Puna v The Queen - [2010] NZCA 572

IN THE COURT OF APPEAL OF NEW ZEALAND
CA486/2010
[2010] NZCA 572
BETWEENSHIANNE ROSE PUNA

Appellant

ANDTHE QUEEN

Respondent

Hearing:25 November 2010

Court:Harrison, Ronald Young and Keane JJ
Counsel:A J Hamblett for Appellant

M E Ball for Respondent

Judgment:25 November 2010

ORAL JUDGMENT OF THE COURT

A The appeal is allowed.
BThe sentence of 18 months’ imprisonment is quashed. A sentence of 14 months’ imprisonment is substituted.

REASONS OF THE COURT
(Given by Harrison J)
Introduction
[1]        Shianne Puna appeals against a sentence of 18 months’ imprisonment imposed upon her in the District Court in Hamilton in July 2010 following her pleas of guilty to 12 charges of using a document for pecuniary advantage, receiving, shoplifting, possessing methamphetamine and possessing a utensil for using methamphetamine. The Court also cancelled Ms Puna’s existing sentences of 120 hours and 80 hours of community work respectively, and ordered her to pay reparation of $5,397.[1]
[1]      R v Paki DC Hamilton CRI-2009-019-2400, 22 July 2010.
[2]        As this appeal is fact specific and does not raise any points of principle, it is appropriate to deliver judgment orally.
District Court
[3]        The relevant facts are not in dispute.
[4]        In July 2008 Ms Puna’s co-offender, Ian Paki, stole a wallet from a woman at a shopping centre in Hamilton. The couple used bank and retail cards taken from the wallet on 44 different occasions in the subsequent fortnight. By this means they obtained property and cash to a total value of $10,690.
[5]        In April 2010 the police visited the address of a property occupied by Mr Paki and Ms Puna in Hamilton. They were looking for both of them for breaches of conditions of bail and failing to attend court. As a result of Mr Paki’s attempts to prevent them from entering the house, the police conducted a search. Ms Puna was found hiding underneath the house concealed by a mattress. She refused to surrender voluntarily to the police and had to be forcibly removed.
[6]        The police found a point bag of methamphetamine in Ms Puna’s handbag. Elsewhere they located methamphetamine pipes in her jacket and in her bag which was hanging on the wall.
[7]        Mr Paki and Ms Puna appeared for sentencing together. The sentencing Judge, Judge Wolff, adopted different starting points for each; two and a half years for Mr Paki and two years for Ms Puna. After allowing for pleas of guilty, he fixed Ms Puna’s end sentence at 18 months’ imprisonment, cancelled her existing sentence and ordered her to pay reparation. Mr Paki was sentenced to two years’ imprisonment and does not appeal.
[8]        The Judge was not satisfied that home detention was an appropriate sentencing option for Ms Puna. She did not have a suitable address and in any event the circumstances precluded that sentence.
Appeal
[9]        Ms Puna’s counsel, Mr Hamblett, submits that the starting point set by Judge Wolff for Ms Puna’s offending was excessive. He says that it should have been 12 months at…

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 Puna v The Queen

Details

AGLC: Puna v The Queen [2010] NZCA 572
Case: [2010] NZCA 572
Decision Date: 25 November 2010

CaseChat Overview and Summary

In the case of Puna v The Queen, the appellant, Shianne Rose Puna, appealed against a sentence of 18 months' imprisonment imposed on her by the District Court in Hamilton. Puna had pleaded guilty to 12 charges, including using a document for pecuniary advantage, receiving, shoplifting, possessing methamphetamine, and possessing a utensil for using methamphetamine. The District Court also cancelled her existing sentences of 120 hours and 80 hours of community work and ordered her to pay reparation of $5,397. The appeal was heard by the Court of Appeal of New Zealand on 25 November 2010.

The legal issues before the Court of Appeal included the appropriateness of the starting point for Ms Puna's sentence, which was set at two years by the sentencing Judge, and whether a further deduction should have been made for her age, pleas of guilty, and lack of relevant previous convictions. The Court also needed to determine whether Ms Puna's culpability was less than that of her co-offender, Ian Paki, who had stolen the wallet and used the credit cards more frequently.

The Court of Appeal found that the starting point set by Judge Wolff for Ms Puna's offending was excessive and re-assessed the sentence on a fresh basis. They were satisfied that Ms Puna's culpability was considerably less than that of Mr Paki and fixed a notional two-year starting point for Mr Paki for the offending itself, with an additional six months for aggravating features. The Court concluded that the appropriate starting point for Ms Puna necessary to reflect her relative culpability and responsibility was 15 months' imprisonment. However, the Court also considered the aggravating features in Ms Puna's offending, such as her failure to comply with a community work order and her failure to appear at an earlier trial. They determined that these features justified a modest increase in the starting point for Ms Puna's sentence from 15 months to 18 months' imprisonment. A reasonable allowance was made for pleas of guilty, resulting in a deduction of four months from the adjusted starting point of 18 months, leading to a sentence of 14 months' imprisonment.

The Court of Appeal allowed Ms Puna's appeal, quashed the sentences imposed in the District Court of 18 months' imprisonment on the charges of using documents, and instead imposed a sentence of 14 months' imprisonment on those charges. In all other respects, the sentences were unchanged.

Orders