R v Potaka-Alexander
[2012] NZHC 2788
•24 October 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2011-090-6777 [2012] NZHC 2788
THE QUEEN
v
RANGI PAUL POTAKA-ALEXANDER
Hearing: 24 October 2012
Counsel: Y Yelavich for the Crown
M Goodwin and M Dixon for Mr Potaka-Alexander
Judgment: 24 October 2012
SENTENCE OF WOODHOUSE J
Solicitors / Counsel:
Ms Y Yelavich, Meredith Connell, Office of the Crown Solicitor, Auckland
Mr M Goodwin, Barrister, Auckland
R V POTAKA-ALEXANDER HC AK CRI-2011-090-6777 [24 October 2012]
[1] Mr Potaka-Alexander, you may remain seated until I come to impose the sentence in a formal way. You appear for sentence for four offences. I need to explain all of this not just to you but to the victims and to the community as a whole, so it will take some time.
[2] The most serious of the offences is wounding with intent to cause grievous bodily harm. You were found guilty of this crime after a trial. The maximum penalty is 14 years imprisonment. And you should reflect on that.
[3] You pleaded guilty to the remaining charges. These are: attempting to pervert the course of justice, which has a maximum penalty of 7 years imprisonment; assault with intent to injure, with a maximum penalty of 3 years imprisonment; and assaulting a female, with a maximum penalty of 2 years imprisonment.
The facts
[4] The wounding and assault with intent to injure both occurred early in the morning of 26 August 2011 and both involved attacks by you on Police Constable Iversen.
[5] On the morning of 26 August 2011 there was a serious altercation between you and your former partner, Ms K. Ms K ran from the house and got neighbours to phone the Police. Constable Iversen arrived by himself. While he was seated in the patrol car talking to Ms K you got into the middle of the back seat of the car. Ms K was sitting in the front passenger seat next to Constable Iversen who was in the driver’s seat. Both of them therefore initially had their backs to you. Constable Iversen did not immediately realise that you were Ms K’s partner and he did not initially sense that there was any threat. He asked who you were. He did not challenge you in any way. You said to Ms K: “It’s your fault that I have to do this”. At this point Constable Iversen saw that you had a knife in one of your hands. It was a long bladed kitchen knife. Without any warning you looked at Constable Iversen wide eyed, said to him you were going to kill him and lunged at his head with the knife. The Constable put up his left hand to try and divert the knife, and grabbed the
blade with his right hand. You lunged at the Constable with the knife a second time. During the trial you said you thrust at him, but did not lunge. The difference is irrelevant. There was a struggle for a short period until, with some help from Ms K, Constable Iversen was able to get the knife away from you. By then he was bleeding from wounds to his face and both hands.
[6] The second serious attack on the Constable occurred soon after. I am going to read a substantial part of Constable Iversen’s victim impact statement. This sets out in some detail the facts that I accept were established as well as describing the ways in which this manic attack by you affected the Constable in other ways, apart from the physical injuries. I also record that at the trial the Constable gave his evidence in an entirely straight forward and understated manner and in spite of the fact that what happened to him must have been a very frightening experience. This is his description in the victim impact statement – and I am reading:
When the offender entered my police car I didn’t know what was transpiring, I was trying to put two and two together. Why was this person jumping into my police vehicle? When I saw the knife, my heart dropped. I remember his face, his eyes. They were wild eyes, big and wide. He was on a mission and that was to kill me. I can still see his face now.
He was yelling at the female victim I had in my car, she was screaming at him, I was yelling at him to put the knife down. We were all yelling. It was a state of chaos as I struggled with him. I was trying to protect myself and the victim.
I could feel the knife he had, the blade slicing into my face. I knew I was in a very serious situation and needed to get help.
I tried to get through to police communications but the line was engaged. I remember thinking how unfair this moment was. I was gutted. I was hitting all the buttons to get an emergency channel. I was desperate.
The entire time the offender was ranting and raving. I have no idea what he was talking about.
I kept looking towards the victim; I wanted to make sure she was secured and ok. The incident felt like it was never-ending.
I interpolate here that the knife was eventually taken away from you and you got outside the car. And then the Constable continues in his statement:
The struggle continued outside of the car and he was kneeing me in the chest and kicking me, those hits took away my breath. I was trying to restrain him because I believed he was a serious threat to both the victim and myself. At one stage he over-powered me and I felt my neck cracking as he pushed my head against the door frame of the car.
It was one of those moments when your life flashes in front of you. But I had no flash; I just had an overwhelming sense that this was my end. I pleaded with him and tried to get him to calm down, then closed my eyes and waited.
A shift in his body weight allowed me to get free where I eventually was able to lock him in my patrol car and waited for help.
That is the end of what I am reading.
[7] The assault with intent to injure occurred when you had the Constable’s head against the door frame, as he has just described it. At this point you were lying in the back seat of the car pinning his head against the top of the door frame with your foot and obviously using a great deal of force. And this is really quite some time after the knife was taken away from you.
[8] The attempt to pervert the course of justice occurred after your arrest. You wrote a letter to Ms K asking her to support a story you concocted to try to avoid conviction for the attacks on Constable Iversen. You told Ms K that she was to engage a lawyer to prepare an affidavit for her. In this affidavit she was to make statements on your behalf which you have admitted are lies. These were to the essential effect that you had taken drugs which had caused you to black out and have no control over your body or your mind. This even went to the extent of telling her to say that some of the drugs had come from her.
[9] The assault on a female was an assault on Ms K in May 2011, that is to say some 3 months before. Although you pleaded guilty to this charge, there was evidence about this assault at the trial because it was relevant in relation to other matters. Ms K said that you punched her in the eye during an argument and this caused her eye to become swollen. You denied punching her but admitted back- handing her around her cheekbone. I am satisfied that you punched her in the eye.
Victim impact statement
[10] I have already stated, there is the victim impact statement from Constable
Iversen. There does not appear to be one from Ms K.
[11] In addition to the matters apparent from what I have already read from the Constable’s statement, there is the following. He received a number of wounds to his face and both hands. There was bruising to his face, scrapes and abrasions and tenderness all over his body. As the Constable said, in effect, although the physical injuries heal reasonably quickly, the emotional impact takes longer to go. In spite of his courage, impacts of this nature may be with him for a reasonably long time. Aspects of this are made clear in the Constable’s recent update to his victim impact statement.
Personal
[12] I come to your personal circumstances Mr Potaka-Alexander. You were born in February 1989. You were therefore aged 22 when you committed these crimes. I have also noted the advice today from Mr Goodwin about your family background which was hardly promising from your point of view, and I acknowledge that.
[13] You have what is a reasonably large number of previous convictions for a young man. Most of these, however, I leave to one side because they are different from the present offences – in large measure they are property offences, such as 18 burglaries, and driving offences. You did receive a sentence of 3 months imprisonment for a domestic assault in 2007. And there was a sentence of 1 month imprisonment for assaulting a police officer in 2010. But in spite of the nature of those offences I do not intend to attach any real weight to them in fixing the end sentence.
[14] You plainly have an inability to control your temper. You also have a serious problem with alcohol. The evidence as to what occurred on the night and early morning of 25-26 August, and which you admitted or which is established by the jury’s verdict, shows that your temper becomes uncontrolled rage when you have
consumed a lot of alcohol. And those are two fundamental things you have to deal with. You say you recognise that, and I hope you really do.
[15] On your behalf Mr Goodwin has referred to remorse that you have expressed and the motivation to deal with the problems. These matters are referred to in the pre-sentence report. And in addition, Mr Potaka-Alexander, I acknowledge the letter I have got from you this morning and the two letters you have written to the victims.
Sentence
[16] I come more directly to the sentence. As I am sure you are aware these crimes are going to result in a lengthy sentence of imprisonment. To decide the length of the sentence I will take the most serious offence – wounding with intent to cause grievous bodily harm – as what is called the lead offence. I need to fix a starting point, which is the length of a prison sentence based on the seriousness of the offence itself. This is before taking into account the other offences and before any further increases or decreases in the length of the sentence having regard to circumstances personal to you and the guilty pleas.
[17] The Crown submitted that the starting point should be between 8 to 8 ½ years, although this is directed to both offences against the Constable. On your behalf Mr Goodwin submitted that the starting point, for both offences against Constable Iversen, should be between 4 to 5 years imprisonment.
[18] As you have heard, a Court of Appeal case called Taueki[1] provides guidelines for sentences such as wounding with intent to cause grievous bodily harm. There are ranges of sentences – called bands – depending on the gravity of the offence assessed having regard to aggravating features. Band 1 is 3 to 6 years imprisonment; band 2 is 5 to 10 years imprisonment; and band 3 is 9 to 14 years imprisonment. Determining which band is appropriate depends in considerable measure on the nature and the number of aggravating features of the offence itself. These are also
set out in the Taueki case in broad terms.
[1] R v Taueki [2005] 3 NZLR 372 (CA)
[19] Mr Goodwin submitted, in effect, that your offending comes towards the top of band 1 or at the very bottom of band 2. This was based in part on a submission that the Crown’s starting point resulted from too much weight being placed on the potential harm to Constable Iversen and insufficient weight being attached to the relatively minor injuries. Both counsel also referred to some other cases, which I will note in a moment.
[20] I am satisfied, having regard to the broad guidelines in Taueki, that the wounding with intent to cause grievous bodily harm, by itself, comes well within band 2. In Taueki the Court said that band 2 will be appropriate where the offence involves two or three aggravating factors as were listed by the Court. In this case, as
I have already said in discussions with counsel, there are more than three.
First, there was a degree of premeditation. The opposite of premeditation is an impulsive attack or a reaction to an unexpected event. That simply does not apply. In this case the altercation between you and Ms K was over – it was long over. When she ran from the house you initially followed her and then went back to the house. You then came out of the house, some minutes later, and got into the back of the police car with a knife. And you managed to do that without Constable Iversen realising you were there until you opened the door. Mr Goodwin submitted that any premeditation was limited on the basis that you actually got into the car with the knife to cut the electronic monitoring bracelet from your leg. The bracelet was found in the police car, but neither Ms K nor Constable Iversen saw you cut this off your leg in the car. I am satisfied that what you were doing was making some sort of enraged statement by getting in the car intending violence. There was premeditation. And the alcohol, Mr Potaka-Alexander, does not diminish this
at all.
Thesecond aggravating factor is that you used a particularly lethal weapon, as Mr Goodwin quite properly acknowledged.
Thirdly, you attacked the Constable’s head with the knife. That is a third aggravating factor and Mr Goodwin, again, properly acknowledged that it is
a serious aggravating factor.
Fourth, your victim was vulnerable. He was sitting in a car in front of you and therefore not well able to defend himself. Only his head was exposed. Added to this, as a policeman, he was bound to try to protect Ms K as well as
himself, as he has mentioned in that statement I read.
Thefifth aggravating factor is that this was an attack on a police officer carrying out his duties and carrying them out by himself. The reasons why this is a particular aggravating factor have been stated in numbers of Court of Appeal cases going back many years. I am not going to go into the detail. This was more recently discussed, and with reference to the older cases, in a Court of Appeal case in 2003 called Thomas.[2] In the Taueki case the Court provided an example of band 2 offending involving assault on a police officer carrying out his or her duties, and both counsel have referred to it. The Court
said a grievous bodily harm offence involving an attack by a single attacker using a weapon, where the attack is designed to avoid apprehension for other offending, but the injuries are not life threatening would require a starting point at the lower end of band 2. That is to say, between around 5 to 7 ½ years imprisonment. However, in this case there are the added aggravating features that I have referred to. What is more, the attack in this case was seriously life threatening, even if – as it fortunately turned out – the injuries
actually inflicted were not life threatening.
[2] R v Thomas (2003) 20 CRNZ 538.
[21] Mr Goodwin submitted that it is relevant that in the course of the struggle over the knife the Constable used his left hand to press the emergency button on the radio for assistance and that the struggle over the knife tapered off. I do accept that the fact that you did not try to continue the attack with the knife is a factor in your favour to a limited extent. This is because it indicates that you did not try to prolong the knife attack when, possibly, you could have. I do not accept the effective
submission that the absence of serious injuries to the Constable is a factor in your
favour. It is a factor that puts you within a sentencing band but it is not a factor in your favour. This is not an indication that the attack by you was a low level attack. The absence of serious injuries in this case simply amounts to the absence of a factor which, had there been more serious injuries, would have been an added aggravating factor.
[22] There are no mitigating factors in relation to the offence itself, such as provocation.
[23] As you are aware I have been referred to a number of cases and I will simply note their names for the record, together with one other. In addition to Taueki itself the case names are: Wi,[3] Whakataka,[4] Emery[5] and Leaf.[6]
[3] R v Wi [2009] NZCA 81.
[4] R v Whakataka HC Hamilton CRI-2007-019-3859, 23 September 2008, per Stevens J.
[5] R v Emery [2012] NZHC 391.
[6] R v Leaf HC Napier, CRI-2011-020-2954, 8 February 2011, per White J.
[24] Mr Potaka-Alexander, having regard to all of the matters I have referred to up to this point, and taking account of relevant purposes and principles of sentencing outlined in the Sentencing Act 2002 to the extent that they are not already incorporated in the Taueki guidelines, and of course having regard to the submissions that have been made very competently on your behalf, I am satisfied that the starting point for the wounding of the Constable with intent to cause grievous bodily harm should be 7 years 6 months imprisonment. I should say Mr Potaka-Alexander that before I heard the oral submissions but having read the written submissions, the starting point that I had in mind was substantially higher than that. That puts your offending in the middle of band 2.
[25] There must be an uplift because of the second attack on Constable Iversen and because of the other offences. Ms Yelavich, for the Crown, submitted that the uplift for the assault on Ms K and for attempting to pervert the course of justice should be in the vicinity of 1 years imprisonment. Mr Goodwin accepted that that would be an appropriate uplift or increase. The submissions of both counsel were on the basis that the starting point, which I have already dealt with, was fixed for both
offences against Constable Iversen. As I indicated during submissions I do not agree
with that approach. The second attack on Constable Iversen was a distinct offence. It occurred after both of you had got out of the car and when Constable Iversen was attempting to handcuff you. This was a serious assault in itself. The starting point for that offence, if it was the only offence I was considering, might be in the region of 1 ½, and perhaps even 2, years. I nevertheless do not intend to impose an uplift more than what is being submitted by both counsel because I have approached the matter slightly differently. The uplift will be 1 years imprisonment. That takes it at that point to 8 years and 6 months.
[26] This is a case where cumulative sentences might have been imposed for the assault on Ms K in May and for attempting to pervert the course of justice. However, I consider it is appropriate to deal with the sentencing in the way I have outlined to this point.
[27] I do not intend to increase the sentence because of your previous offences and there are no other personal factors justifying any increase. The personal factors that might justify some decrease in the sentence are the matters I have already referred to. Most significantly, Mr Potaka-Alexander, is your age. There are also expressions of remorse and a stated wish to deal with the alcohol and anger problems. I will come to the guilty pleas at the end.
[28] Although I have to say that I have some reservations as to the genuineness of what you have said, I will accept what you have said in relation to remorse and in relation to your intention to deal with the problems you have. In fairness to you I express these reservations because you plainly can be manipulative, as the attempt to pervert the course of justice shows. But I am giving you substantial benefit of the doubt. And it is a case – and I accept Mr Goodwin’s submission – where some mercy should be exercised, although there are limits as to how far that can be taken in terms of reductions in the sentence. I will allow a credit of 9 months in the sentence that would otherwise be imposed for these matters.
[29] That reduces the sentence, if my calculations are correct, to 7 years 9 months imprisonment. There are then the guilty pleas. You pleaded guilty to the three charges as I indicated. These pleas were entered on 12 September 2012, on the
morning the trial commenced. Mr Goodwin has provided explanations for the delay and I was aware of some of these before the trial commenced. Having regard to those matters, Mr Goodwin submitted that there should be a further reduction of the sentence of between 15-20%. I do not agree that the reduction should be to that extent. The Crown submitted that if there is any it should be nominal. I do consider, contrary to the Crown’s submission, that a reasonable allowance should be made. I will allow 10% for the guilty pleas. The end result, Mr Potaka-Alexander, is that the sentence is one of 6 years and 11 months imprisonment. There will be other sentences for the other offences, but they will not increase the overall sentence.
Formal sentence
[30] You should now stand.
[31] For wounding with intent to cause grievous bodily harm, you are sentenced to imprisonment for 6 years and 11 months.
[32] For assault with intent to injure, you are sentenced to imprisonment for 1 year and 8 months.
[33] For the offence of attempting to pervert the course of justice, you are sentenced to imprisonment for 1 year 6 months.
[34] For the offence of assaulting a female, you are sentenced to imprisonment for
1 year.
[35] As I have said, the sentences are concurrent. So the total is 6 years and 11 months.
[36] You should now stand down.
Addendum
[37] Following the sentencing Ms Yelavich, for the Crown, raised an issue as to whether there was an error in the calculation of the reduction for the guilty pleas.
[38] On review, I am satisfied that I applied the 10% to the wrong period of imprisonment. The 10% was applied to the total of 7 years 9 months referred to at [29] and being the end sentence for all offences, subject to the allowance for the guilty pleas. This produced a credit of 10 months and resulted in the end sentence of
6 years 11 months imprisonment for the lead offence.
[39] The error was in applying the 10% to the total of 7 years 9 months. This total included the starting point for the lead offence and that offence went to trial. The credit should only have been allowed, in an appropriate way, for that part of the sentence which related to the charges to which the prisoner had pleaded guilty. Had the percentage been directed to those elements of the sentence the appropriate deduction, in terms of time, should have been around 1 to 2 months, as Ms Yelavich submitted in her memorandum in which she addresses this issue. This is the resulting allowance from the percentage applied to the uplift of 12 months for the charges to which the prisoner pleaded guilty.
[40] This error results in a substantial benefit to the prisoner. However, I am satisfied that there is no proper basis upon which he can be recalled for the purpose of imposing a different sentence. Except in exceptional circumstances, my jurisdiction was at an end once formal sentence had been announced. In addition, Ms Yelavich’s researches, after filing the memorandum, led her to Frewer v R,[7]
which in turn refers to R v Palmer.[8]
[7] Frewer v R [2012] NZCA 187.
[8] R v Palmer [2007] NZCA 350.
[41] In the latter decision William Young P said that for the Court to recall a final decision, it would have to be satisfied that there was a fundamental error in procedure and that there is no alternative remedy and that a substantial miscarriage
of justice would result if the error is not corrected. Probably none of these factors
applies. And, from the Crown’s perspective there is the alternative remedy of an
appeal by the Crown.
Woodhouse J
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