The Queen v Pou - [2008] NZCA 456

IN THE COURT OF APPEAL OF NEW ZEALAND
CA265/2008
[2008] NZCA 456
THE QUEEN
v
PERI POU
Hearing:14 October 2008

Court:Arnold, Williams and Wild JJ
Counsel:Appellant in person

M T Davies for Crown

Judgment:3 November 2008 at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.
REASONS OF THE COURT
(Given by Arnold J)

[1]       The appellant entered a plea of guilty to one count of injuring with intent to injure (s 189(2) of the Crimes Act 1961). Judge McDonald sentenced him to a term of imprisonment of two years, three months: DC WHA CRI-2007-088-004858 16 April 2008. The appellant appeals against that sentence.
Factual background
[2]       While the appellant was being held in a remand cell at the Whangarei District Court some prisoners arrived from Ngawha Prison. One of these was the victim. As soon as he had been placed in the cell, the appellant attacked the victim, punching him three times in the head. He fell to the ground, unconscious. During this attack, the appellant shouted several times that the victim was a “nark”. The victim suffered a fractured nose and bruising to the side of his face as a result of the attack.
Sentencing
[3]       Having noted the principles of sentencing Judge McDonald said:
[6]       The aggravating features so far as the offending is concerned are these. There was actual violence. But that is part and parcel of the charge that you faced. That you attacked him because you thought he was a nark generally, not a nark against you. That you were attempting to enforce some sort of criminal code that people who know something about criminal behaviour should not say anything to the authorities about that. Any law abiding, right thinking member of society would know that it is a citizen’s duty to report and assist the police in relation to what they know about criminal offending. Attacks on people who do that, that is, help out the police or the authorities, in my view, are to be treated seriously. It is a serious aggravating factor. There was little premeditation. You obviously thought this man was a nark, I have no evidence before me he was. From the moment he got into the cell, you dealt to him.
[7]       In my view, taking into account those factors of the offending, a starting point for the offending would be two years. Added to that are the aggravating factors personal to you. You were on remand at the time for nine burglaries and five car conversions. There is a list of your previous convictions some 66. All manner of crimes including violence. In 1999 male assaults female and 96 common assault. You have served 19 prison terms. On my calculation that amounts to five and a half years or so. This appalling at your age of 31, Mr Pou. You steal, you break into people’s homes, you supply methamphetamine, you sell cannabis and cannabis oil and you drive dangerously and drunk. All in all you have…

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 The Queen v Pou

Details

AGLC: The Queen v Pou [2008] NZCA 456
Case: [2008] NZCA 456
Decision Date: 3 November 2008

CaseChat Overview and Summary

In the appeal of Pou against The Queen, the appellant, Peri Pou, appealed against a two-year, three-month imprisonment sentence imposed by Judge McDonald. The appellant, who was on remand for nine burglaries and five car conversions, had assaulted a fellow prisoner, punching him three times in the head, causing him to fall unconscious and suffer a fractured nose and bruising. The appellant had entered a plea of guilty to one count of injuring with intent to injure. The appellant argued that the uplift of one year to the two-year starting point was unfair because it was based on his previous criminal history and the fact that the assault was committed while he was on remand on a number of other charges. The appellant contended that if his prior history and unresolved charges were taken into account in this way, he would effectively suffer double punishment.
The Court considered the appellant's previous criminal history and the unresolved charges. The Court held that the appellant's previous criminal history, which included many offences and several instances of violence, was relevant to specific deterrence and the protection of the public. The Court also held that the fact that the offence was committed while the appellant was on bail or still subject to a sentence indicated a disregard or even a contempt for the criminal process. The Court concluded that the appellant was entitled to a discount for his guilty plea, but that the sentence was within the range available to the Judge and that there was no error of principle by the sentencing Judge. Therefore, the appeal was dismissed.

Orders