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Popata v The the Queen

Popata v The the Queen

Case [2022] NZHC 489 18 March 2022

Appeal

Sentencing

Personal Mitigating Circumstances

Systemic Disadvantage

Countervailing Policy Considerations

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000024

[2022] NZHC 489

BETWEEN
JAYDEN POPATA

Appellant

AND

THE QUEEN

Respondent

Hearing: 14 March 2022

Counsel:

GP Timms for Appellant HR Smith for Respondent

Judgment:

18 March 2022

JUDGMENT OF DOWNS J

This judgment was delivered by me on Friday, 18 March 2022 at 11 am.

Registrar/Deputy Registrar

Solicitors/Counsel:
Crown Solicitor, Auckland. GP Timms, Auckland.

POPATA v R [2022] NZHC 489 [18 March 2022]

The appeal

[1] Mr Popata committed two aggravated robberies.1 He received a prison sentence of four and a half years.2 Mr Popata appeals, arguing the sentence is manifestly excessive. Mr Popata’s primary concern is that his troubled background was not given sufficient discount by the sentencing Judge.

Principle

[2] An appeal in this context must be allowed if there is an error in the sentence and a different one should be imposed.3

Background

[3] The first aggravated robbery was committed 1 am, 30 June 2018. Mr Popata and a co-defendant entered a suburban bar. Mr Popata had an axe; the co-defendant a shotgun. Mr Popata demanded the manager open the safe. He did so. Mr Popata and the co-defendant left with cash and cigarettes.

[4] The second aggravated robbery was committed 9 am, 5 July 2018. Mr Popata, the same co-defendant from the first robbery, and a third defendant, entered a suburban TAB. One of the other defendants had a screwdriver. Mr Popata demanded a staff member open the safe. She attempted to do so, but the safe had a timer. The defendants became agitated by the delay and instead took cash from the till and the staff member’s wallet.

[5] Approximately $15,000 was stolen in the offences.4 The victims suffered significant emotional harm.

[6]Mr Popata was arrested and charged 25 July 2018. He was then 21.

1      Aggravated robbery is punishable by a maximum period of 14 years’ imprisonment; Crimes Act 1961, s 235(c).
2      R v Popata [2021] NZDC 25050.
3      Criminal Procedure Act 2011, s 250 and Tutakangahau v R [2014] NZCA 279.
4 Sentence indication notes at [7].

[7] On 12 June 2019, hence 11 months later, Mr Popata pleaded guilty to the second aggravated robbery.5 On the morning of trial (7 October 2019), Mr Popata sought to vacate that plea. The application was later dismissed.6 Mr Popata then appealed unsuccessfully to the Court of Appeal.7 On 30 June 2021, about two weeks before trial, Mr Popata accepted a sentence indication.

[8] Mr Popata was ultimately sentenced 17 December 2021. Judge E P Paul adopted a global starting point of seven and a half years’ imprisonment. The Judge deducted 15 percent for Mr Popata’s guilty pleas; five percent for Mr Popata’s age; and 20 percent for other personal mitigating features, including a background of deprivation. The Judge made no allowance for remorse.

[9] As observed, the sentence is four and a half years’ imprisonment. Mr Popata must serve all of it; this…

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 Popata v The the Queen

Details

AGLC: Popata v The the Queen [2022] NZHC 489
Case: [2022] NZHC 489
Decision Date: 18 March 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Mr. Jayden Popata appealed against his four and a half-year prison sentence for two aggravated robberies. Popata argued the sentence was manifestly excessive, contending that his troubled background was not given sufficient consideration by the sentencing Judge. The appeal hinged on whether there was an error in the sentence that warranted a different one to be imposed.

The court examined whether the Judge erred in not affording a greater discount for Popata's personal mitigating features, as outlined in the cultural report prepared by Dr Jarrod Gilbert. The Judge had deducted 20 percent for these features. Popata's counsel argued that the discount should have been 30 percent, citing a similar case where a co-defendant received a 30 percent discount for personal mitigating features. The court noted that while Popata's background was indeed troubled, the level of discount he received was within the range supported by recent authority. The court concluded that the discount Popata received was appropriate given the seriousness of his offences.

Additionally, Popata's counsel argued that the Judge should have made some allowance for remorse. Popata had expressed a desire to apologise to the victims and had written a brief apology letter. However, the court found no error in the Judge's decision not to make an allowance for remorse, considering Popata's significant delay in pleading guilty and the impact of this delay on the victims.

The appeal was dismissed, and the original sentence was upheld. The court emphasised the difficulty in balancing the various principles involved in sentencing, particularly when considering an offender's background and the seriousness of the offence.

Orders