Popata v The the Queen

[2022] NZHC 489

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 was second-strike offending.

A précis of Mr Popata’s case

[10]   On behalf of Mr Popata, Mr Timms advances two submissions. Mr Timms’ primary one is that the Judge erred in not affording greater discount for the personal mitigating features identified in the cultural report prepared by Dr Jarrod Gilbert. The Judge afforded 20 percent for this mix. Mr Timms argues the discount should have been 30 percent, particularly as one of Mr Popata’s co-defendants, who was sentenced by a different Judge, received 30 percent for personal mitigating features.8

[11]   Mr Timms’ secondary submission is that the Judge was wrong not make some “nominal” allowance for remorse because:

(a)Mr Popata told the pre-sentence report writer he acknowledged the victims’ emotional harm and wished to apologise to them at a restorative justice conference. Mr Popata made the same observation to Dr Gilbert, who prepared the cultural report.

5      Mr Popata was charged with a third aggravated robbery too. I assume the prosecution abandoned this charge at some stage.

6      R v Popata [2020] NZDC 22339.

7      Popata v R [2021] NZCA 222.

8      R v Pohatu-Hardiman [2019] NZDC 26084 at [26].

(b)Mr Popata wrote a brief apology letter.

Analysis

[12]   A useful starting point is Dr Gilbert’s extensive and helpful cultural report. What follows is a summary only of a depressingly familiar tale.

[13]   A “high level of crime and poverty” pervaded Mr Popata’s early life. His family lacked money.  Mr Popata’s father’s response was criminal.  He instructed  Mr Popata  (and  his  brother)  to  commit  serious  offences,  including  burglary.  Mr Popata suffered routine physical abuse, including with household objects as weapons. He was expelled from two  intermediate  schools  and  did  not  attend  high school. Mr Popata was removed from his parents when he was 10 or 11 and thereafter, “in and out of boys’ homes for the rest of his adolescence”. He frequently ran away and was held in a youth justice facility. Fights with others became the norm. Mr Popata joined the Crips gang as a teenager. He remains in that gang. Mr Popata was exposed to drugs from a young age. He reports a methamphetamine addiction.

[14]What does the law say about all this?

[15]   First, an offender’s background is relevant at sentencing. The law takes a broad view of what comprises this background. It includes not just the offender’s personal background, but matters in relation to her or his family, whānau, community and cultural background.9

[16]   Second, potential discount extends to what is described as systemic disadvantage, meaning longstanding deprivations that affect—and afflict—some groups, at least when this informs the commission of the offence by some influence upon choice. So, for example, a Full Court of the Court of Appeal has said “ingrained, systemic poverty resulting from loss of land, language, culture, rangatiratanga, mana and dignity are matters that may be regarded in a proper case to have impaired choice and diminished moral culpability”.10

9      Sentencing Act 2002, s 8(i).

10     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [159].

[17]   Third, the mere fact of an offender’s ethnicity does not constitute a basis for a sentencing discount.11

[18]   Fourth, the amount of discount for personal circumstances depends not just on causal  potency,  but  countervailing  policy  considerations.  To  elaborate,   the Court of Appeal has made it clear offence seriousness does not preclude discounts for personal mitigating circumstances, including systemic disadvantage. The most forceful statement of this is probably Waikato-Tuhega v R: “It is simply not right to say that, in cases involving serious offending, small discounts only, or no discounts at all, can be given”.12 However, the Court of Appeal has been equally clear the seriousness of the offending may operate to reduce the level of the discount given.13 For example, in Keil v R, one of the defendants argued he should have received more than 20 percent discount for personal mitigating circumstances.14 Keil involved offences of serious violence. The Court rejected the defendant’s argument as the “requirements of accountability, denunciation and deterrence had to predominate”.15

[19]   Though sometimes overlooked, Whata J made exactly the same point in Solicitor General v Heta, the seminal case in this area.16 The Judge said when “sentencing violent offenders, countervailing ... factors may constrain the scope of any discount”.17

[20]   This brings me to the co-defendant’s sentencing.18 Mr Pohatu-Hardiman was sentenced by Judge M E Sharp 23 December 2019, hence four days after Mr Popata. The Judge adopted an eight and a half year starting point—Mr Pohatu-Hardiman committed a third aggravated robbery. Among  other discounts, the Judge allowed  30 percent for personal circumstances.

11     Mika v R [2013] NZCA 648 at [12].

12     Waikato-Tuhega v R [2021] NZCA 503 at [47].

13     Carr v R [2020] NZCA 357 at [66]–[67], Aramoana v R [2021] NZCA 558 at [10].

14     Keil v R [2017] NZCA 563.

15 At [58].

16     Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.

17 At [59].

18     Mr Timms does not argue the resulting sentences infringe the parity principle.  He was right  not to do so because the different outcomes do not involve gross disparity. Mr Pohatu-Hardiman received a four-year, four-month prison sentence.

[21]   The Judge began her sentencing remarks by citing not the facts of the offending, but Mr Pohatu-Hardiman’s “terrible background”.19 The Judge said because  of  this,  she   “would   rather   do   almost   anything   else”   than   send  Mr Pohatu-Hardiman to prison.20 She added she had dealt with Mr Pohatu-Hardiman on a “large number of occasions” and always sought to find him a residential treatment facility.21 Later, the Judge described Mr Pohatu-Hardiman as “the embodiment of systemic Māori deprivation”.22 The Judge cited Heta. However, the Judge did not refer to Whata J’s observation offence seriousness may constrain the scope of any discount.

[22]   Mr Timms is correct Mr Pohatu-Hardiman’s personal circumstances appear similar to Mr Popata’s. However, there are three responses to this point.

[23]   First, the Judge’s approach in Mr Pohatu-Hardiman’s case presents as somewhat idiosyncratic, in that the Judge appears to have been focussed on this issue.

[24]   Second, true comparison in this area is difficult. Even detailed sentencing notes contain only a summary of the information drawn from underlying reports. The Court of Appeal made a similar point in Whittaker v R.23 One of the defendants argued the discount of 9.5 percent for his background was lower than that given in other cases. The Court rejected the argument, noting “entitlements to discounts on account of matters raised in s 27 reports are very much fact-specific in each case”.24 It added creation of guidelines “would not be useful”.25

[25]Third, recent authority is instructive.

[26]   In R v Wilson, the defendants committed a single aggravated robbery—a bad home invasion.26 The sentencing Court was without cultural reports. These were received on appeal. The Court of Appeal discounted Mr Wilson’s starting point by a

19     R v Pohatu-Hardiman, above n 8, at [2].

20 At [2].

21 At [2].

22 At [25].

23     Whittaker v R [2020] NZCA 241.

24 At [51].

25 At [51].

26     R v Wilson [2018] NZDC 22004.

total of 20 percent given his “rehabilitative prospects” and “background of severe deprivation and disadvantage”.27 It allowed a slightly higher figure, 25 percent, for Mr Poi; but this included recognition of his “diminished intellectual capacity”.28

[27]   Carr v R involved very serious offending.29 Mr Carr committed many aggravated robberies and other offences. His co-defendant, Mr Anderson, committed two robberies and an aggravated assault. On appeal, Mr Carr’s discount was capped at 15 percent because “the extent of the offending precludes a greater allowance”.30 Mr Anderson was given the same discount on appeal.

[28]   In Waikato-Tuhega, the 19-year-old defendant committed two aggravated robberies and other offences. Emphasising this area requires a holistic approach to an offender’s background, the Court of Appeal increased the discount to 15 percent.31

[29]   In Aramoana v R, the defendant and another inflicted serious violence in the context of a single aggravated robbery. The Court of Appeal concluded the discount for the defendant’s background should have been “around 10 percent”, a higher figure than that allowed by the Judge at first instance.32

[30]   A similar picture emerges from recent cases involving sexual violence.   In   R v King the sentencing Judge deducted 9.5 percent for the defendant’s background, which included systemic disadvantage.33 The Court of Appeal concluded Mr King’s “troubled  and  unhappy  upbringing”34  warranted   “discount   in   the   region   of 15 percent”.35 The appeal was dismissed, however, as the sentence was not manifestly excessive.

[31]   In R v Williams, the defendant was convicted of violent offending against his former partner and an offence of rape. He was imprisoned for nine years and two

27     Poi v R [2020] NZCA 312 at [39].

28 At [49].

29     Carr v R, above n 13.

30 At [67].

31     Waikato-Tuhega v R, above n 12, at [73].

32     Aramoana v R, above n 13, at [14].

33     R v King [2019] NZDC 25776.

34     King v R [2020] NZCA 446 at [27].

35 At [34].

months. The Judge  discounted  the  starting  point  by  just  over  10  percent  for  Mr Williams’ “difficult upbringing”.36 This included poverty; early exposure to drugs, alcohol and family violence; “countless beatings” as a child; intervention by the authorities; “lack of cultural connection”; exposure to gangs; and sexual abuse of   Mr Williams while in state care.37

[32]   Mr Williams appealed. The Court of Appeal said sexual offending did not preclude discount for an offender’s background, but the level of discount would be “highly contextual”, and influenced by the offending and “principles of sentencing”.38 It concluded “a discount of 15 percent would have been more appropriate”,39 but dismissed the appeal as “any deficiency is marginal at best” given all of the circumstances.40

[33]   This analysis reveals the level of discount Mr Popata received—20 percent— is within the range identified by recent authority and, if anything, toward the upper end of the range. Another aspect of Heta deserves mention here. While Whata J considered 30 percent might be available for personal mitigating features encompassing systemic disadvantage, that figure also included the defendant’s “significant strides ... toward rehabilitation”.41

[34]   In summary, while Mr Popata’s co-defendant received somewhat greater discount for his background, that offender was sentenced by a different Judge who appears to have focussed on this aspect. Comparison between personal circumstances of offenders is also difficult. Most importantly, the level of Mr Popata’s discount is well supported by recent authority. So, Mr Popata has not demonstrated error in this aspect of his sentence.

[35]   I conclude this topic on a cautionary note. This area of the law is difficult because of the tension arising from opposing principles, which reasonable minds may weigh differently. When striking the balance, Courts must remain mindful of

36     Williams v R [2021] NZCA 535 at [100].

37 At [112].

38 At [114].

39 At [115].

40 At [116].

41     Solicitor-General v Heta, above n 16, at [64(g)].

responsible community opinion, on which the administration of criminal justice is ultimately founded.42

[36]   Mr Timms’ secondary point can be addressed swiftly. Mr Popata did not plead guilty to the second aggravated robbery until 11 months after he had been charged. He then attempted, unsuccessfully, to vacate that plea, including on appeal. Mr Popata did not plead guilty to the first aggravated robbery until almost three years after being charged. The delay had an impact on at least one of the victims, who explained as much in her victim impact statement.

[37]   Mr Popata’s alleged remorse sat awkwardly with this sequence. It was open to the Judge to make no allowance for this reason, particularly as Mr Popata’s expressions of remorse were just that. No error arises here either.

Result

[38]The appeal is dismissed.

……………………………..

Downs J

42     Cooke P made a similar observation in 1995 when explaining the importance of propensity evidence in criminal cases; see R v F CA227/94, 28 March 1995, at p 5.