Pomare v R
[2011] NZCA 83
•21 March 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA582/2010 [2011] NZCA 83 |
| BETWEEN CODY TAMAKI POMARE |
| AND THE QUEEN |
| Hearing: 1 March 2011 |
| Court: Chambers, Chisholm and Venning JJ |
| Counsel: C Wilkinson-Smith for Appellant |
| 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. After the offenders had left the property the victims managed to free themselves and seek assistance from neighbours.
Both victims were manhandled and suffered grazes and soreness. The younger victim also suffered bruising to her arms. Although the victims did not require immediate medical attention, the younger victim was later diagnosed as suffering from post-traumatic stress disorder. Both victims had lived in their home for more than 20 years and no longer feel safe. They are considering moving off the farm.
The appellant and his co-offenders
The appellant
At the time of sentencing Mr Pomare was 23 years of age. He appeared in the Youth Court in 2002 on a charge of burglary and was admonished and discharged. In 2004 he was convicted of common assault. And in 2007 he was convicted in Australia on a charge of robbery using violence and was sentenced to imprisonment of two years, three months. Following release he was deported back to New Zealand.
The probation officer’s report indicates that he had a good upbringing and that he excelled in shearing competitions, having finished second in the world championships for junior shearers. He has a partner and a young child. Shortly before the offending he had lost his employment. He expressed remorse to the probation officer and the departmental “tools” indicated that the risk of re-offending was low to medium. However, the probation officer considered that the actual risk was higher because of the serious nature of the offending, his association with co-offenders, and a problematic lifestyle involving substance abuse.
The co-offenders
Rangi Pauu was 26 years of age at the time of sentencing. In 2001 he was admonished in the Youth Court for aggravated robbery. The same year he had a conviction in the District Court for male assaults female. Between 2003 and 2006 he had convictions in Australia for violence. One of those convictions attracted a sentence of five years imprisonment. Following his deportation to New Zealand he had a further conviction for assault in this country.
Like Mr Pomare, Mr Pauu expressed remorse for his offending. Although the departmental tools indicated that the risk of re-offending was low the probation officer considered that it was higher for the same reasons that had been expressed in relation to Mr Pomare.
The other co-offender Lokenitama Filipo was 27 at the time of sentencing. In 2004 he was imprisoned for six months for assault causing bodily harm. Later that year he was imprisoned for four and a half years for robbery with violence. Like the other two offenders, he was deported from Australia to New Zealand.
Mr Filipo also expressed remorse for the offending. The probation officer considered that there was a high risk of re-offending.
Sentencing in the District Court
After summarising the facts Judge Winter noted that the younger victim had stated in her victim impact statement that Mr Pomare had shorn sheep on her farm in January 2010. This led the Judge to comment:
... no doubt having met them you knew that these were women alone. You knew that one of the women was in her 70’s or at least an elderly person. You knew their physical size and stature. You knew they were easy targets.
These comments give rise to the first ground of appeal advanced by the appellant. We will return to that matter shortly.
Judge Winter concluded that there was “nothing to differentiate” between the three offenders. He said the “slight proportionate difference in previous criminal histories does not in my mind affect the overall outcome”. He also said that he was satisfied that concurrent sentences in respect of the two charges of aggravated robbery faced by each of the offenders were appropriate.
With reference to letters from the offenders expressing remorse the Judge said that he kept that matter in mind:
... albeit somewhat with a sound of a hollow gong when you bear in mind that one of you had been to this farm before.
But he accepted that there was a need for the offenders to be reintegrated and rehabilitated into society.
When determining the starting point with reference to R v Mako[1] Judge Winter took into account the following aggravating features:
[1] R v Mako [2000] 2 NZLR 170.
(a)It was premeditated and highly planned;
(b)Disguises were worn by the offenders;
(c)They had brought weapons and targeted these premises;
(d)There were multiple offenders and they were each equally culpable irrespective of their particular roles;
(e)There was violence against the victims who were restrained and “hog tied”;
(f)The victims were vulnerable;
(g)There was a home invasion;
(h)There was an “additional sinister element” by virtue of the telephone having been taken away.
Given those factors the Judge adopted a starting point of 10 years imprisonment. He then applied an uplift of one and a half years to reflect the previous history of the offenders and arrived at a sentence before allowing for mitigating factors of 11 ½ years imprisonment.
Turning to mitigating factors, the Judge accepted that all the offenders had entered a guilty plea at the earliest opportunity. He said that he had noted the positive aspects expressed in the probation officers’ reports and also the letters that the prisoners had written. Those factors attracted a discount of one third which resulted in a sentence of seven and a half years imprisonment for each offender.
Finally, the Judge considered whether there should be a minimum period of imprisonment. Having briefly traversed s 86(2) of the Sentencing Act 2002 and having noted that the offenders would be eligible for parole after serving one third of the seven and a half years, the Judge continued:
A sentence approaching that time in jail does not to my mind reflect the purposes of deterrence and denunciation required. Nor does it satisfy the interests of the rural community, let alone these victims particularly. The rural community must be entitled to keep safe and secure, and free from home invasion in their isolated farming properties.
For those reasons he concluded that a minimum period of imprisonment of five years was required for each of the offenders.
First and second grounds of appeal – disputed facts and level of culpability
Because there is an overlap between these two grounds of appeal we find it convenient to deal with them together.
Appellant’s argument
In his written submissions Mr Wilkinson-Smith raised several matters. The first was that the Judge had erroneously approaching sentencing on the basis that Mr Pomare had previously been to the farm and that this had resulted in the victims being deliberately targeted. He noted that there was no such allegation in the summary of facts and that it had been expressly disputed in the written submissions presented to the sentencing Judge. He submitted that this matter should not have been taken into account by the sentencing Judge and that under those circumstances the starting point of 10 years should have been lower.
The second point was that the Judge had incorrectly sentenced on the basis that Mr Pomare had entered the property and was accordingly equally as culpable as the other two offenders. It was submitted that in fact Mr Pomare was only the “get away driver” and was thereby less culpable. Again, it was submitted that this had resulted in a starting point that was excessive because it did not properly reflect that the appellant only had “limited participation in the offending”.
Discussion
In her impact statement the younger victim indicated that one of the offenders had shorn sheep at the property in January 2010 and that they had been hospitable to him. The Crown submissions presented at sentencing indicated that the descriptions offered by the victims matched Mr Pomare and that this suggested that the victims had been specifically targeted. The submissions also indicated that signed statements of the victims would be filed with the Court. We are not sure whether this happened.
By the time the appeal was argued Mr Pomare’s stance had modified. Mr Wilkinson-Smith said that Mr Pomare now accepted that he had been to the farm previously but that he did not realise that it was the same farm and they had not specifically targeted the two victims. For present purposes we accept that this accurately reflects the situation. However, this does not persuade us that the Judge erred in adopting a starting point of 10 years.
In Mako this Court observed:
[58] Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished, even if no serious injuries are inflicted, would require a starting point of seven years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around 10 years.
This Court confirmed in R v Fenton[2] that those observations hold good even though the statutory home invasion provisions have been repealed.[3]
[2] R v Fenton [2008] NZCA 379 at [10] – [12].
[3] R v Fenton [2008] NZCA 379 at [10]-[12].
Even without a specific targeting of this particular farm or these particular victims it is clear that the offenders targeted a rural property at night. As Judge Winter observed (with reference to the issue of whether there should be a minimum period of imprisonment) rural properties and their occupants are vulnerable. This offending was within the starting point of 10 years referred to in Mako.
The other disputed issue concerned whether Mr Pomare had entered the house. Not surprisingly that contention was effectively abandoned when the appeal was argued. This reflected, first, that Mr Pomare had acknowledgeed in his second interview with the police that he went into the house and, secondly, that the summary of facts described all the offenders going into the house and leaving together. In any event, as this Court said in Mako there is no justification for treating those assigned roles other than of confronting the victims as less culpable unless they are truly less than full participants.[4]
[4] At [64].
We are satisfied that the Judge was right to approach sentencing on the basis that the culpability of all three offenders was the same. We are also satisfied that the starting point of 10 years was not too high. We reject the first two grounds of appeal.
Third ground of appeal – the uplift
Appellant’s argument
There are effectively two dimensions to the appellant’s argument. First, that the uplift for previous convictions should not have been applied “in a blanket fashion across the three accused”. Rather, there should have been a differential approach based on the respective ages and number of previous prison sentences served by the offenders. Secondly, the uplift was in any event too high and inconsistent with the uplift that has been applied in other cases that have reached the Court of Appeal.
Discussion
Both Mr Pomare and Mr Filipo had previous convictions for aggravated robbery (or its equivalent in Australia). Mr Pauu had also appeared in the Youth Court for robbery. Apart from those convictions each prisoner had at least one previous conviction for violence in the nature of assaults. These previous convictions (and appearance in the Youth Court in the case of Mr Pauu) were, of course, highly relevant in the context of the current offending.
Judge Winter was aware that the previous offending of each appellant was not exactly the same but decided that it was nevertheless appropriate to apply the same uplift for all three. It is unrealistic to suggest that Judge Winter should have attempted to distinguish between these co-offenders on account of their previous records or ages. In both respects they were in broadly similar categories and the Judge did not err by applying an uplift that was the same for all three.
The remaining issue is whether the Judge erred by applying an uplift of 18 months. While we accept that an uplift of this magnitude was the maximum available to the Judge, we have not been persuaded that it was beyond that limit. In the case of Mr Pomare it was particularly relevant that he had previously been sentenced to imprisonment for a robbery involving violence as recently as 2007 and that he had offended again in a similar manner not long after being deported to New Zealand.
Even if the uplift was too high, Mr Pomare received the discount for his guilty pleas which, on the Supreme Court’s reasoning in Hessell v R[5], was far too generous. His end sentence of seven and a half years’ imprisonment equates, on the Supreme Court reasoning and assuming a maximum permissible discount, to a pre-discount figure of 10 years’ imprisonment; that is, no uplift at all. What is always important is the appropriateness and fairness of the end sentence, not the precise mechanics by which the sentencing Judge has reached it. Here we are satisfied that the end sentence of seven and a half years’ imprisonment was fair and appropriate.
[5] Hessell v R [2010] NZSC 135, (2010) 24 CRNZ 966.
This ground of appeal fails.
Fourth ground of appeal – minimum period of imprisonment
Appellant’s argument
Mr Wilkinson-Smith submitted that the imposition of a minimum period of imprisonment was incompatible with other cases involving aggravated robbery. He noted that no minimum period had been imposed in Fenton or R v Royal.[6] He also contended that in R v Renata[7] and R v Walker[8] where there had been a minimum period of imprisonment for aggravated robbery the risk profile had been much higher.
[6] R v Royal [2009] NZCA 65.
[7] R v Renata [2009] NZCA 526.
[8] R v Walker [2010] NZCA 534.
Counsel also referred to the observation in R v Gordon[9] that where a minimum period of imprisonment is being considered:
[48] ... it is necessary to consider all of the sentencing principles in ss 7, 8 and 9 ... those factors included the appellant’s early guilty plea and genuine remorse, previous good character, and different personal circumstances ...
Mr Wilkinson-Smith contended that the Judge had not considered, or had at least not adequately considered, mitigating factors when deciding whether there should be a minimum period of imprisonment and, if so, the duration.
Discussion
[9] R v Gordon [2009] NZCA 145.
It is clear from the sentencing remarks that the Judge imposed a minimum period of imprisonment in this case for three particular purposes: denunciation, deterrence and protection of the community. Those purposes are included in s 86(2)(b), (c) and (d) of the Sentencing Act.
Given the circumstances of the offending, particularly that a rural property had been targeted and that Mr Pomare had a previous conviction for robbery with violence, we are satisfied that it was within the discretion of the Judge to conclude that that there should be a minimum period of imprisonment.
On the other hand, we disagree with the Judge as to the length of the minimum period. On this topic this Court said in R v Taueki:[10]
[56] Once it becomes necessary to address the second question, the length of the minimum period, the Court is required to take into account (to the extent they are relevant to the particular case) all of the purposes of sentencing in s 7 and the mandatory requirements of ss 8 and 9, just as it must take them into account in setting the finite term: Brown at para [34]. The setting of the minimum period of imprisonment requires similar analysis to that required for setting the nominal sentence. The factors in ss 8 and 9 are relevant to both exercises. The fact that they are taken into account in setting the minimum period, as well as the maximum period, does not lead to double counting, but rather reflects the dual exercise which the Court must undertake (Brown at para [36]).
[10] R v Taueki [2005] 3 NZLR 372.
While we acknowledge that the Judge referred to mitigating factors earlier in his judgment, he does not appear to have given the early guilty plea and the need for Mr Pomare to be reintegrated and rehabilitated into society[11] adequate consideration, when it came to the length of the minimum period of imprisonment. He also seems to have downplayed Mr Pomare’s expression of remorse on the basis that these women were specifically targeted as “easy targets”[12] even though that allegation was disputed and there was no disputed facts hearing under s 24 of the Sentencing Act.
[11] See [15] above.
[12] See [13] and [15] above.
After reviewing the circumstances of the offending and the offender we have concluded that the minimum period of imprisonment should not have been any longer than 50 per cent. In reaching that view we have taken into account the four aggravated robbery authorities cited by Mr Wilkinson-Smith.
In Fenton and Royal there was no minimum period of imprisonment. A minimum period of two thirds was imposed in Renata where it was accepted by this Court that the appellant was “a very dangerous young man” in respect of whom every possible step to protect the community from him needed to be taken.[13] We also note that Mr Renata had attempted to change his pleas of guilty. Walker also involved a minimum period of two thirds. However, in that case the plea was not entered at the earliest opportunity and in any event there appears to be no challenge in this Court to the minimum period of imprisonment.
[13] At [31].
For those reasons we will substitute a minimum period of imprisonment of 50 per cent for the maximum period imposed in the District Court.
Result
We extend the period for lodging the appeal. The appeal against the minimum period of imprisonment is allowed and the period of five years is quashed and replaced with a period of three years and nine months. In all other respects the appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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