegation was disputed and was disregarded by the Judge at sentencing. The police summary also alleges that there was a fourth offender but this offender has denied any involvement and is yet to stand trial.
The offenders gained entry by forcing open French doors. They located the two victims who were asleep in their respective bedrooms, and woke them. Cash was demanded from each victim and the offenders also demanded to know where the safe was located. The victims told the offenders that they had no safe and, fearing for their safety, invited the offenders to take whatever they wanted from the house. The arms and legs of the victims were “hog tied”.
Following that the offenders ransacked the dwelling and eventually took jewellery, bankcards, a cell phone and other personal items belonging to the victims. It seems that little, if any, has been recovered. The telephone was also removed.…

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 [2011] NZCA 83
Case: [2011] NZCA 83
Decision Date: 21 March 2011

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Cody Tamaki Pomare appealed against the sentence imposed on him by the Pukekohe District Court. Pomare and two co-offenders were convicted of aggravated robbery for breaking into a farmhouse, tying up an elderly woman and her daughter, and stealing valuables. Each offender was sentenced to seven and a half years imprisonment, with a minimum non-parole period of five years. Pomare appealed the sentence on the grounds that it was manifestly excessive, arguing that the sentencing judge erred in considering a disputed aggravating factor, not recognising his lower level of culpability, applying an excessive uplift for his previous convictions, and imposing a minimum non-parole period inconsistent with similar cases without considering mitigating factors.

The Court of Appeal found that the starting point of 10 years for the aggravated robbery was appropriate, despite the disputed facts. The Court also found that the sentencing judge did not err in applying the same uplift for all three offenders, given their similar previous records. However, the Court did not agree with the length of the minimum non-parole period imposed, stating that it should not have been any longer than 50%. Therefore, the minimum non-parole period of five years was quashed and replaced with a period of three years and nine months. The appeal against sentence was dismissed in all other respects.

The Court of Appeal extended the time for lodging the appeal and ordered that the minimum period of imprisonment be reduced from five years to three years and nine months. All other aspects of the sentence were to remain unchanged.

Orders