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)

1. 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

1. 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.

2. 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].

3. 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.

1. 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.

2. 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 strikes regime rather than its operation by the courts.[4] 

   [4]Purua-King v R [2019] NZHC 1698 at [55].

3. This conclusion is plainly correct.[5]  In this case the offenders had all committed what was in fact and law a serious violent offence and the legislation is designed to deliver different parole eligibility outcomes according to their strike status.  A second appeal on the point has no serious prospects of success.  The sentencing judge in this case recognised, to the extent possible, the impact of the three strikes regime on Mr Purua-King.[6]

Youth and cultural background

[5]Barnes v R [2018] NZCA 42, [2018] 3 NZLR 49 at [77]; and Wipa v R [2018] NZCA 219 at [29]–[32].

[6]See Wipa v R, above n 5, at [33]–[38];  and Marsh v R [2019] NZCA 220 at [21]–[22].

1. As noted, Judge Clark deducted 20 per cent for youth, remorse, rehabilitative prospects and cultural background.  Mr Purua-King wishes to contend that this did not sufficiently recognise that his background contributed to his offending.  It is contended that the Judge gave too little weight to the s 27 report, reasoning rather that Mr Purua‑King had chosen to take himself out of his supportive whānau environment and place himself into a gang with which he remains affiliated.  The Judge characterised that as a poor decision for which he must be held responsible.  Mr Purua‑King now wishes to argue that the Judge held his gang involvement against him.  He says that his cultural background explains his gang membership and should permit an additional allowance.

2. We do not accept that the Judge made an error of principle. Raupatu (referring to Māori history of confiscation) and resulting social deprivation may lead to gang membership and on to index offending. But for sentencing purposes other causes, chief among them the decisions made by the offender, may weaken that linkage between background and index offence,[7] and ongoing gang involvement engages other sentencing considerations which may preclude a discount. We do not think the Judge was saying anything more than that.

   [7]Sentencing Act, s 27(1)(b).

3. Nor is it likely that a second appeal would affect the outcome in this case.  Judge Clark had the benefit of a s 27 report which gave a valuable account of Mr Purua-King’s background and circumstances and identified potential for rehabilitation through victim engagement or a hui with whānau.  The report explained that although he resents his whāngai adoption, which he attributes to his birth parents’ drug use, he was raised in a loving and supportive whānau.  So the connection to social deprivation is not especially strong, on the material before us.  The Judge did make an allowance for it, and the allowance for youth was generous.  On the facts, more immediate causes assumed prominence; Mr Purua-King himself attributed his offending to his methamphetamine use.  Finally, this was a serious violent offence for which the sentence must reflect denunciation, victim impact and community protection.[8]  Woolford J thoroughly considered all of this when dismissing the appeal.

Decision

[8]Arona v R [2018] NZCA 427 at [61], and cases cited therein.

1. In the result, we do not accept that the proposed appeal raises a question of general or public importance.  The application for leave to appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent