R v Pomana - [2007] NZCA 138

IN THE COURT OF APPEAL OF NEW ZEALAND
CA411/06
[2007] NZCA 138
THE QUEEN
v
ADAM SHELFORD POMANA
Hearing:7 March 2007

Court:Ellen France, John Hansen and Williams JJ
Counsel:A Stevens for Appellant

C L Mander for Crown

Judgment:19 April 2007 at 3 pm

JUDGMENT OF THE COURT

A Extension of time for the filing of the appeal is granted.
BThe appeal against conviction was abandoned and is dismissed accordingly.
CThe appeal against sentence is allowed only to the extent of rescinding the order for a minimum period of imprisonment.

REASONS OF THE COURT

(Given by Williams J)

Appeal
[1]       Following trial in the Dunedin District Court the appellant, Mr Pomana, was convicted on one count of aggravated burglary and another of breaching a protection order.
[2]       On 2 February 2006 Judge O’Driscoll imposed concurrent sentences of four and a half years’ imprisonment on the former and three months’ imprisonment on the latter and directed that Mr Pomana serve a minimum period of imprisonment of 50 per cent of the sentence on the aggravated burglary count.
[3]       Mr Pomana now appeals to this Court on the grounds that the sentence was manifestly excessive.
Facts
[4]       The facts may be conveniently taken from the sentencing Judge’s remarks:
[2]       … the victim in this matter resides at a rural property …. She resides there with her three children. She has previously been in a relationship with you and you are the father of her youngest child. You were served with a Protection Order in 2001. At around about 11 o’clock on Friday 24 June 2005, you telephoned the victim at your home address. You wanted to go there because it was her birthday the following day. It seems that the conversation between you and her was cut short and you then arrived at her house at around midnight. …
[3]       The complainant’s evidence was that while you were inside her house, she was subject to physical abuse by you and emotional abuse. During the course of her evidence, she said that while you were there you accused her of being involved in a relationship with someone else and you underwent a process of intimidating her. She said that you took a butcher’s knife and threw it in her direction and that it went past her and into the door that was behind her. She said that you grabbed a pool cue and pushed it up against her. She said at one stage you kicked her foot and that she had a knee injury prior to that that you were aware of. She said that you grabbed a necklace that she was wearing and that you used a cigarette lighter to burn it off. The necklace was then thrown into the fire. She said that you had a set of hand shears. … You held that up to her face on several occasions. You put the shears into the fire and heated the shears. You then took the shears out of the fire and…

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 R v Pomana

Details

AGLC: R v Pomana [2007] NZCA 138
Case: [2007] NZCA 138
Decision Date: 19 April 2007

CaseChat Overview and Summary

The appellant, Adam Shelford Pomana, was convicted by the Dunedin District Court on one count of aggravated burglary and another of breaching a protection order. He was sentenced to four and a half years’ imprisonment for the aggravated burglary and three months’ imprisonment for the protection order breach, with the sentences to run concurrently. A minimum period of 50 per cent of the aggravated burglary sentence was also imposed. Pomana appealed to the Court of Appeal of New Zealand against the conviction and sentence. The appeal against conviction was abandoned, and the appeal against sentence was allowed only to the extent of rescinding the order for a minimum period of imprisonment.

The primary legal issue before the Court of Appeal was whether the sentence imposed by the District Court was manifestly excessive. Pomana's counsel argued that the sentence was disproportionately severe given the effect of prison on the appellant, citing his psychiatric history and the worsening of his condition post-sentencing. The Crown argued that there was no sufficient evidence that Pomana's mental disorder played a part in his offending, and that the sentence was appropriate to protect the complainant, her children, and the public.

The Court of Appeal agreed with the sentencing Judge that the offending was serious, causing significant stress to the complainant and her children, and committed in a way designed to exert maximum psychological stress on her. The Court found that while the appellant's persecutory delusions and focus on prison staff had worsened since sentencing, they were capable of being controlled by appropriate medication. However, to ensure maximum flexibility in managing Pomana within the hospital or prison environment, the Court rescinded the order that he serve at least 50 per cent of the sentence imposed before becoming eligible for parole.

In conclusion, the Court of Appeal granted an extension for the filing of the appeal out of time, dismissed the appeal against conviction, and allowed the appeal against sentence to the extent of rescinding the order for a minimum period of imprisonment. This decision was made to provide the responsible authorities with flexibility in managing Pomana's condition without the restrictions a minimum period of imprisonment might impose.

Orders