Popata v The King
[2025] NZCA 372
•30 July 2025 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA725/2024 |
| BETWEEN | JAYDEN POPATA |
| AND | THE KING |
| Hearing: | 18 June 2025 |
Court: | Ellis, Peters, Walker JJ |
Counsel: | A S Bloem and K R Russell for the Appellant |
Judgment: | 30 July 2025 at 11.30 am |
JUDGMENT OF THE COURT
A The appeal is allowed.
BThe sentence of seven years and six months’ imprisonment is set aside and a sentence of six years and nine months’ imprisonment is substituted.
____________________________________________________________________
REASONS OF THE COURT
(Given by Walker J)
Introduction
Mr Popata appeals his sentence of seven years and six months’ imprisonment imposed by Judge E M Thomas in the District Court at Auckland.[1] Sentencing followed Mr Popata’s guilty pleas to charges of aggravated robbery,[2] wounding with intent to injure,[3] escapes lawful custody,[4] and common assault.[5]
[1]R v Popata [2024] NZDC 24627 [sentencing notes].
[2]Crimes Act 1961, s 235(c).
[3]Section 188(2).
[4]Section 120(1)(c).
[5]Section 196.
He contends that the sentence is manifestly excessive for two reasons. Firstly, he says that the Judge imposed an excessive uplift for his prior history and offending while serving a sentence of intensive supervision. Secondly, he says that the Judge failed to adequately account for the impact of personal background factors under s 27 of the Sentencing Act 2002 (the Act).
The offending
The charges arose from three separate incidents, as summarised in the sentencing notes.[6]
[6]Sentencing notes, above n 1, at [2]–[7].
In the early hours of 16 September 2023, Mr Popata and seven associates arrived at the Wapiti Sports Bar in two stolen vehicles. They entered as a group. Mr Popata was armed with a rifle. The other members of the group had pistols, knives and a crowbar. Bar staff were present, cashing up and closing for the night.
The group smashed their way through the wooden and glass door securing the bar area. Members of the group then began loading up the two stolen vehicles with bottles of alcohol.
Mr Popata and one of his associates demanded that a female staff member open the safe. The safe required a fingerprint entry which she did while the associate pointed a pistol to her head. It took time to open the safe. As Mr Popata waited, one of his associates told her to hurry up and that he would shoot her. Once the safe was open, Mr Popata and his group fled with $38,000 in cash, plus the alcohol stolen from behind the bar. The offending resulted in the charge of aggravated robbery.
Mr Popata was a remand prisoner on 1 December 2023 when he cornered another inmate. Mr Popata and the other inmate were rival gang members. Another person knocked the victim to the ground. While on the ground, Mr Popata stabbed the victim repeatedly with an improvised weapon until they were able to escape. The victim survived and was admitted to hospital. This incident led to the charge of wounding with intent to injure.
On another occasion, the Department of Corrections was transporting Mr Popata for medical treatment when he barged his way past the Corrections officers and escaped custody. He was recaptured soon thereafter. This incident resulted in the charge of escaping custody and common assault.
The sentencing decision
At sentencing, the Judge took the charge of aggravated robbery as the lead offence. He noted the particularly serious elements displayed in the offending: multiple offenders, use of weapons, vulnerability of staff, possession of a firearm and the theft of a large amount of property along with threats to kill. These features prompted him to adopt a starting point of seven years.[7] He then adjusted it by one year for the charge of wounding with intent to injure, resulting in a global starting point of eight years.[8]
[7]At [10]–[11].
[8]At [12].
The Judge considered that Mr Popata’s previous convictions and the fact that the aggravated robbery took place while he was on an intensive supervision sentence, were aggravating factors warranting further uplifts. He expressed the combined uplift in percentage terms. The 15 per cent uplift given equated in real terms to a further one year and two months’ imprisonment (or 14 months).[9]
[9]At [14]–[15].
The Judge allowed a guilty plea credit of 15 per cent, though the guilty plea to the aggravated robbery charge only came once there was a pending trial date.[10] He did not allow any discrete credit for remorse.[11]
[10]At [16].
[11]At [17].
The final stage of the sentencing exercise involved consideration of Mr Popata’s background. The Judge stated:[12]
[18] What I do recognise is your background and how difficult that has been. Everybody has got a story about what brings them here. Usually the stories are sad, yours falls into that category. You have been given allowances for that in the past, sometimes very generous allowances. But if you get an allowance like that and you keep offending, where that continued offending shows a particular pattern, where that pattern requires the principles of denunciation and deterrence and the protection of the public to be given a little bit more weight, the High Court has said that the allowance that I must give you for your background has to come down. Somewhere between zero and eight per cent. You fit into that category. The greatest allowance that I could give you now for your background factors would be six per cent.
[12]Footnote omitted.
This resulted in an end sentence of seven and a half years’ imprisonment.[13]
The appeal
[13]At [22].
This Court must allow Mr Popata’s appeal if it is satisfied that there is an error in the sentence reached and a different sentence should be imposed.[14] Otherwise, the Court must dismiss the appeal.[15] An appeal court will generally not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.[16] It is the end sentence imposed, rather than the process by which it is reached, which is relevant on appeal.[17]
[14]Criminal Procedure Act 2011, s 250(2).
[15]Section 250(3).
[16]Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
[17]At [36].
As noted, the appeal grounds focus on the uplifts for previous history and consideration of the impact of Mr Popata’s background as a causal contributor of his offending. We take each of the grounds of appeal in turn.
Was the uplift for previous history and offending while on sentence too high?
Appellant’s submissions
Ms Russell, who argued this part of the appeal for Mr Popata, properly acknowledged that Mr Popata’s unfavourable criminal history justified an uplift. She submitted, however, that the combined uplift of 14 months is disproportionate to the starting point of eight years for the lead offence. In support of her submission, she referred to several cases involving comparably serious offending and significant criminal histories, to illustrate how moderate uplifts are typically calculated as a fixed number of months, rather than a percentage, in the context of high starting points.[18] She described the use of percentage-based uplifts on high starting points as having a distorting effect resulting in re-punishment for past offending.
[18]R v Ngarongo [2023] NZHC 2442; R v McGoldrick [2023] NZHC 731; and R v Wharerau [2024] NZHC 1200.
Regarding the aggravating feature of offending while on sentence, Ms Russell submitted that it must be tempered based on Mr Popata’s circumstances and the maximum penalty of six months available for breach of intensive supervision.[19] She argued that the limited time Mr Popata spent on intensive supervision before going on to offend meant that the opportunity for rehabilitation had yet to be realised.[20]
Respondent’s submissions
[19]Sentencing Act 2002, s 70A.
[20]Mr Popata had been subject to the sentence of intensive supervision for six weeks before he reoffended.
Ms Murphy, for the respondent, acknowledged that care is needed when imposing percentage uplifts in the context of a high starting point. She emphasised that Mr Popata’s four previous convictions for aggravated robbery represented a pattern of serious violent offending, warranting a stern uplift for the purpose of deterrence and community protection.
In terms of accounting for offending on sentence, Ms Murphy submitted this was such a serious example of breach that a sentence close to the maximum would have been available if subject to a charge. She contended it was immaterial that Mr Popata offended at the beginning of that sentence before any rehabilitative impact was realised.
Discussion
It is not possible to determine the respective contribution of each aggravating factor to the percentage uplift figure, as the Judge approached the issue on a global basis. That is understandable because there are similar rationales for uplifts for past criminal behaviour and offending on sentence, although the latter also recognises an offender’s disregard for Court processes.[21]
[21]Clunie v R [2013] NZCA 110 at [22].
Nonetheless, we consider the combined uplift of 14 months (equivalent to 15 per cent) was disproportionate. We set out our reasons.
As far as past offending is concerned, the Act requires the Court to take into account the number, seriousness, date, relevance, and nature of any previous convictions of an offender.[22] All three well‑established explanations for the relevance of previous convictions are engaged in this case: demonstration of the need for greater deterrence, an indicator of the risk of reoffending, and an indicator of character and culpability.[23]
[22]Sentencing Act, s 9(1)(j).
[23]Taitapanui v R [2021] NZCA 161 at [24], citing Beckham v R [2012] NZCA 290 at [84].
It is also well recognised that uplifts for prior convictions must strike a balance between achieving deterrence and the need to avoid punishing offenders twice for the same offence. This can result in a tension. The question which needs to be addressed is whether the uplift is proportionate, both to the sentencing starting point,[24] and to the sentence(s) imposed for previous offending.[25]
[24]Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [9].
[25]Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [41].
Uplifts are sometimes expressed as a percentage of the starting point. At face value, this approach may appear to have regard to proportionality. However, the appellant’s argument that there is a risk of disproportionate outcome where starting points are high has weight. It is preferable in those instances that an uplift be calculated based on a fixed number of months rather than as a percentage to avoid falling into error.
Here, Mr Popata’s most relevant prior convictions are:[26]
(a)two charges of possession of a firearm for which he was sentenced to 18 months’ intensive supervision (which he was serving at the time of the index offending) in August 2023;
(b)two charges of aggravated robbery for which he was sentenced to four years and six months’ imprisonment in December 2021;
(c)aggravated robbery and assault with intent to injure for which he was sentenced to two years and seven months’ imprisonment in March 2015; and
(d)aggravated robbery and assault with intent to rob for which he was sentenced to 18 months’ intensive supervision and 200 hours’ community work in October 2014.
[26]Mr Popata has other convictions for breach of release conditions and property offending.
Mr Popata is now aged 28. It is likely that some of these previous sentences factored in Mr Popata’s youth at the time of his offending.
Against the backdrop of Mr Popata’s offending history, and in particular his longest sentence of four years and six months, an uplift of any more than five months effectively re-sentences Mr Popata for that past offending. We consider an uplift of five months is consistent with the rationale for such uplifts and strikes the appropriate balance between the competing sentencing principles.
As far as offending while on sentence is concerned, we do not accept that distinguishing between the culpability of a person who reoffended shortly after being sentenced, and one who reoffended after having served most of a rehabilitative sentence, is tethered to any sentencing principle. Similarly, the maximum penalty for breach of intensive supervision may inform the assessment, but does not do more than that. We consider an uplift of one month was appropriate here.
The combined uplift of six months’ imprisonment for these two aggravating factors necessarily requires the conclusion that the 14-month uplift imposed by the Judge resulted in a manifestly excessive sentence.
Was the allowance for Mr Popata’s upbringing too low?
Appellant’s submissions
Ms Bloem had carriage of this aspect of the appeal for Mr Popata. She submitted that the Judge erred by misconstruing the High Court decision in Carroll v Police[27] as imposing a notional cap on available deductions for repeat offenders for background factors. She contended that, rather than imposing a general cap or fixing a tariff, Carroll illustrates a context dependent individualised assessment.
[27]Carroll v Police [2023] NZHC 3293.
Ms Bloem advised the Court that Mr Popata had previously received a 20 per cent allowance to reflect a background marred by cultural and economic deprivation, trauma and adversity. She responsibly acknowledged that the level of premeditation in Mr Popata’s current serious offending inevitably results in a lesser allowance, because it demonstrated a relatively high level of agency, but submitted that a range between 12 and 15 per cent is appropriate.
Respondent’s submissions
In her oral submissions, Ms Murphy acknowledged that, to the extent the Judge considered the effect of Carroll was to prescriptively identify the appropriate range of allowance for repeat offenders, he was incorrect. However, she contended that the six per cent reduction was nevertheless within range given the combination of recidivism, premeditation and failure to take up the rehabilitative opportunity offered by intensive supervision. She submitted that the time had come when other sentencing principles must surpass consideration of the material impact of an offender’s background to reduce culpability.
Discussion
Carroll does not impose a tariff or notional cap on allowances for repeat offending, yet it appears that the Judge read that case as constraining the range of permitted deduction. To that extent, the Judge erred in his approach.
In every case there must be an individualised assessment of an offender’s background to address the concept of offender agency which, in turn, is relevant to the level of an offender’s culpability.[28] What must be shown is a “causative contribution” to offending.[29] The Supreme Court in Berkland v R recognised that the background factors which explain offending may continue to explain repeat offending, but that there comes a point at which other sentencing principles come to dominate.[30] Identifying that point will be a matter for careful consideration on the facts of the offence and offender.[31]
[28]Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [91].
[29]At [109], referring to Carr v R [2020] NZCA 357 at [64], [65] and [71].
[30]At [94], n 105.
[31]At [94].
We recognise the relationship between allowance for personal background and uplifts for prior offending. Reducing an allowance for personal circumstances because they also played a role in prior offending, while uplifting for previous convictions, risks the appearance of a double penalty.[32] On the one hand, it must be recognised that an offender’s background “may leave its mark on a person throughout life”.[33] On the other hand, it is necessary to identify the point at which other sentencing principles take priority, particularly protection of the community.
[32]Cooper v R [2025] NZCA 272 at [33].
[33]Poi v R [2020] NZCA 312 at [37], quoting Bugmy v The Queen [2012] HCA 37, (2013) 249 CLR 571 at [43].
Mr Popata’s background illustrates the connection between upbringing and criminal offending. According to a s 27 report prepared for an earlier sentencing, Mr Popata is the product of a dysfunctional childhood and methamphetamine addiction. He was removed from his family at 10 years and placed in boys’ homes and youth justice facilities. He joined a gang early in life and did not attend high school. His life trajectory was formatively sketched out from an early stage. Nonetheless, for the reasons which Ms Murphy summarised, we consider that there must now be a significant reduction in the permitted allowance in Mr Popata’s case from that which would have otherwise been available. Balancing the relationship between uplifts and allowances, we conclude that the allowance of six per cent is a stern but appropriate response in Mr Popata’s case.
To recap, we find that the uplifts for prior history imposed by the District Court were too high and resulted in an end sentence which was manifestly excessive. We consider the uplift for aggravating factors should be six months (instead of 14 months), but that the six per cent allowance for s 27 factors is appropriate. This results in an end sentence of six years and nine months’ imprisonment (rounded down).
The concurrent sentences on the wounding charge and other charges remain in accordance with the Judge’s sentence.
Result
The appeal is allowed.
The sentence of seven years and six months’ imprisonment is set aside and a sentence of six years and nine months’ imprisonment is substituted.
Solicitors:
Bloem Law, Auckland for Appellant
Crown Solicitor, Auckland for Respondent
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