R v Popo - [2009] NZCA 447

IN THE COURT OF APPEAL OF NEW ZEALAND
CA357/2009
[2009] NZCA 447
THE QUEEN
v
ANDREW POPO
Hearing:22 September 2009

Court:O'Regan, Venning and Winkelmann JJ
Counsel:C W J Stevenson for Appellant

C L Mander and H A Wrigley for Crown

Judgment:30 September 2009 at 11.30 am

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
Introduction
[1]       The appellant pleaded guilty to manslaughter, related driving offences and injuring with intent to injure. On the lead charge of manslaughter MacKenzie J sentenced him to imprisonment for eight years nine months with a minimum non-parole period of five years. He appeals against that sentence.
Background
[2]       In the early hours of the morning on Friday 11 July 2008 the appellant drove to a park on Davies Street adjacent to the Tawa swimming pool. There were a number of young people there drinking. The appellant and a person by the name of Eremiha exchanged words and an argument ensued. Eremiha took off his shirt and confronted the appellant. The appellant faced up to Eremiha and punched him to the ground. He then punched and kicked Eremiha about the head and body while he was on the ground. Each time Eremiha tried to get up the appellant punched and kicked him back to the ground. Eventually Eremiha managed to get away and ran across the park.
[3]       Although a disqualified driver, the appellant then took Eremiha’s car and drove off along Davies Street towards Porirua. The police were notified about the assault and told that Eremiha’s car had been stolen.
[4]       While this was going on, the victim of the manslaughter, Sergeant Wootton, was attending a domestic incident at an address in Dimock Street, Titahi Bay, with other police officers. They were alerted to the appellant’s actions. The accused continued to drive north at normal speeds over Raiha Street, through Elsdon and towards the roundabout at Placemakers, Porirua. A police officer approaching the roundabout saw the car the accused was driving at the roundabout and recognised it as the car reported as stolen. He turned his red and blue lights and siren on. The appellant refused to stop. He speeded up and drove eastwards through the roundabout onto Semple Street towards the Porirua mega-centre. The appellant drove through the mega-centre before driving back onto Semple Street heading westward, returning the way he had come. The police maintained pursuit towards Elsdon.
[5]       The appellant continued to drive through Elsdon and then eastward down Takapuwahia Drive to Titahi Bay Road. He drove across Titahi Bay Road eastward into Wineera Drive and then southward back towards the Porirua mega-centre. By this time one of the police constables who had been at the domestic incident in Dimock Street had left the address and proceeded towards Porirua to assist in the pursuit.
[6]       At times the appellant was driving on the wrong side of the road and cutting corners. He went through a roundabout on the wrong side 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 Popo

Details

AGLC: R v Popo [2009] NZCA 447
Case: [2009] NZCA 447
Decision Date: 30 September 2009

CaseChat Overview and Summary

The appellant, Andrew Popo, was convicted of manslaughter, related driving offences, and injuring with intent to injure. The case reached the Court of Appeal of New Zealand, which heard the appeal against the sentence on 22 September 2009. The appellant argued that the sentence of eight years and nine months with a minimum non-parole period of five years was manifestly excessive. The court was required to decide whether the sentence was appropriate given the severity of the offending and the mitigating factors.

The court considered the appellant's dangerous driving, which involved a high-speed pursuit with the police, driving on the wrong side of the road, and endangering the lives of many people. The appellant's actions resulted in the death of a police officer who was acting in the course of his duty. The court also noted the appellant's appalling driving record and his lack of remorse. The appellant's early guilty plea and some mitigating factors were taken into account when determining the sentence. The court concluded that the sentence was appropriate, as it was within the range for such a severe case of dangerous driving and manslaughter. The appeal against sentence was dismissed.

Orders