Puloka v The King

[2024] NZHC 2196

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000339

[2024] NZHC 2196

BETWEEN

MAKELANI PULOKA

Appellant

AND

THE KING

Respondent

Hearing:	29 July 2024
Appearances:	B C Moyer for Appellant B So for Respondent
Judgment:	6 August 2024

JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew on 6 August 2024 at 3.00 pm

pursuant to r 11.5 of the High Court Rules 2016.

Registrar / Deputy Registrar Date …………………………..

PULOKA v R [2024] NZHC 2196 [6 August 2024]

Introduction

[1]                 This is an appeal against a sentence of two years and three months’ imprisonment imposed in respect of charges of reckless discharging of a firearm1 and intentional damage.2

[2]                 The appellant contends that the sentence was manifestly excessive because the starting point was too high and insufficient credit was given for remorse, rehabilitation and youth mitigating factors. The starting point adopted was three years nine months’ imprisonment.

[3]The Crown opposes the appeal.

Factual background

[4]                 At about 11.45 pm on 19 July 2022, the victim, Ms A, had just been dropped off at home in Glen Innes by her three daughters. She was standing at her laundry window waving goodbye to the daughters as they reversed out of the driveway in their vehicle.

[5]                 Mr Puloka and his three co-offenders arrived at the address in two separate vehicles. One of them had a disagreement with Ms A’s sons who lived at the address with her.

[6]                 Mr Puloka and his co-offenders all exited the vehicles, two of them carrying shotguns. One of Mr Puloka’s co-offenders, Mr Texas Wiremu, shot at the house. Shotgun pellets entered the laundry window where Ms A was standing, causing glass from the window to fall into her hair. The same co-offender shot twice at the vehicle containing Ms A’s three daughters, puncturing two of the rear tyres. He then shot at a car parked in Ms A’s driveway. One of the offenders in the group said “That’s what happens when you fuck with family”. Mr Puloka and the offender group then left.

1      Crimes Act 1961, ss 198(2) and 66: maximum penalty of seven years’ imprisonment.

2      Crimes Act 1961, ss 269(2)(a) and 66: maximum penalty of seven years’ imprisonment.

[7]                 On 12 August 2022, Mr Puloka and the co-offender who fired the shots on the first occasion returned to Ms A’s address. They walked to the front door, each holding a firearm, one of which was a shotgun. The pair fired 12 shots into the front door of the address, causing extensive damage to rooms in the house. The property was empty, Ms A and her family having earlier moved out.

District Court sentencing decision

[8]                 Mr Puloka and his three co-offenders were sentenced in two separate lots. First, the District Court Judge sentenced Texas and Wiremu Doctor (father and son) on 12 April 2024.3 Second, his Honour sentenced Mr Puloka and Mr Repia on 27 June 2024.4

[9]                 On the lead charge of recklessly discharging a firearm, the starting point adopted for Texas Doctor was four years and six months’ imprisonment.5 This was on the basis that he was the principal offender, being the person who fired the shots during the first incident. The Judge adopted a lesser starting point of three years and nine months’ imprisonment for Wiremu Doctor, Mr Puloka and Mr Repia, to reflect that they were parties to Texas Doctor’s offending.

[10]              For Mr Puloka, his Honour uplifted the starting point by 12 months to account for the intentional damage (and as he did for the only other offender involved in that offending, Texas Doctor). His Honour allowed a 10 per cent (5.7 months) discount for youth, 15 per cent (8.55 months) for addiction and cultural issues, 7.5 per cent (4.275 months) for remorse and rehabilitative efforts, 15 per cent (8.55 months) for his guilty pleas entered on the morning of trial, and five per cent (2.85 months) for the impact on his children (i.e. a total of 52.5 per cent, 30 months’ imprisonment).6

[11]This resulted in an end sentence of two years and three months’ imprisonment.

3      R v Doctor [2024] NZDC 8293. Subsequently, Texas Doctor successfully appealed his sentence on the ground that he should have received a discount for remorse; Doctor v R [2024] NZHC 1878. On appeal, Walker J held that a modest, discrete allowance of five per cent was warranted for remorse (but disagreed a greater discount was warranted for cultural factors): see [16] and [21] of the decision.

4      R v Repia and Puloka [2024] NZDC 15056.

5      R v Doctor, above n 3, at [38].

6      R v Repia and Puloka, above n 4, at [28].

Relevant legal principles

[12]              The appeal is governed by s 250 of the Criminal Procedure Act 2011, which provides that the Court must allow the appeal if satisfied there is an error in the sentence and a different sentence should be imposed.

[13]              The relevant principles on appeals against sentence were summarised by the Court of Appeal in Tutakangahau v R:7

(a)a successful appeal requires identification of an error and the appellate court to be satisfied a different sentence should be imposed;8

(b)the appellate court does not start afresh nor simply substitute its own opinion for that of the sentencing judge – error must be shown, “whether intrinsically, or as a result of additional material submitted on appeal”;9

(c)if there is a material error, the appellant court will form its own view of the appropriate sentence;10

(d)although not referred to in s 250(2), whether a sentence is “manifestly excessive” provides a helpful means of examining the significance of the error to decide whether a different sentence should be imposed;11 and

(e)the focus is on whether the end sentence was within range, not the process by which that sentence was reached.12

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

8      Tutakangahau v R, at [27].

9      Tutakangahau v R, at [30].

10     Tutakangahau v R, at [30].

11     Tutakangahau v R, at [32]-[33] and [35].

12     Tutakangahau v R, at [36] and [40].

Appellant’s submissions

[14]              Mr Moyer, for the appellant, submitted that the starting point for recklessly discharging a firearm should have been no greater than three years and six months’ imprisonment. He relies on R v Jolley in which one of the defendants, Mr Dashwood, was sentenced for participating in an organised criminal group and discharging a firearm with reckless disregard.13 Katz J held:14

Considering the facts of your case relative to these other cases, I have concluded that the appropriate starting point on the charge of reckless discharge of a firearm, if I was sentencing you on a standalone basis for that charge, would be three years’ and six months imprisonment.

[15]              Mr Moyer submitted that the level of premeditation and planning here was the same level as Mr Dashwood’s offending in R v Jolley, but the offending was less serious than that in Jolley because the aggravating Jolley feature of firing a shotgun was not present. He submitted that the appellant’s culpability is on-par with the culpability of Mr Dashwood in Jolley in that he was a mere foot soldier.

Mitigating factors

Remorse

[16]              Mr Moyer submitted that the appellant should receive separate discounts for remorse and rehabilitation, rather than a combined discount of 7.5 per cent. He says that the appellant’s co-defendant Mr Repia received a discount of five per cent alone for remorse.15 Mr Moyer points to Williams v R in which the defendant provided a letter to the Court expressing her desire to rehabilitate, her shame and embarrassment for her actions, awareness of the damage she had caused through her drug offending, and desire to make a positive change.16 The Court applied an eight per cent discount.

[17]              Mr Moyer submitted that the appellant’s remorse and insight into his offending is evident and that a discount of five to eight per cent is warranted for remorse in these circumstances.

13     R v Jolley [2018] NZHC 93.

14     R v Jolley, at [60].

15     R v Repia and Puloka, above n 4, at [36]–[38].

16     Williams v R [2023] NZCA 156.

Rehabilitation

[18]              Mr Moyer submitted that the appellant self-engaged and completed two rehabilitation courses while on bail:

(a)Vaka Pasifika 12 session non-violence programme.

(b)Eight sessions of Te Whānau o Waipareira alcohol and other drug counselling.

[19]              Mr Moyer submitted that a discount of five to eight per cent for rehabilitation efforts is warranted.

Youth

[20]              Mr Moyer submitted that the appellant’s co-defendant Wiremu Doctor received a discount of 15 per cent for youth. The age difference between the appellant and Wiremu Doctor is one year, and Mr Moyer submitted that this one-year difference should not equate to a five per cent difference in discounts. Mr Moyer submitted that the appellant has demonstrated a capacity for rehabilitation and that a 15 per cent discount for youth is warranted.

Summary

[21]              In summary, Mr Moyer submits the sentence is manifestly unjust. He submits that the following adjustments should be made to the sentence:

(a)A starting point of no more than three years and six months.

(b)A discrete discount of five to eight per cent for remorse.

(c)A discrete discount of five to eight per cent for rehabilitation.

(d)The discount for youth should be 15 per cent rather than 10 per cent.

[22]              Mr Moyer submitted that should home detention be available following these adjustments, it would be the least restrictive outcome and meet all the purposes and principles of sentencing.

Analysis and decision

Issue (a) – Starting point

[23]              I find that the Judge made no error in adopting a starting point of three years and nine months’ imprisonment for the lead offending.

[24]              There were significant aggravating features that the Judge properly took into account:

(a)Planning and premeditation – this was a targeted response to brewing tensions between the Doctor family and Ms A’s sons against a gang background. The offenders were evidently all involved in the plan. They drove to the address in two vehicles, armed, and one of the offenders said during the shooting “That’s what happens when you fuck with family”.

(b)Targeting of a residential home.

(c)Multiple shots fired – the offenders were armed with two shotguns. One of them was used and a total of four shots were fired.

(d)Risk of serious injury and multiple vulnerable victims – the shooting took place at a residential address at night. There was a greater risk therefore that the house was occupied at that time. The four victims were unarmed and defenceless. When a shot was fired at the house, Ms A was waving goodbye to her daughters through the laundry window which the shotgun pellets hit. Two other shots were deliberately fired at a moving vehicle carrying three people.

(e)The extent of harm and loss – the shots fired shattered the glass of the laundry window with the broken pieces falling into Ms A’s hair and puncturing the tyres of the moving car. The shooting caused significant trauma to the victims.

(f)Multiple offenders – there were four offenders involved in the first shooting.

[25]              I reject Mr Moyer’s submission that the appellant’s offending is on a par with that of Mr Dashwood in R v Jolley.17 Unlike the offending here, Mr Dashwood’s offending in Jolley was not premeditated.18 He did not know that a firearm was being taken to the scene. Furthermore, Mr Dashwood’s offending in Jolley involved fewer offenders, fewer shots being fired and the use of only one firearm. I agree with the submission of the Crown that  the  offending  here  is  more  serious  than  that  of  Mr Dashwood.

[26]              In McAllister v R,19 Dunningham J upheld a starting point of four years’ imprisonment on the lead charge of recklessly discharging a firearm. There were aggravating features, including the unlawful modification of a firearm, the fact the shot was fired in a residential street, the premeditation of the offending and the close proximity of shooting to the house (with a subsequently high risk of harm to those nearby).

[27]              In R v Kovaleski,20 Mallon J adopted a starting point of four years’ imprisonment where there were again aggravating features. Mr Kovaleski was a passenger in a car driven by his associates in a low-speed zone. They were overtaken by another vehicle occupied by two children and their parents. His associate tail-gated that vehicle. When they were one–two metres from the vehicle, Mr Kovaleski leaned out of the window and discharged a firearm twice at the vehicle. One bullet lodged in the vehicle’s frame a short distance from a child’s head, while the other made a hole in the driver’s door handle.

17     R v Jolley, above n 13.

18     R v Jolley, above n 13, at [23] and [29].

19     McAllister v R [2023] NZHC 3705.

20     R v Kovaleski [2022] NZHC 2654.

[28]              Having regard to all three cases referred to me, Jolley, McAllister and Kovaleski, I find that the starting point of three years and nine months’ imprisonment was within range.

[29]              I accept that in cases such as this, where the co-offenders are sentenced on different occasions, that defence counsel can be placed in an awkward situation, particularly when it comes to challenging starting points. Here, the District Court Judge had, of course, already adopted a starting point of three years nine months in respect of the co-offender, Wiremu Doctor. However, there was no error in the approach adopted by the District Court Judge and I agree with his starting point. Having said that, it is of course preferable that co-offenders be sentenced at the same time.

Issue (b) – Mitigating factors

[30]              The critical issue in any sentencing appeal is whether the end sentence was within range; the focus is not on the process by which that sentence was reached.21

[31]              I agree with Mr Moyer that the appellant has demonstrated remorse and insight into his offending, and that to his credit he has engaged in two rehabilitation courses while on bail. I also accept there is some merit in the submission about youth. However, as the Court of Appeal has frequently recognised, in fixing discounts the Court must be mindful that the end sentence remains a proportionate response to the offending, particularly where the offending is serious.22 It is always necessary to stand back and make an overall assessment when sentencing.23 Furthermore, discounts can overlap and “there is a risk that some statutory purposes of sentencing can be lost sight of when they are treated separately and simply tallied up.”24

[32]              In this case, the Judge concluded that there should be a total discount of 52.5 per cent or 30 months’ imprisonment. Overall, that was a substantial discount and, in my view, was an appropriate and proportionate response on the facts of this case.

21     Tutakangahau v R, above n 7.

22     McCaslin-Whitehead v R [2023] NZCA 259 at [61].

23     Dickey v R [2023] NZCA 2, [2023] NZLR 405 at [175].

24     Dickey v R, at [175].

[33]              I find that the end sentence reached, namely two years three months’ imprisonment was within range. There is no basis for it to be disturbed on appeal.

Result

[34]The appeal is dismissed.

Andrew J