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…

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 2635
Case: [2019] NZHC 2635
Decision Date: 16 October 2019

CaseChat Overview and Summary

The case of R v Poulgrain involved the defendant, Te Ariki Poulgrain, who pleaded guilty to the charge of wounding with intent to injure. The incident occurred in Auckland Prison, where Poulgrain, along with his co-defendants Siuaki Lisiate and Tama Tapine, assaulted Graeme Burton, another prisoner. The assault resulted in Burton suffering severe injuries, including a ruptured eye globe and multiple stab wounds. Poulgrain sought a disputed fact hearing to contest whether he had stabbed Burton with a shank or merely struck him with his hand while holding a shank. The outcome of this hearing was crucial for determining the severity of Poulgrain's sentence.

The primary legal issue before the court was whether Poulgrain had used a shank to stab Burton or if he merely struck Burton with his hand while holding a shank. This distinction was significant as it would affect the sentencing, with the use of a shank being an aggravating factor. Both parties agreed that the court could resolve this issue by reviewing the available CCTV footage of the incident.

The court examined the CCTV footage and found that Poulgrain's involvement in the assault was more extensive than initially recorded. The footage showed Poulgrain positioning himself to facilitate the attack, striking Burton while he was still standing, and continuing to attack him while he was on the ground. The blows appeared to be stabbing motions rather than punches. The injuries sustained by Burton aligned with the areas Poulgrain had attacked, further supporting the inference that he used a shank.

After considering the evidence, the court concluded that Poulgrain had indeed used a shank to stab Burton. The reasoning included Poulgrain's admission of having a shank in his hand during the assault, the planned nature of the attack, the consistency of the CCTV footage with stabbing rather than punching, and the specific injuries inflicted on Burton. The court found that Poulgrain would be sentenced based on the determination that he had used a shank in the assault.

The final orders of the court were that Poulgrain would be sentenced on 28 November 2019, following the sentencing of Lisiate. Poulgrain's sentencing would reflect his full participation in the attack and the use of a shank to stab Burton.

Orders