SHANE DAVE POMANA AND THE KING - [2024] NZCA 511

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA282/2024
[2024] NZCA 511

BETWEEN	SHANE DAVE POMANA Appellant
AND	THE KING Respondent

Hearing:	2 September 2024
Court:	Thomas, Whata and Grice JJ
Counsel:	J H C Waugh for Appellant T R Simpson for Respondent
Judgment:	11 October 2024 at 9.30 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Grice J)

Introduction

Shane Pomana was convicted following a jury trial on charges of assault with intent to rob,[1] attempted aggravated robbery,[2] and aggravated robbery.[3] He was acquitted on a further charge of aggravated robbery, as well as charges of wounding with intent to injure, dishonestly using a document, and unlawful possession of a pistol.
[1]Crimes Act 1961, ss 66(2) and 236(1)(c) — maximum penalty 14 years’ imprisonment.
[2]Sections 235(b) and 311(1) — maximum penalty seven years’ imprisonment.
[3]Sections 66(2) and 235(c) — maximum penalty 14 years’ imprisonment.
On 19 April 2024, Mr Pomana was sentenced to six years’ imprisonment on the charge of aggravated robbery, with concurrent sentences of three years’ imprisonment and 18 months’ imprisonment imposed for the charges of attempted aggravated robbery and assault with intent to rob respectively.[4] He now appeals that sentence on the basis that it is manifestly excessive.

Background

[4]R v Pomana [2024] NZDC 8867 [sentencing notes].

Mr Pomana’s offending took place over the course of an evening at three different petrol stations in Whanganui and Feilding.
On the evening of 17 April 2022, Mr Pomana and at least two others were driving around Whanganui in a ute that had been stolen earlier that evening. The front number plate of the ute had been removed, and another number plate had been put on the dash.

Challenge service station — assault with intent to rob

At around 8.05 pm, Mr Pomana and his associates pulled into the forecourt of the Challenge service station in Castlecliff. Mr Pomana got out of the ute, wearing a baseball hat and black gloves, with his hood pulled up and holding a black shopping bag. He approached the service station attendant, who was on the forecourt. Mr Pomana grabbed the attendant, who broke free and ran away. He then chased the attendant for a short period of time, before giving up and returning to the ute. Mr Pomana’s intent was clearly to rob.[5]

Z service station — attempted aggravated robbery

[5]At [4].

Mr Pomana and his co-offenders then made their way to the Z service station on Dublin Street, arriving at around 8.30 pm. An attendant was working there alone. Mr Pomana got out of the ute, with his hood up and hat on, still wearing black gloves and holding a black bag. He also had a blue mask covering his face.
Mr Pomana ran into the store and made his way to the counter. The attendant had seen him approaching and had locked herself in the back office. Mr Pomana jumped over the…

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.

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Details

Case: [2024] NZCA 511
Decision Date: 11 October 2024 at 9.30 am

CaseChat Overview and Summary

Shane Dave Pomana and the King concerned the sentencing of Mr Pomana for aggravated robbery. The primary legal issue was whether the trial judge could rely on a "strong inference" that the firearm involved in the offence was loaded, as an aggravating factor, without giving Mr Pomana the opportunity to dispute this fact. This issue arose from the provisions of Section 24 of the Sentencing Act, which mandates that a court must accept as proved all facts essential to a plea of guilty or a finding of guilt. The case hinged on whether the requirement to accept these facts as proved could be extended to inferences drawn from those facts without further evidence or opportunity for the defendant to contest them. The Court found that the trial judge was not entitled to draw such an inference without allowing Mr Pomana to dispute it, as this would contravene the principles established in Arahanga v R, which emphasised the importance of allowing the parties to contest facts relevant to sentencing even if not contested at trial.

The Court's reasoning was grounded in the principle that a defendant should not be precluded from presenting contrary evidence relevant to sentencing merely because it was not led at trial. The Court highlighted that the presence of a firearm was an element of the offence and thus accepted as proved by the jury’s verdict. However, the inference that the firearm was loaded was not an essential fact to the offence and therefore required further substantiation. The Court underscored the necessity for a disputed facts hearing, where both parties could present evidence and cross-examine witnesses, to ensure a fair and comprehensive assessment of all relevant facts before they are accepted as proved and relied upon for sentencing purposes. This approach was deemed essential to uphold the principles of natural justice and to ensure that sentencing decisions are made on a fully informed basis.

Ultimately, the Court found that the trial judge erred in relying on the strong inference that the firearm was loaded without giving Mr Pomana the opportunity to dispute this fact. This error potentially affected the fairness of the sentencing process. The Court ordered a re-sentencing hearing to allow Mr Pomana to challenge the inference that the firearm was loaded, thereby ensuring that the sentencing process complied with the requirements of Section 24 of the Sentencing Act and the principles of natural justice.

Orders

Orders of the court

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Background

Background to the litigation

Section 24 of the Sentencing Act deals with the proof of facts at sentencing, and relevantly provides:24Proof of facts(1)In determining a sentence or other disposition of the case, a court—(a)may accept as proved any fact that was disclosed by evidence at the trial and any facts agreed on by the prosecutor and the offender; and(b)must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.(2)If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,—(a)the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:(b)if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the trial:(c)the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact … …(e)either party may cross-examine any witness called by the other party.… The use of a firearm was an element of the offence of aggravated robbery, upon which Mr Pomana was convicted.[19] Therefore, in light of the jury’s guilty verdict, the Judge was required by s 24(1)(b) to accept that a firearm was involved in the offending. The issue is whether the Judge was entitled to draw a “strong inference” that the firearm was loaded, and then rely on that inference as an aggravating factor, without giving the appellant the opportunity to dispute that fact at sentencing.[20][19]Crimes Act, s 235(c). [20]Sentencing notes, above n 4, at [19(d)]. Mr Pomana relies on Arahanga v R.[21] In that case, the appellant had been convicted of burglary, among other charges, following a jury trial. The sentencing Judge concluded that the appellant had been armed with a knife during the burglary. The only evidence at trial as to the presence of a knife was from an officer, who said he had sighted a black handle in the defendant’s waistband which he thought looked like a carving knife (although he could not be sure),[22] and the implication of the fact that the appellant’s co-offender had threatened to stab the officer.[23] The presence of the knife was not at issue at trial, nor was it put forward by the Crown in their submissions at sentencing.[24] On appeal, this Court observed that if evidence is not led at trial “it cannot be the case that an accused, despite having no obligation to call evidence, is precluded from putting forward contrary evidence that is relevant to sentencing”.[25] It held that in the circumstances of the case, the Judge could not assume the presence of the knife had been established without giving the parties an opportunity to hold a disputed facts hearing.[21]Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.[22]At [69].[23]At [70].[24]At [72] and [74].[25]At [76].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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