Popata v Police

[2014] NZHC 2414

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-297 [2014] NZHC 2414

TAI POPATA

v

NEW ZEALAND POLICE

Hearing:	29 September 2014
Appearances:	N M Silich for the Appellant For the Crown
Judgment:	29 September 2014

ORAL JUDGMENT OF THOMAS J

Solicitors:

Meredith Connell, Auckland.

Counsel:

N.Silich, Auckland.

POPATA v NEW ZEALAND POLICE [2014] NZHC 2414 [29 September 2014]

[1]      Mr  Popata  was  charged  with  two  counts  of  wilful  damage  and  one  of behaving threateningly.   Each carries a maximum sentence of three months’ imprisonment.

[2]      The sentencing Judge approached sentencing cumulatively and took a starting point of three months on each charge bringing the starting point to nine months.

[3]      She gave him credit for a guilty plea of 25 per cent which she said would bring the new starting point to somewhere in the vicinity of seven months and then added an uplift for extensive previous offending.   So the final sentence was eight months’ imprisonment plus reparation of $300.   Mr Popata appeals against that sentence.

[4]      In her sentencing comments the Judge made some reference to the fact that one of the charges had been downgraded from that originally laid.  Mr Popata had, it seems, originally been charged with intentional damage which carries a maximum sentence of seven years’ imprisonment.

[5]      It is also salient that after the charge was amended, Mr Popata pleaded guilty and then asked to be sentenced there and then waiving his right to a pre-sentence report.  I refer to that because it is necessary to put the District Court sentencing in some context, that is, a busy District Court Judge being faced with an amended charge with an immediate request for sentencing without a pre-sentence report.   I have no doubt that, had matters been conducted in a more measured fashion, then it is unlikely that the result would have been as it was.

Summary of facts

[6]      The offending occurred about 9.30 pm on the 26 July 2014.  Mr Popata was at an address in Massey.  Also present was the victim and Mr Popata’s three year old grandson.   It seems that there was previously a domestic relationship between Mr Popata and the victim.

[7]      Mr Popata is being described as heavily intoxicated.   There was a verbal argument which resulted in him saying to the victim, “I am going to waste the fuck out of you”.   She feared for her safety, decided to leave the address and sought refuge at a neighbour’s house.  The neighbour is the second victim in this matter. Mr Popata then went to that address and there was an argument between the three parties.  He left the address and returned to the first victim’s home where he uplifted a large meat cleaver and began cutting the plugs of numerous lamps at the address along with that of the television and fridge/freezer which resulted in the food inside spoiling.

[8]      He then picked up his grandson and exited the address, kicking over the first victim’s property on the way out.  She contacted the Police and was hiding from Mr Popata when he got into his motor vehicle which was parked in the shared driveway. He started his vehicle and reversed it into the motor vehicle belonging to the second victim.  He then drove forward and placed his vehicle into reverse ramming her car and causing damage.

[9]      The first victim says that the appellant, Mr Popata, is her ex-partner.  There had obviously been a violent relationship.  She talked about being out of pocket but it is really the comment about the impact of the offending on her to which I want to refer.  She says:

I am really upset and scared of Tai.   I worry that if he is released from custody he will not respect any bail conditions given to him and will come and seriously harm me.

[10]     She said that she does not want to continue the relationship.  She has suffered enough.

[11]     The reason I refer to that is because the context of the offending does need to be taken into account.   As I said to Mr Popata’s lawyer, this is not a case of a drunken teenager damaging a letter box on his way home from a night out.  It was violent offending with the violence directed towards his ex-partner.   Cutting the cords was vindictive, malicious behaviour.  The ramming of the neighbour’s car is intimidating behaviour and of course all of this is done in the context of the initial threat which Mr Popata made to the first victim.

Was the sentence manifestly excessive?

[12]     Having considered the facts, however, I need to address the end result of sentencing.  The Crown accepts that the sentence was manifestly excessive and that the Judge should not have taken starting points at the maximum sentence and then imposed them cumulatively. The real issue is what the end sentence should be.

[13]     I am satisfied that the sentence was manifestly excessive.   The offending, even in the context I have described, did not merit starting points at the maximum and then imposed cumulatively.

[14]     I  am  satisfied,  however,  that  a  cumulative  approach  was  not  an  error. Although the offending took place in one incident, it was of a different nature given first the threat to the victim, then the damage, and then the damage to a second victim’s property.

[15]     In any event, the totality principle must be considered.   So whether one approaches the sentencing on the basis of four months for the two wilful damage charges plus two months for the threatening behaviour or, as I think the respondent suggested, two months on each cumulatively, I agree that a starting point of around six months is appropriate on a totality basis.

[16]     I say that given the aggravating factors to which I have referred, being the context of the behaviour, the fact that it took place at the first victim’s home and that she was entitled, given the prior relationship with Mr Popata, to expect that her trust in having him in the home would not be misplaced.  There was a young grandchild present.

[17]     Mr Popata’s criminal history is of some concern.  When it is considered in light of the violent nature of the behaviour, his previous violent convictions are an aggravating factor.  I agree that an uplift of about six weeks should be added to the starting point.

[18]     The charge was obviously amended  and Mr Popata immediately pleaded guilty and is therefore entitled to a full discount of 25 per cent.  That takes the end sentence down to five months and two weeks.

[19]     The appeal is allowed.  The end sentence of eight months’ imprisonment is set aside.   A substituted sentence of five months and two weeks is imposed, two months cumulatively on each charge of wilful damage and one month two weeks cumulatively on the charge of threatening behaviour.

[20]     Reparation remains.

Thomas J