Pauu v The Queen

[2011] NZCA 313

IN THE COURT OF APPEAL OF NEW ZEALAND

CA85/2011
[2011] NZCA 313

BETWEEN  RANGI ROY PAUU
Appellant

AND  THE QUEEN
Respondent

Court:             Randerson, Stevens and Wild JJ

Counsel:         K Maxwell for Appellant
S B Edwards for Respondent

Judgment:      15 July 2011 at 11.00 am

On the papers

JUDGMENT OF THE COURT

A        The application to extend the time for appealing is granted.

BThe appeal is allowed in part to the extent that the minimum period of imprisonment of five years imposed in the District Court is quashed and replaced with a minimum period of imprisonment of three years and nine months.

CThe appeal against sentence is in all other respects dismissed.

DA copy of this judgment is to be sent by the Registrar to the co-offender Lokenitama Filipo and his counsel.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

1. During the night of 17 March 2010, the appellant, Mr Pauu, and two co‑offenders, Messrs Pomare and Filipo, broke into a farmhouse occupied by an elderly woman and her daughter, aged in their 70s and 40s respectively.  The men were heavily disguised and armed with knives.  They tied the women up, ransacked the house and stole at least $23,000 worth of property, including irreplaceable jewellery of considerable sentimental value.

2. The appellant and his co-offenders all pleaded guilty in the District Court to a charge of aggravated robbery.  On 9 August 2010, Judge Winter sentenced the appellant and his two co-offenders to a term of seven and a half years’ imprisonment, after allowing each a discount of one third for their early guilty pleas from a common starting point of 10 years’ imprisonment uplifted for aggravating factors by one and a half years.[1]  Each offender was ordered to serve a minimum period of imprisonment (MPI) of five years’ imprisonment (two-thirds of the sentence).

   [1]      R v Pauu DC Pukekohe CRI-2010-057-654, 9 August 2010.

3. One of the co-offenders, Mr Pomare, filed an appeal against sentence.  In a judgment delivered on 21 March 2011,[2] this Court allowed the appeal in respect of the MPI, which was quashed and replaced with an MPI of three years and nine months’ imprisonment (50 per cent of the sentence).  In all other respects the appeal was dismissed.

   [2]      Pomare v R [2011] NZCA 83.

4. The appellant appeals against his sentence, contending broadly that the sentence was manifestly excessive.  In particular he alleges that the sentencing Judge erred by:

   (a)adopting a starting point that was too high;

   (b)applying a discount for the early guilty plea that was too low;

   (c)imposing a minimum period of imprisonment.

5. The appeal was filed well out of time.  There is no opposition from the Crown to an extension of time.  The time for filing the appeal is extended accordingly.

Sentencing appeal of Mr Pomare

1. This Court was satisfied that the Judge was correct to sentence all three offenders on the basis that their culpability was the same.[3]  It also rejected the argument that the starting point of ten years was too high, as the offending was within the broad category of a night-time home invasion of the type referred to in R v Mako[4].  All other grounds of appeal regarding the sentence itself were rejected.

   [3] At [27].

   [4]      R v Mako [2000] 2 NZLR 170 (CA) at [58].

2. With respect to the MPI, this Court was satisfied that it was within the discretion of the Judge to impose a minimum term.  However, this Court found that in determining that the MPI should be the maximum allowable of two thirds, the Judge had not given adequate consideration to the mitigating factors found to exist, namely, the early guilty plea, remorse and the need for offenders to be reintegrated and rehabilitated back into society.[5]  Accordingly, this Court concluded that the appropriate MPI should be 50 per cent of the sentence imposed, three years and nine months.

Position of the parties

[5]      At [37]–[39].

1. Counsel for the respondent accepts that the reasoning of this Court in Mr Pomare’s appeal is equally applicable to the appellant.  Counsel also accepts that the appellant’s appeal should similarly be allowed with respect to the MPI imposed.

2. On this basis, counsel for the appellant has indicated that the appellant does not wish to pursue his appeal against sentence in any other respect.[6]

   [6]      In a joint memorandum dated 4 July 2011.

3. There is no opposition by either counsel to the appeal being dealt with on the papers.

Our evaluation

1. We agree that there is no reason to distinguish the case of the appellant from that of Mr Pomare.  In respect of the imposition of an MPI, the same considerations apply.  We respectfully adopt the same reasoning as set out in the decision of this Court in Pomare v R.[7]

   [7]      Pomare v R [2011] NZCA 83 at [36]–[42].

2. We therefore agree that this is a case where the appeal should be allowed to the extent that the MPI of five years imposed in the District Court is quashed and replaced with an MPI of three years and nine months.

3. In all other respects, the appeal against sentence is dismissed.

4. We agree with the suggestion of counsel that a copy of the judgment in this appeal (together with the judgment in Pomare v R) should be sent by the Registrar to Mr Filipo and the counsel who appeared for him at sentencing, Ms Mason.

Solicitors:
Crown Law Office, Wellington for Respondent