Purua-King v R - [2020] NZCA 61

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA392/2019
[2020] NZCA 61

BETWEEN	KENI PURUA-KING Applicant
AND	THE QUEEN Respondent

Court:	Miller, Dobson and Moore JJ
Counsel:	N P Chisnall for Applicant J A Eng for Respondent
Judgment: (On the papers)	16 March 2020 at 11.30 am

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

This is an application for leave to bring a second appeal against sentence. It has been decided on the papers. The application is said to raise important questions about treatment of disparity under the three-strikes legislation and allowances for youth and cultural background.

The circumstances

Mr Purua-King was one of three offenders sentenced in the District Court for an aggravated robbery, which is a serious violent offence for the purposes of s 86A of the Sentencing Act 2002. It was also a serious offence in fact. The three offenders disguised themselves and robbed a convenience store, using a knife and threats of violence to overcome the owners’ resistance. His was a stage 2 offence, meaning that absent exceptional circumstances he must serve the entire sentence without possibility of parole.[1] He was also convicted of unlawfully taking a motor vehicle.
[1]Sentencing Act 2002, s 86C. See Barnes v R [2018] NZCA 42, [2018] 3 NZLR 49.
The starting point adopted by the sentencing judge was four years, nine months imprisonment.[2] Because Mr Purua-King would have to serve the sentence without parole, Judge Clark declined to uplift the starting point for his previous convictions. Although he was 23 at sentencing he was given a discount of approximately 10 per cent for youth. An additional discount of 5 per cent was given for genuine remorse and a further 5 per cent for matters canvassed in a s 27 report, which pointed to insight and prospects of rehabilitation. The Judge allowed 25 per cent for his guilty plea. The effective sentence was two years, nine months imprisonment.
[2]R v Purua-King DC Manukau CRI-2018-057-1251, 3 December 2018 [Sentence indication]; and R v Purua-King [2019] NZDC 11412 [Sentencing notes].
The Judge adopted the same starting point for an equally culpable co-offender who had previously committed a stage-1 offence but through some oversight had not been given the statutory warning.[3]

Disparity

[3]Sentence indication, above n 2, at [5]. The end sentences are not directly comparable because the co-offender was also sentenced for other offending.

For Mr Purua-King, Mr Chisnall contends that a reasonably minded observer, aware of all the circumstances of the offence and the offenders, would think something has gone wrong with the administration of justice given that he must serve his entire sentence without parole while it is very likely that his co-offenders will not.
In the High Court, Woolford J responded that this is exactly what was intended by the legislation and the reasonable observer would accept that any disproportionality results from the design of the three…

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 Purua-King v R

Details

AGLC: Purua-King v R [2020] NZCA 61
Case: [2020] NZCA 61
Decision Date: 16 March 2020 at 11.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application for leave to bring a second appeal against sentence from Keni Purua-King. The application, dismissed on the papers, sought to address issues concerning disparity under the three-strikes legislation and allowances for youth and cultural background in sentencing. Purua-King, one of three offenders convicted for an aggravated robbery, was sentenced to two years and nine months imprisonment without parole eligibility due to his stage-2 offence under the three-strikes legislation. The sentencing judge had given a 20 per cent discount for youth, remorse, rehabilitative prospects, and cultural background, but Purua-King argued that this did not sufficiently recognise his background's contribution to his offending. The court found that the sentencing judge had appropriately considered Purua-King's background and circumstances, noting that more immediate causes, such as methamphetamine use, had a stronger link to the offence. The court also concluded that the disparity in sentencing was a result of the design of the three-strikes regime rather than an error in its operation. The application for leave to appeal was dismissed as it did not raise a question of general or public importance.

Orders