R v Poulgrain

[2019] NZHC 2635

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-044-001823

[2019] NZHC 2635

THE QUEEN

v

TE ARIKI POULGRAIN

Hearing:	(On the papers)
Appearances:	D M A Wiseman for Crown M N Pecotic for Defendant
Judgment:	16 October 2019

JUDGMENT OF VENNING J

Disputed Fact Hearing

This judgment was delivered by me on 16 October 2019 at 11.00 am

Registrar/Deputy Registrar

Date……………

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

R v POULGRAIN [2019] NZHC 2635 [16 October 2019]

[1]        On 27 September 2019 Mr Poulgrain pleaded guilty to a charge of wounding with intent to injure.

[2]        The summary of facts Mr Poulgrain agreed when entering the plea records the following.

[3]        Mr Poulgrain, together with his co-defendants Siuaki Lisiate and Tama Tapine, are sentenced prisoners in the maximum security wing at Auckland Prison at Paremoremo.

[4]        The victim in the matter, Graeme Burton, is also a sentenced prisoner in the maximum security at Auckland Prison. He has a significant criminal history. Mr Burton is disabled. He has a prosthetic leg.

[5]        Mr Lisiate is a senior member of the Cripps gang. Mr Tapine is associated with the Cripps gang. Mr Poulgrain, Mr Lisiate, and Mr Tapine were all housed on the same landing of D Block at Auckland Prison as Mr Burton.

[6]        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 and Mr Poulgrain were standing the defendant Tapine suddenly punched Mr Burton with a right hook to the face. Mr Burton stumbled on his back and fell to the floor. Mr Lisiate and Mr Poulgrain then went towards the complainant punching him.

[7]        After his initial assault Mr Tapine walked to the cross-passage gate and took no further part in the assault.

[8]        Mr Lisiate took out concealed shanks and began stabbing Mr Burton to the head and face. He also kicked him numerous times with his feet. During the course of the assault Mr Lisiate stabbed at Mr Burton over 40 times.

[9]        The summary records that, during the attack, Mr Poulgrain struck the complainant 10 times. For at least some of the strikes Mr Poulgrain had a shank in his hand. He then moved away as Mr Lisiate continued to stab Mr Burton.

[10]      During the assault Mr Burton was prone on the ground curled into a foetal position attempting to use his hands to shield his face. Corrections Officers became aware of the assault and formed up awaiting backup before entering the landing. Mr Lisiate continued to stab Mr Burton despite the presence of the guards at the grill. When the guards entered in significant numbers Mr Lisiate ceased his assault.

[11]      As a result of the assault on him Mr Burton suffered numerous wounds to his right arm and hand, smaller stab wounds to his left arm and upper left bicep, a large wound to the left-hand side of his collar bone, a large stab wound to his right eye resulting in a ruptured eye globe and a number of smaller and more superficial stab wounds to his head and face.

[12]      The stab wounds to Mr Burton’s right eye, arm and torso required operative repair. He now has severely diminished vision from his right eye.

[13]      Although pleading guilty Mr Poulgrain sought a disputed fact hearing under  s 24 of the Sentencing Act 2002. The fact requiring determination is whether as asserted by the Crown, Mr Poulgrain stabbed Mr Burton with the shank or, as Mr Poulgrain argues, his involvement was limited to striking Mr Burton with his hand (whilst the shank was in his hand).

[14]      The determination of the fact is relevant to the sentence to be imposed on Mr Poulgrain as it is relevant to the extent of his involvement in the assault. If it is established that Mr Poulgrain stabbed Mr Burton it would be an aggravating fact justifying a greater penalty.

[15]      Prior to the scheduled hearing counsel filed a joint memorandum. They agreed the Court could determine the disputed fact issue after watching the CCTV footage of the assault without the need for a hearing.

[16]      The Crown accepts that there is no direct evidence attributing specific wounds suffered by Mr Burton to the shanks held by Mr Lisiate and Mr Poulgrain.

[17]      I have received the CCTV footage of the incident. The CCTV footage shows Mr Poulgrain’s involvement to be at least as significant as recorded in the summary of facts, if not more extensive. It appears that, as Mr Burton was walking down the corridor Mr Poulgrain deliberately positioned himself beside Mr Burton 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. The CCTV cameras then record that, while Mr Tapine launched the first punch at Mr Burton, Mr Poulgrain immediately joined in with a blow to Mr Burton’s head while he was still standing. At the same time Mr Tapine directed further blows at Mr Burton, taking him to the ground.

[18]      The CCTV footage confirms that Mr Poulgrain then continued to attack Mr Burton while he was on the ground. Mr Poulgrain attacked him in conjunction with Mr Lisiate.

[19]      The best CCTV coverage of the incident shows Mr Poulgrain with his back to the camera but the footage shows at least seven or eight blows by Mr Poulgrain to Mr Burton’s head and upper body. The blows appear to be of a stabbing motion rather than a punch. The blows by Mr Poulgrain were to the left-hand side of Mr Burton’s head and upper body while he was initially lying on his right-hand side. During the assault Mr Poulgrain moved away, Mr Burton was rolled over and Mr Lisiate then continued the attack to Mr Burton’s right-hand side on his own.

[20]      There were three shanks involved in the attack. Two of the shanks were used by Mr Lisiate. The remaining shank was used by Mr Poulgrain.

[21]      The evidence satisfies me beyond reasonable doubt that in the course of the assault on Mr Burton, Mr Poulgrain used the shank he had to stab Mr Burton. While the incident is intense, and it is difficult to make out the use of the shanks at the time of the assaults, I draw the inference that Mr Poulgrain used a shank to attack Mr Burton. I do so for the following reasons:

(a)Mr Poulgrain has admitted that for some at least of the blows he inflicted, he had a shank in his hand;

(b)there would seem little point in having the shank in his hand if he did not intend to use it. The attack was planned. Both Mr Lisiate and Mr Poulgrain knew shanks were to be used;

(c)the CCTV footage of Mr Poulgrain’s actions is consistent with a stabbing rather than a punching motion;

(d)Mr Poulgrain attacked the left-hand side of Mr Burton’s head and upper torso. The injuries recorded included smaller stab wounds to Mr Burton’s left arm and upper left bicep and a large wound to the left side above his collarbone. Those stab injuries are all consistent with the area Mr Poulgrain attacked.

[22]      I accept Mr Poulgrain was not responsible for the injury to Mr Burton’s right eye. Mr Lisiate is responsible for that.

[23]      I find beyond reasonable doubt that Mr Poulgrain was a full participant in the attack on Mr Burton and used a shank to stab Mr Burton to his left-hand side during the attack. He will be sentenced on that basis. Mr Poulgrain is to be sentenced on 28 November 2019 at 9.00 am following the sentence of Mr Lisiate.

Venning J