R v Poulgrain

[2019] NZHC 3119

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-044-001823

[2019] NZHC 3119

THE QUEEN

v

TE ARIKI POULGRAIN

Hearing:	28 November 2019
Appearances:	D M A Wiseman for Crown M N Pecotic for Defendant
Sentenced:	28 November 2019

SENTENCING NOTES OF VENNING J

Solicitors:           Meredith Connell, Auckland Counsel:  M N Pecotic, Auckland

R v POULGRAIN [2019] NZHC 3119 [28 November 2019]

[1]                 Te Ariki Poulgrain, you have pleaded guilty to one charge of wounding with intent to injure. The maximum penalty for the offence is seven years’ imprisonment.

[2]                 The charge is a strike offence. The Court is obliged to give you a warning in the following terms. Given your conviction for wounding with intent to injure you are subject to the three strikes law. I am now going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice outlining these circumstances and the consequences which lists serious violent offences:

(a)if you are convicted of any serious violent offence other than murder committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.

(b)if you are convicted of murder committed after this warning then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.

[3]                 You are currently on remand having completed your recent sentences as counsel advise. The charge you have pleaded guilty to arises out of your involvement in an attack on a fellow prisoner Mr Burton by you and two others.

[4]                 You pleaded guilty to an agreed summary of facts but then sought a disputed fact hearing as to whether you had used a shank in your attack on the victim, Mr Burton.1

[5]                 You, together with your co-defendants, Siuaki Lisiate and Tama Tapine, were serving time in the maximum security wing at Auckland Prison at Paremoremo. The victim, Mr Burton, was also a sentenced prisoner in the maximum security unit at the prison. Mr Burton has a significant and serious criminal history. He is also disabled to the extent he has a prosthetic leg.

1      R v Poulgrain [2019] NZHC 2635.

[6]                 Mr Lisiate is a senior member of the Cripps gang. Mr Tapine is associated with the Cripps gang. You yourself have been involved in the Killer Beez (although counsel submits you intend to disassociate with that gang).

[7]                 At around 9.30 am on 11 May 2018 Mr Burton was walking down the landing from his cell towards a cross-passage grill. As he approached where Mr Tapine was standing Mr Tapine suddenly and without warning punched Mr Burton with a right hook to the face.

[8]                 The incident was captured on CCTV. The CCTV the Court viewed as part of the disputed fact hearing shows your involvement to be at least as significant as recorded in the summary of facts, if not in fact more extensive. It appears from that CCTV coverage that as Mr Burton was walking down the corridor you deliberately positioned yourself beside him in such a way as to ensure Mr Burton walked closer to Mr Tapine to make it easier for Mr Tapine to launch the assault on him.

[9]                 The CCTV then records that, while Mr Tapine threw the first punch at Mr Burton, you immediately joined in with a blow to Mr Burton’s head while he was still standing. At that time Mr Tapine directed further blows at Mr Burton which caused him to fall backwards onto the ground.

[10]              CCTV footage then confirms you continued to attack Mr Burton while he was on the ground. You did so in conjunction with Mr Lisiate, who by this stage had joined the attack. The CCTV coverage shows you with your back to the camera delivering at least seven or eight further blows to Mr Burton’s head and upper body. The blows were of a stabbing motion rather than a punch. They were to the left-hand side of Mr Burton’s head and upper body while he was initially lying on his right-hand side. Later, while Mr Lisiate’s assault continued, you moved away. Mr Burton rolled over and Mr Lisiate continued the attack to Mr Burton’s right-hand side on his own.

[11]              There were three shanks involved in the attack. Two of them were used by Mr Lisiate. The third one was used by you. After viewing the CCTV footage as part of the disputed fact hearing, the Court concluded you had used that third shank to stab Mr Burton. You admitted that at least for some of the blows you had the shank in your

hand. Your actions shown by the CCTV footage are consistent with stabs rather than punches. Your attack was to the left-hand side of Mr Burton’s head and upper body. The injuries Mr Burton received included smaller stab wounds to his left arm and upper left bicep and a large wound to the left side above his collarbone. There were also minor injuries to his head and face. Those stab injuries are all consistent with the area that you were seen to have attacked with the shank.

[12]              The most serious injury Mr Burton sustained was an injury to his right eye. As I have said I accept that you were not responsible for that injury, Mr Lisiate was. However, you were a full participant in the attack on Mr Burton, at least until you removed yourself from it, and you used a shank to stab him to his body and head during that attack.

[13]              In sentencing you the Court is required to take account of the purposes and principles of sentencing. For serious violence of this kind, the need to hold you accountable, to denounce your conduct, and to deter you and others from engaging in such assaults, especially in the prison environment, which cause potential for risk of harm to others and also to prison officers who have to deal with these assaults, are all relevant considerations. The Court must also impose the least restrictive outcome appropriate in the circumstances but there is no alternative to a significant term of imprisonment for offending in these circumstances.

[14]              In fixing the starting point for your sentence Mr Poulgrain I have had regard to the cases of R v Taueki and Nuku v R.2 There are a number of aggravating features of particular relevance to fixing the starting point for you. The first is the extent of the violence. This was a sustained attack on Mr Burton by you and particularly Mr Lisiate. You both used weapons, namely the shanks that you had prepared. While Mr Burton was defenceless on the ground the two of you attacked him with those weapons. You personally stabbed him at least seven to eight times.

[15]              The attack was planned. The CCTV footage clearly shows you and the others together shortly before the attack. You had made the shanks in advance of the attack and, as I have noted, you positioned yourself in a way to ensure Mr Burton was

2      R v Taueki [2005] 3 NZLR 372 (CA); and Nuku v R [2012] NZCA 584.

vulnerable to Mr Tapine’s initial punch, which commenced the attack. The attack was planned and co-ordinated.

[16]              The next consideration is the seriousness of the injury inflicted on the victim. Mr Burton was, as I have said, struck and stabbed a number of times. Ultimately he was taken to Auckland Hospital, initially in a life threatening condition. A permanent result of the attack is that Mr Burton has severely diminished vision from his right eye. While I accept you did not cause that injury you were nevertheless a party to the sustained attack on him and caused serious injuries to him yourself. A number of the stab wounds to his body, head and face were inflicted by you.

[17]              The final features of relevance to your culpability is that you were one of three attackers. Next, the attack came out of the blue. It was unprovoked. Mr Burton was clearly not expecting it. He was vulnerable to the extent he had a prosthetic leg and the worst injuries inflicted on him were inflicted on him while he was disabled and lying on the floor and unable to get up.

[18]There are no mitigating factors in relation to the offending.

[19]              The Crown submits your offending falls in relation to band 3 of Taueki which, having regard to the Court’s comments in Nuku, supports a starting point in your case of between five and five and a half years’ imprisonment.3 I note that in the more recent case of Nuku Downs J imposed preventive detention but otherwise would have taken an overall starting point of six years’ imprisonment for two attacks on other prisoners involving the use of a shank.4 The victims in those cases did not appear to have suffered any permanent injury.

[20]              Ms Pecotic submitted that this was not serious violence. I disagree for the reasons given above. She also submitted Mr Burton was not particularly vulnerable given his past and record. But as I have noted, he was clearly not expecting this unprovoked attack and was readily made vulnerable during the course of the attack. Next, Ms Pecotic referred to the cases of Katoa v NZ Police and Sheppard v R.5 I have

3      R v Taueki; and Nuku v R, above n 2.

4      R v Nuku [2018] NZHC 2510.

5      Katoa v NZ Police, [2015] NZHC 1562; and Sheppard v R [2013] NZCA 639.

not found them to have been of particular assistance as the offending in those cases occurred in quite different circumstances. Nevertheless Ms Pecotic submitted that a starting point in the region of three and half to four years is appropriate in your case.

[21]              I regard the circumstances of the offending as particularly serious, taking account of the factors I have referred to and noting the attack took place in a prison environment. I take a starting point of five years, six months.

[22]              The Crown has suggested an uplift to that offending to take account of your previous convictions and the fact the offending occurred whilst you were subject to a sentence and in prison.

[23]              While you do have previous convictions for assault the sentences imposed do not suggest anything like the level of violence involved in this assault. Further, I consider the starting point I have taken sufficiently takes account of the fact the offending occurred in a prison environment while serving a sentence. I decline to apply any uplift to the start point.

[24]That leaves the issue of your personal circumstances.

[25]              The Probation Service report confirms that you were born and raised in Kaitaia. You identify as of Ngapuhi descent. You declined to provide any further detailed information to the Probation Officer but the records indicate you had a relatively settled and happy childhood until the age of 10. You were then relocated to another part of Northland and at that time the records disclose you saying you felt uprooted. Child Youth and Family Services became involved and you were uplifted and placed with your grandmother for supervision. You then ran away and then eventually was placed in Korowai, a Youth Justice facility. You were fond of your younger siblings but appeared emotionally disconnected when discussing your family. A number of attempts were made to contact your mother for further information but that was to no avail.

[26]              You left school at 14 with no qualifications. You have some experience of work in dairy farming and have expressed an interest in forestry.

[27]              The Probation Officer notes that you described the situation of the offending as regrettable and your offending as a sudden thing. There appeared to be a lack of victim empathy and you displayed a failure to provide insight into your behaviour, only expressing superficial remorse.

[28]              Ms Pecotic has obtained a report under s 27. That report in large part confirms the information before the Court from the pre-sentence report. It confirms you identify as Maori but could not recite your pepeha. You appeared extremely disconnected from your culture and you have not participated in cultural activities nor immersed yourself in te reo Maori. The report notes you are institutionalised and have been detained from the age of 14 when you first entered the State system through the boys’ home which has been referred to by the pre-sentence report writer. It notes you are no exception to the unfortunate progression from youth in care and protection with issues from youth courts to prison.

[29]              The report notes you are strongly connected to your whanau and your goal is to maintain those connections, again a matter referred to by the Probation Officer. You say you realise the need to be a positive role model for your baby brother and sister, whom you are closest to. Mr Poulgrain you are no role model to them at the moment. If you really maintain that wish you are going to have to change.

[30]              The report also notes that you acknowledge your cultural disconnectedness and says you are disinterested in learning more about te reo Maori and your whakapapa at this point in time. To that extent the report, in terms of the considerations referred to under s 27(1)(a) and (b) really adds little to the pre-sentence report the Court has. The considerations in s 27(1)(c) to (e) are largely irrelevant given the circumstances of this offending and the inevitable sentence of imprisonment which must be imposed.

[31]              The one thing for you Mr Poulgrain for the future is whether you are going to have the support when you are ultimately released from prison to address the issues which you appear to be able to acknowledge that you face. You are going to need support, so your family have to step up and provide that support. It has to be said from your record to date it does not appear that that support has been available to you.

[32]              Ms Pecotic has also helpfully referred the Court to a psychological report that was prepared for the Youth Court when you were before that Court in 2013. At that time you were 15 years old. The report provides a helpful and detailed background to your family circumstances and confirms a diagnosis of ADHD. At the time the report writer recommended a placement with specialist caregivers to provide a calm and structured environment. If that was put in place, unfortunately it was not successful. Since that time you have committed a further 11 offences of interfering with motor vehicles, four of assault, two of resisting police and four burglaries. The last 10 offences have been dealt with in the District Court.

[33]              Regrettably it has to be said there is little positive in either the cultural report or the pre-sentence report in relation to your background circumstances. Given your background, the apparent lack of social skills and support, it has to be acknowledged that your likelihood of reoffending is high. You pose a risk of harm to others.

[34]              The only hope for you in the future Mr Poulgrain is if you are able to put into practice what you have thoughtfully expressed in the note that counsel handed the Court. In that detailed note you have recorded and identified a number of issues and strategies to deal with those issues. That shows that you have the ability to understand your situation. As I have said you are going to need the support of others and particularly the support of your whanau when you are ultimately released if you are going to address those issues. You are not going to get the support you need by associating yourself with gangs.

[35]              The one positive for you, apart from the fact that you have, as I say identified issues that you need to face, is that you do seem to have in the past impressed people you have worked with. I have regard to the references and the support letters from Mr Donovan and from Mr Lawson, who formerly employed you. Those matters taken together with your age, you are still a relatively young man, do provide some hope that in the future you can turn your life around.

[36]              I reduce the starting point of your sentence by nine months to take account of your relatively young age, your underlying medical condition, and your disadvantaged background that has been referred to. From that adjusted starting point of four years,

nine months, I apply a further reduction of just over 20 per cent for your guilty plea. The Crown case against you was a strong one, based as it was on the CCTV footage, which clearly identified you and your involvement in the attack. Nevertheless your guilty plea is a tangible acknowledgement of responsibility and may be a starting point towards a change in behaviour. As I have noted, there can be no further reduction for remorse. I am not satisfied at all that you are genuinely remorseful.

[37]              Mr Poulgrain please stand. On the charge of wounding with intent to cause grievous bodily harm you are sentenced to imprisonment for three years, nine months. Stand down.

Venning J