Potae v The Queen

[2016] NZCA 146

IN THE COURT OF APPEAL OF NEW ZEALAND

CA648/2015
[2016] NZCA 146

BETWEEN	NAVARRO SHAYDE POTAE Appellant
AND	THE QUEEN Respondent

Hearing:	5 April 2016
Court:	Stevens, Asher and Williams JJ
Counsel:	M Starling and L M Drummond for Appellant K A Courteney for Respondent
Judgment:	22 April 2016 at 11.15 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Williams J)

Introduction

1. Following a jury trial before Judge Garland in the District Court at Christchurch, Mr Potae was found guilty of causing grievous bodily harm to Shaun Wilson with the intention of causing him grievous bodily harm.  He had already pleaded guilty to a separate count of assaulting Mr Wilson with intent to injure him.  On these two counts, Mr Potae was sentenced by the trial Judge to an effective term of five years’ imprisonment.[1]

   [1]R v Potae [2015] NDC 11120.  On the lead charge of causing grievous bodily harm the sentence was five years’ imprisonment and on the assault with intent to injure charge a concurrent sentence of six months’ imprisonment was imposed.

2. Mr Potae appeals against his sentence on the ground that the term imposed is manifestly excessive.  Counsel for Mr Potae conceded prior to the hearing before us that “the end sentence cannot responsibly be argued to be manifestly excessive”.  The appeal is nonetheless maintained with counsel instructed to pursue it.  It is necessary to address the ground advanced accordingly.

Background

1. The facts may be summarised briefly.

2. Mr Potae and Mr Wilson were at a party when they fell into disagreement.  Both were intoxicated.  The disagreement continued with Mr Potae attempting to pick fights with Mr Wilson throughout the evening.  Mr Wilson was eventually asked by the host to leave and he complied.  As he left, Mr Potae attacked him.  Mr Potae grabbed Mr Wilson, punching him in the head and causing him to fall to the ground.  Mr Potae then pinned him down and punched him in the face several more times in circumstances where Mr Wilson could neither move nor defend himself.  This was the factual basis for the assault with intent to injure charge.

3. Some onlookers eventually managed to pull Mr Potae off Mr Wilson.  Mr Wilson got up and ran a short distance before Mr Potae launched a second, more serious, attack.  This time Mr Potae punched and kicked Mr Wilson in the head while he lay face up on the ground and stomped Mr Wilson’s legs with sufficient force for onlookers to assume he was trying to break them.  Another onlooker intervened, the attack stopped and Mr Potae moved off.  By this point Mr Wilson was unconscious, unresponsive and choking on his own blood.  This was the factual basis for the more serious grievous bodily harm charge.

4. As a result of the attack, Mr Wilson suffered serious injuries.  He experienced significant bruising and swelling to his left eye, his right ear, the left side of his chest, and left upper arm.  The arm also bore a footprint.  His right shoulder was badly grazed, and his nose and right clavicle were both broken.  He also suffered a significant head injury and bleeding from his left eye and ear.  The head injury has produced on-going and long-term effects in the form of repeated short-term memory loss and sudden bouts of anger.  These effects have prevented Mr Wilson from working.

Sentencing decision

1. On the lead charge of causing grievous bodily harm, the sentencing Judge applied the guideline decision of this Court in R v Taueki.[2]He identified the following relevant culpability factors: the extreme violence of the attack, the attack to Mr Wilson’s head, a moderate degree of premeditation, and the seriousness of Mr Wilson’s injuries including the long term effects of his head injuries.  This placed the offending at the lower end of Band 2 of Taueki (starting points of between five and 10 years).  A starting point of five and a half years’ imprisonment was adopted, with a six month uplift to reflect the initial assault with intent to injure.

   [2]R v Taueki [2005] 3 NZLR 372 (CA).

2. A discount of one year was then applied for youth (Mr Potae was 18 years old at the time), genuine regret, and an offer to pay reparation.  This led to an end sentence on a totality basis for the lead charge of five years’ imprisonment.  A separate concurrent sentence of six months’ imprisonment was then imposed with respect to the assault with intent to injure.

Our analysis

1. As counsel properly accepted, the effective sentence imposed cannot be faulted.  The characteristics of the attack on Mr Wilson engaged four, if not more, of the aggravating factors referred to in Taueki,[3] all of which were set out by the Judge.  The discount for youth was, if anything, generous.  The methodology and result were entirely in line with the guidance in Taueki.

   [3]At [31].

2. We do not, of course, ignore Mr Potae’s genuine remorse, his professed intention to learn from his mistake and turn his life around, or the strong support he has from his family and employer.  These matters are indeed important, as reflected in the discount adopted by the sentencing Judge.  But, given the seriousness of the attack and its consequences for Mr Wilson, no greater discount could be justified.

Result

1. The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent