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 contributed nothing to society except misery to the victims of which there are numerous ones.  It has been ongoing and relentless.  The only time when you have not been committing criminal offences is when you have been in jail, and here you are in jail now committing this offence.  So even incarceration does not stop you.

[4]       The Judge accepted that the appellant should be given a full discount for his guilty plea (at [8]).  He noted that the pre-sentence report said little positive about the appellant, identifying him as having a propensity for violence and being at a high risk of re-offending (at [10]).  The Judge then said:

[13]     I consider that a starting point for the offending, as I have said, should be two years.  That is uplifted by the aggravating factors personal to you to three.  I give you as much credit as I can for your plea of guilty  and I reduce that down to two years, three months and that is the ultimate sentence that I impose upon you.

Basis for appeal

[5]       The appellant argued that the uplift of one year to the two year starting point was unfair.  This was because it was based on the appellant’s previous criminal history and the fact that the assault was committed while the appellant was on remand on a number of other charges.  The appellant said that if his prior history and the unresolved charges were taken into account in this way, he would effectively suffer double punishment.

Discussion

[6]       We will deal first with previous criminal history, then with the unresolved charges.  We will conclude by making an overall assessment.

Previous criminal history

[7]       Section 9 of the Sentencing Act 2002 deals with aggravating and mitigating factors.  Section 9(1)(j) provides that a sentencing judge must take into account “the number, seriousness, date, relevance, and nature of any previous convictions of the offender”.  The rationale for this was explained by this Court in R v Casey [1931] NZLR 594 at 597:

The Court should always be careful to see that a sentence of a prisoner who has been previously convicted is not increased merely because of those previous convictions.  If a sentence were increased merely on that ground it would result in the prisoner being, in effect, sentenced again for an offence which he has already expiated.  We agree that the sentence passed ought to bear some relation to the intrinsic nature of the offence and gravity of the crime.  But it by no means follows that the previous convictions must be ignored.  It is necessary to take them into consideration, because the character of the offender frequently affects the question of the nature and gravity of the crime, and a prisoner’s previous convictions are involved in the question of his character.  Further, the previous convictions of a prisoner may indicate a prediliction to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly.

(Emphasis in original.)

See also R v Ward [1976] 1 NZLR 588 at 590 – 591 (CA). This approach is consistent with s 9(1)(j): see R v Filo [2007] NZCA 20 at [21] – [22].

[8]       Accordingly, the Judge was obliged to consider the appellant’s previous history.  That previous history contained many offences, several involving violence.  At the time of sentencing the appellant was 31 years old and his offending was, as the Judge rightly said, “ongoing and relentless” (at [7]).  He had served 19 relatively short periods of imprisonment.  In terms of the purposes of sentencing identified in s 7 of the Sentencing Act, the appellant’s previous criminal history was plainly relevant to specific deterrence (s 7(1)(f)) and to the protection of the public (s 7(1)(g)).  Further, it had some relevance (in a negative sense) to other purposes (promoting a sense of responsibility for the harm caused (s 7(1)(b)) and prospects for rehabilitation (s 7(1)(h)). 

[9]       In the result, then, the Judge was undoubtedly right to treat the appellant’s extensive criminal history as an aggravating feature justifying an increase to the starting point.  We return below to the question of the amount of the uplift.

Unresolved offending

[10]     At the time of the assault, the appellant was awaiting trial on some 14 charges.  Given that these were unresolved, the appellant said that it was unfair that they were taken into account in the present context.  The appellant also expressed a concern that, if he was convicted and sentenced on the unresolved charges, he would receive an uplift in that context to reflect his record, thus exacerbating the extent of the double counting.

[11]     Section 9(1)(c) requires that a sentencing judge take account of the fact that an offence was committed while the offender was on bail or still subject to a sentence.  The justification for this is that offending while a person is subject to the criminal process in relation to other matters often indicates a disregard or even a contempt for the criminal process: see Robertson (gen ed) Adams on Criminal Law – Sentencing (looseleaf ed) at [SA9.08].  In the present case, this conclusion is reinforced by the previous criminal history. 

[12]     However, while these two features of an offender’s personal circumstances are properly taken into account on sentencing as aggravating factors, regard must be had to the overall level of the sentence – the end sentence must be appropriate to the particular offending at issue.  Where a person is being sentenced for multiple offences, the totality principle applies: see s 85(2) of the Sentencing Act.  A similar concept applies in the present context.  Against that background, we turn to our overall assessment.

Overall assessment

[13]     In the present case, the appellant attacked the victim without warning or provocation.  He hit the victim in the head several times, causing him to lose consciousness.  As this Court said in R v Taueki [2005] 3 NZLR 372 at [31](e), the courts regard attacks to the head seriously. The appellant has offered no explanation for the attack, but the circumstances indicate that he carried it out because he thought the victim was an informer, presumably, as the Judge said, to enforce some sort of criminal code. As we have said, some uplift for the two factors identified above was justified. Further, the appellant was clearly entitled to a discount for his guilty plea.

[14]     The Judge’s starting point of two years, together with an uplift of one year, produced a sentence, before any discount, of three years.  Undoubtedly that was stern, but we consider that it was within the range available to the Judge.  Likewise, the end sentence of two years, three months was stern, but it was within the range available to the Judge given that there was no challenge to the discount applied.  The unprovoked assault on the victim in the present case is explicable only by the appellant’s commitment to the values of the criminal subculture of which he appears content to be a member, as his record reveals.  Given that there was no error of principle by the sentencing Judge, or any similar error in terms of the factors to be considered, we have no proper basis for interfering with his decision.

Decision

[15]     Accordingly, the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington