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…

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 Poulgrain

Details

AGLC: R v Poulgrain [2019] NZHC 3119
Case: [2019] NZHC 3119
Decision Date: 28 November 2019

CaseChat Overview and Summary

Te Ariki Poulgrain, the defendant, faced the High Court of New Zealand in Auckland for a charge of wounding with intent to injure, with the maximum penalty being seven years' imprisonment. The court heard the case on 28 November 2019, with D M A Wiseman representing the Crown and M N Pecotic for the defendant. Poulgrain had pleaded guilty to the charge, which arose from an attack on a fellow prisoner, Mr Burton, in May 2018. The attack was premeditated and involved Poulgrain, Siuaki Lisiate, and Tama Tapine, all of whom were serving sentences in the maximum security wing at Auckland Prison. The case hinged on whether Poulgrain had used a shank during the attack, a point Poulgrain disputed. The court reviewed CCTV footage and concluded that Poulgrain had indeed used a shank to stab Mr Burton multiple times.

The court addressed several legal issues, primarily focusing on the appropriate sentence for Poulgrain's involvement in the violent attack. The court considered the purposes and principles of sentencing, emphasizing the need for accountability, denunciation, and deterrence, particularly in the prison environment. The court also examined the aggravating factors, including the extent of violence, the use of weapons, the planning and coordination of the attack, the seriousness of the injuries inflicted, and the vulnerability of the victim. The court found no mitigating factors in this case.

In determining the sentence, the court set a starting point of five years and six months, reflecting the seriousness of the offending. The court declined to increase this starting point despite Poulgrain's previous convictions and the fact that the offence occurred while he was in prison. The court then considered Poulgrain's personal circumstances, including his background, cultural disconnection, and lack of remorse. Despite these factors, the court reduced the starting point by nine months, taking into account Poulgrain's young age, medical condition, and disadvantaged background. The court further reduced the sentence by 20 per cent for Poulgrain's guilty plea, resulting in a final sentence of three years and nine months' imprisonment.

Orders