Purua-King v R [2019] NZHC 1698 (19 July 2019)

Last Updated: 26 July 2019

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000189 [2019] NZHC 1698

BETWEEN	KENI PURUA-KING Appellant
AND	THE QUEEN Respondent

Hearing:	15 July 2019
Appearances:	N Chisnall for the Appellant B Charmley for the Respondent
Judgment:	19 July 2019

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Friday, 19 July 2019 at 10:00 am

Registrar/Deputy Registrar Date:

Solicitors: Crown Law Office, Wellington Counsel: N P Chisnall, Auckland

PURUA-KING v R [2019] NZHC 1698 [19 July 2019]

[1] Following a sentence indication given by Judge T V Clark on 3 December 2018, Keni Purua-King pleaded guilty to one charge of unlawful taking of a motor vehicle and one charge of aggravated robbery.¹ On 21 March 2019, the Judge sentenced Mr Purua-King to two years and nine months’ imprisonment.

[2] The appellant’s conviction for aggravated robbery was a stage-2 offence for the purposes of the three strikes legislation and he is therefore required to serve his sentence without parole in accordance with s 86C(4)(a) of the Sentencing Act 2002. He now appeals against sentence.²

Summary of facts

[3] On Saturday 4 August 2018, at a point in time between 4.30 pm and midnight, a Subaru Impreza motor vehicle (“the stolen vehicle”) was stolen from an address in Manurewa.

[4] On Monday 6 August 2018, Mr Purua-King and Hiria Thompson-Moka were seen driving the stolen vehicle in Papakura. They picked up a third person, Angel- Breeze Paul.

[5] While driving around in the stolen vehicle, Mr Purua-King and his two associates decided to commit an aggravated robbery. They each took measures to conceal their identities. At about 2.50 pm that day, Mr Purua-King drove to the Kingseat Dairy and Takeaway shop (“the dairy”) in the stolen vehicle and parked it nearby beside a bus stop.

[6] At that time, Lovejit Kaur was working behind the counter of the dairy. She was serving a single customer, who had his young daughter with him in the store. Ms Kaur received a telephone call from a neighbour advising her that three persons were walking toward the store. Ms Kaur and the customer went and stood by the door to see what was happening.

1. Contrary to ss 235 and 226 Crimes Act 1961. Maximum penalties 14 years’ imprisonment and seven years’ imprisonment, respectively.

² Criminal Procedure Act 2011, ss 244-252.

[7] Ms Thompson-Moka, with her face concealed, approached Ms Kaur with a knife. She demanded that Ms Kaur give her cash. Ms Kaur stepped back and allowed Ms Thompson-Moka to enter the store. Ms Kaur and the customer walked into the store behind Ms Thompson-Moka and stood to the side while she went behind the counter area. She went to the till, ripped it out, and put it on the ice cream freezer. At this time, Mr Purua-King and Ms Paul entered the store. Ms Paul walked behind the counter area and, along with Ms Thompson-Moka, set about uplifting cash and cigarettes and putting them into Ms Paul’s backpack.

[8] Mr Purua-King stood at the store entrance and gave instructions to his two associates. Mr Purua-King threatened to shoot Ms Kaur and the customer, while holding what appeared to be a firearm underneath his clothing. He repeatedly said “I’ll shoot you. Sorry for ruining your day.”

[9] Once Ms Thompson-Moka and Ms Paul had finished loading the backpack with cash and cigarettes, they ran away from the store. Mr Purua-King closed the front door to the store and also ran away on foot. All three offenders left the area in the stolen vehicle, which was found half an hour later abandoned in Pukekohe.

[10] When he was spoken to, Mr Purua-King denied any knowledge of, or involvement in the robbery. He said his fingerprints were found in the stolen vehicle because he sat in the vehicle with his uncle sometime in July.

District Court sentence

[11] In a sentence indication given on 3 December 2018, Judge T V Clark noted that she had earlier provided the co-defendants, Ms Thompson-Moka and Ms Paul, with a sentence indication. The starting point adopted by her for both co-defendants was one of four years and nine months’ imprisonment. The Judge said that there was nothing, in terms of the level of culpability, that distinguished Mr Purua-King from his co-defendants. For that reason she also adopted a starting point of four years and nine months’ imprisonment in respect of Mr Purua-King.

[12] The Judge also noted that, unlike his two co-defendants, Mr Purua-King would receive a second-strike warning in the event he was to plead guilty to the charge of
aggravated robbery. Because Mr Purua-King would then be required to serve his sentence without parole, the Judge said she did not intend to uplift the starting point of four years and nine months’ imprisonment to reflect Mr Purua-King’s previous offending, as to do so would potentially give rise to a sentence which would be disproportionately severe given Mr Purua-King’s circumstances. The Judge said that, but for the second-strike warning, the uplift would have been in the vicinity of six months’ imprisonment.

[13] The Judge then turned to issues in mitigation and said that she was willing to provide Mr Purua-King with a discount for his youth in the vicinity of 10 per cent or
5.7 months. This led the Judge to a term of 51.3 months’ imprisonment, minus a further 25 per cent for a guilty plea if it was to be entered. This would be around 13 months’ imprisonment, resulting in a final figure of 38 months or three years and two months’ imprisonment. The indication given was, therefore, a sentence of three years and two months’ imprisonment.

[14] When it came to the sentencing on 21 March 2019,³ the Judge noted the question for her that day was whether or not there was any room to move in terms of any further discounts available to Mr Purua-King.⁴ The Judge had no difficulty in accepting that Mr Purua-King was genuinely remorseful for his offending. The Judge indicated that she would, therefore, be willing to discount the indicated sentence by five per cent.⁵

[15] The Judge then referred to a cultural report prepared under s 27 of the Sentencing Act (“the cultural report”). The cultural report provided the Judge with information about Mr Purua-King personally, but also about his whanau, his upbringing and how background cultural matters perhaps had linkages to his offending and his moral culpability. After discussing the report at a little length, the Judge indicated that taking all matters into account, the credit that she was willing to afford to Mr Purua-King for his insight, for the positive outlook in terms of prospects of rehabilitation, and for his cultural background, was an additional five per cent.⁶

³ R v Purua-King [2019] NZDC 11412.

⁴ At [3].

⁵ At [4].

⁶ At [6]-[9].

[16] So the overall total additional credit that the Judge felt that she could give Mr Purua-King, based on his circumstances, was 10 per cent. From the indicated sentence of three years and two months’ imprisonment, the Judge reduced the sentence by an additional four months, leaving an end sentence of 32 months’ imprisonment.⁷

[17] The Judge noted that Mr Purua-King had several outstanding fines (totalling a little more than $1,000). She remitted those and uplifted the sentence of 32 months by one month to 33 months.⁸ The overall sentence imposed on Mr Purua-King was, therefore, two years and nine months’ imprisonment.

Appellant’s submissions

[18] Counsel for Mr Purua-King submits that the Judge made material errors and, in terms of s 250 of the Criminal Procedure Act 2011, a different sentence should have been imposed.

[19] The central focus on appeal is whether the Judge made adequate allowance for the appellant’s personal circumstances – specifically, the interplay of his youth and cultural background, which engaged the principles discussed by the High Court in Solicitor-General v Heta.⁹ Counsel submits that the Judge failed to properly grapple with the influence that Mr Purua-King’s background and upbringing had on his offending, as canvassed in the cultural report, and to sufficiently recognise his rehabilitative prospects in relation to these factors.

[20] Furthermore, counsel submits that there is another justification for reduction of the appellant’s sentence on appeal. This is that a reasonably minded observer aware of all the circumstances of the offence and the three offenders would think something had gone wrong with the administration of justice, given that Mr Purua-King must serve his entire sentence without parole, whereas it is very likely that his co-defendants will not.

⁷ At [10].

⁸ At [11].

⁹ Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.

Discussion

Section 27 reports and discounts for personal factors generally

[21] Before surveying the legal principles relevant to s 27 reports and the information contained therein, I acknowledge counsel for the appellant’s careful explanation at the hearing that he was not seeking to ‘shoehorn’ the contents of the cultural report prepared for Mr Purua-King into the Heta framework. Nonetheless, that case, and the decision of the Court of Appeal in Arona contain importance guidance as to the appropriate use of cultural reports in sentencing, and it is necessary to evaluate the cultural report against the background of these authorities.

[22] Solicitor-General v Heta was an appeal by the Solicitor-General against, essentially, a 30 per cent reduction in sentence for Ms Heta’s personal circumstances. This discount was given on the basis that, once any allowance for Māori post-colonial experience was disallowed (that being impermissible in cases of serious offending¹⁰) the discount was manifestly excessive, even when Ms Heta’s personal circumstances were considered.

[23] A s 27 report was prepared for Ms Heta by Ms Khylee Quince, who also prepared the report in the present case. The report noted a background of alcohol abuse by Ms Heta’s parents, parental absenteeism, violence, and a suppressed factor. Ms Heta completed no secondary education, was a long-term victim of domestic abuse, and bore several children early in life. She had persistently abused alcohol since she was ten years of age, was the partner to several violent men who were themselves heavy drinkers. She had previously attempted to commit suicide.¹¹

[24] Ms Heta was described in the report as proud of her Maori identity and realised the need to balance the aspects of her experience in accordance with tikanga Māori conceptions of wellbeing.¹² Her upbringing was reported to have rendered this impossible, having deprived her of a “root system” in her existence representing the values of aroha (love); manaakitanga (kindness, generosity, and support); wairuatanga

¹⁰ Keil v R [2017] NZCA 563 at [58].

¹¹ Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [14]- [15].

¹² At [16].

(spirituality in the wider sense of insight, wisdom, and self-knowledge); and whanaungatanga (kinship and sense of family connection).¹³ Rather, Ms Heta was described as having persisted in a “fight for survival” throughout her life from the age of ten upwards.¹⁴

[25] Whata J proceeded to contextualise these experiences in terms of the “well documented” ¹⁵ effects of colonisation on Maori communities. The Judge noted that s 27 “mandates consideration of the full social and cultural matrix of the offender and the offending”, and that there is no reason that the Court may not have regard to evidence of systemic Māori deprivation and its contribution to the offending in having regard to “any aggravating or mitigating factor the court thinks fit.”¹⁶ Doing so may inform the actual and relative moral culpability of the offender and the capacity for rehabilitation; thereby assisting the Court in better having regard to and pursuing the relevant statutory principles and purposes of sentencing.

[26] The Judge distinguished the Court of Appeal’s statement in Mika that “it does not logically follow that a person is more likely to be at a disadvantage and to simply offend”¹⁷ by reason of this systemic deprivation and their Māori heritage. The Judge noted that statement was made in response to a submission seeking a ‘fixed’ 10 per cent discount based on social disadvantage seen to necessarily flow from having been Māori. That was a rejection, the Judge said, of Māori ethnicity in itself triggering a discount.

[27] Rather, Whata J said, ethnicity is a permissible consideration where the presence of systemic deprivation in the lives of Māori offenders gives rise to factors that, for them as for any other offender, would give rise to personal factors producing a discount.¹⁸

¹³ At [10].

¹⁴ At [10].

¹⁵ At [40]. See further the materials therein cited.

¹⁶ At [41]. See also Sentencing Act 2002, s 9(4).

¹⁷ Mika [2013] NZCA 648 at [12].

¹⁸ Citing Neal v R (1982) 149 CRL 305 at 326. See also R v Pitt [2001] NSWCCA 156 at [21]; Bugmy v R [2013] HCA 37, (2013) 249 CLR 571 at 594; and Ipeelee v R [2012] 1 SCR 433 (SCC) at [73].

[28] In terms of identifying what will amount to evidence that the presence of systemic deprivation has given rise to these factors, the Judge said that the evidence “need not be elaborate”, noting that:¹⁹

The symptoms of systemic Maori deprivation are reasonably self-evident, including (among other things) intergenerational social and cultural dislocation of the whanau, poverty, alcohol and or drug abuse by whanau members and by the offender from an early age, whanau unemployment and educational underachievement, and violence in the home. Evidence from whanau about the offender’s life is enough. But there must be some evidence identifying the presence of systemic deprivation in the offender’s background and linkage to the offending.

[29] The Judge cited Joseph Williams J’s sentencing notes in Rakuraku by way of illustration:²⁰

This is cumulative and relevant in my view. Your anger and aggression is partly a factor of your personality and you made free choices in that regard. But it is also partly a response to the drivers I’ve discussed that aren’t of your making at all; to the way the world responds generally to Māori boys and men from poor backgrounds. We must be honest with ourselves about that. So it comes as no surprise to me that you sought security in the brutalised and traumatised company of those who share your experience and history – the Mongrel Mob. That shared experience has a terrible magnifying effect when it gathers in one place. To deny that as a contributing factor would be to deny that race and history have any part to play in Māori criminality generally today, and therefore in your own criminality. The sentence I impose must take proper account of this factor if it is to be a punishment that fits both the offences and the offender.

[30] Whata J went so far as to say that “while the s 27 report does not overtly draw linkages between systemic Māori deprivation, the offender and the offending, its presence in Ms Heta’s life can be reasonably inferred.”²¹

[31] Regarding the Court of Appeal’s statement in Keil that the seriousness of the offending necessarily subordinated the purposes of personal rehabilitation and reintegration to the wider societal purposes of accountability, denunciation and deterrence, ²² Whata J noted the Supreme Court’s statement in Hessell that “in the end, almost everything turns of the facts of the particular case. It is part of the judicial

¹⁹ Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [50].

²⁰ R v Rakuraku [2014] NZHC 3270 at [58]. See also R v Eruera [2014] NZHC 3270 at [21]- [23].

²¹ Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [65].

²² Keil v R [2017] NZCA 563 at [58].

responsibility to weigh these.”²³ Accordingly, the Judge did not read the Court of Appeal’s decision in Keil as having sought to indicate that discounts intended to reflect matters contained in a s 27 report could never exceed 20 per cent.

[32] While Whata J agreed with the Solicitor-General that Ms Heta’s upbringing would not warrant a 30 per cent discount, when the full range of factors were considered, contextualised by systemic Māori deprivation, Whata J considered that no issue could be taken with the overall 40 per cent discount awarded for personal mitigating factors on existing authority.

[33] As a closing thought in this regard, one that also emphasised the key importance of identifying factors personal to the offender that provide a linkage between Ms Heta’s Māori identity and the importance of providing that discount in terms of achieving the statutory purposes and principles (particularly rehabilitation), the Judge noted that:²⁴

I accept that the scale of the discount in cases involving very serious violent offending of the present kind would usually be reduced by the countervailing factors mentioned in Keil. But critically in this case recognition of deprivation and personal trauma does not involve condoning the offending. Rather it helps to explain it. Further, the positive outcome of restorative justice process, the views of the victim and the now low‐risk of reoffending presented by Ms Heta, address remaining concerns about accountability, deterrence, denunciation and protection of the public.

[34] The Court of Appeal, in R v Arona,²⁵ considered Whata J’s approach in Heta. The Court of Appeal saw the relevance of s 27 reports to sentencing as resting “on the premise that systemic deprivation affecting Māori generally is traceable to linkages between that deprivation, the offender and the offending”²⁶. Adopting Whata J’s reasoning, the Court of Appeal noted that linkage may be self-evident in some cases, but where that is not the case, some evidence – albeit not necessarily elaborate evidence – is needed to establish the connection.²⁷

²³ Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [26], citing R v A [1994] 2 NZLR 129 (CA)

at 132.

²⁴ Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [66].

²⁵ Arona v R [2018] NZCA 427.

²⁶ At [59].

²⁷ At [59], citing Heta at [50].

[35] Equally importantly, the Court of Appeal also emphasised its previous statement in Keil that sentencing for some offences may be dominated by considerations such as denunciation, victim impact and community protection, reducing and perhaps eliminating any discount for culpability on cultural grounds.²⁸ As Whata J noted in Heta, the Court of Appeal in R v Misitea said in respect of very serious sexual offending that “personal circumstances can carry little weight against the gravity of crimes of this kind”²⁹. Similarly, in respect of serious drug offending, the Court of Appeal in Jarden v R said that “the crucial importance of deterrence”³⁰ means “only modest discounts are available for personal circumstances”³¹.

[36] These statements emphasise the fact that Whata J’s approach in Heta represents a conventional application of the purposes and principles underpinning the sentencing regime and, in fact, are an attempt to give fuller effect to the wording of the statute by taking all relevant (that is, demonstrably causally linked) personal factors of offenders into account. The evidential nexus required, it appears from the treatment of Heta in Arona, is one that connects the contents of the report to the circumstances personal to the offender as are relevant at sentencing. Accordingly, to return to my point at [21] above, Heta and the other cases noted above are relevant in all cases in which a cultural report is relied on in sentencing; whether that report specifically relies on similar notions of cultural deprivation or not.

The cultural report in the present case

[37] In her report on Mr Purua-King, Ms Quince noted that he was whāngai’ed³² at two weeks old to his mother’s tuakana (eldest sister). Mr Purua-King says he had a happy childhood and was clearly well loved and cared for by his whāngai parents, who he says “did their best to keep me away from trouble”.

²⁸ At [61], citing Keil at [57], also citing R v Rakuraku [2014] NZHC 3270 at [58] and R v Eruera

[2014] NZHC 3270 at [21]- [23].
²⁹ R v Misitea [1987] 2 NZLR 257.

³⁰ Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612.

³¹ Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at fn 38.

³² A whāngai is a “foster or adopted child. This is a customary practice. Often a couple’s first child was brought up by grandparents or adopted by one of the brothers or sisters of a parent.”: John C Moorfield (ed) Te Whanake Te Aka Māori-English, English-Māori Dictionary (3rd ed, Pearson New Zealand, Auckland, 2011).

[38] Mr Purua-King had no real relationship with his birth parents. He says they have been long-term drug addicts and his father has spent much of Mr Purua-King’s life in prison.

[39] Mr Purua-King’s passion is kapa haka. He says he loved it and he misses the discipline and performance associated with the pursuit, but that in the end he made a choice to go down the path of gang involvement that he did in pursuing a sense of belonging and pride, and that drugs and alcohol took over. He has previously worked in scaffolding and forestry and loves heights and the freedom associated with being outside.

[40] Mr Purua-King has no welfare history or youth justice background. He says he “came late” to offending, which stems from drug use from the age of 15 or so. He has been a member of Mangu Kaha since the age of 15 or 16. Mr Purua-King’s drug use and offending has led to a breakdown of his family ties.

[41] Notwithstanding the stable and loving environment that his whāngai parents provided for him, the report notes that he does have some resentment and confusion stemming from his status as a tamaiti whāngai (customarily adopted child) in their whānau. The report invites the inference that these relationship tensions and sense of alienation are at the root of the lifestyle choices he made from the age of 15.

[42] Ms Quince describes Mr Purua-King as a young man demonstrating the physical and emotional signs of whakamā – shame, remorse, embarrassment. The key immediate objective for Mr Purua-King is to maintain a lifestyle that is alcohol and drug free. He acknowledges needing support to manage conflict.

[43] In the case of Ms Heta, the sentencing judge gave a 30 per cent discount for personal circumstances, which included not only the cultural factors identified in the s 27 report, but also her “horrific background” as described in the report. She gave her an additional 10 per cent for participating in a restorative justice conference.

[44] In the case of Mr Purua-King, the sentencing judge gave a 20 per cent discount for personal circumstances, which included his youth, insight, positive outlook in
terms of the prospects of rehabilitation and cultural background identified in the s 27 report. Mr Purua-King was willing to participate in a restorative justice conference, but the victim was not emotionally able to take part.

[45] Ms Heta’s “horrific background” can be contrasted with Mr Purua-King having had “the benefit of a fundamentally solid early life”. The very large discount awarded in her case reflected the particularly profound systemic effects of Māori deprivation on her life. Given this contrast, and despite the inferential nexus between Mr Purua- King’s family circumstances and Māori cultural deprivation, and in turn his offending, it is difficult to justify any further discount for cultural factors than that awarded by the sentencing judge. I am satisfied that the Judge was not wrong when she said:

However, as I have already mentioned your situation is slightly different in that you did have a whanau who loved you and supported you. I appreciate

...there were issues arising where you felt as though you were not wanted because you were a whāngai child as opposed to a biological child. However, I do not see that particular issue as being such that it would necessarily explain the decisions that you then made as a 15 year old young man.

Impact of three strike legislation and considerations of parity

[46] In R v Lawson, the Court of Appeal noted the importance of justice being seen to be done even-handedly as between defendants. Accordingly, co-defendants ought not to receive disparate sentences unless this can be explained in terms of their comparative culpability and the mitigating and aggravating factors relevant to each.³³ If a “reasonably minded independent observer”, bearing in mind these factors, would nonetheless “think that something has gone wrong with the administration of justice”³⁴ comparing two or more co-offenders’ sentences, an appeal court may intervene to address this apparent disparity.

[47] Mr Purua-King was sentenced to two years and nine months’ imprisonment on charges of unlawful taking of a motor vehicle and aggravated robbery. Because the aggravated robbery was Mr Purua-King’s second-strike offence, he is required to serve the entire sentence without parole.³⁵

³³ R v Lawson [1982] NZCA 67; [1982] 2 NZLR 219 (CA) at 223. See also Pearce v R [2014] NZCA 388.

³⁴ Lawson at 223.

³⁵ Sentencing Act 2002, s 86C(4).

[48] Mr Purua-King’s two co-offenders have also both pleaded guilty. Ms Thomson-Moka has been sentenced on the same two charges plus a third charge, another aggravated robbery of a dairy 10 months earlier. She received a sentence of three years and four months’ imprisonment. Her criminal history is said to be similar to that of Mr Purua-King. However, because Ms Thompson-Moka has not previously received a first strike warning, she will be eligible for parole after serving a third of her sentence, or about 13 or 14 months.³⁶

[49] In R v Barnes,³⁷ the Court of Appeal stated that in most cases the sentencing exercise should be conducted without reference to parole eligibility. However, the Court also said that, in exceptional cases, the sentencing court may apply a downward adjustment to a sentence for a defendant facing a second strike if the absence of such an adjustment would produce a manifestly unjust result.

[50] The key factor placing Mr Barnes into the exceptional category was that his first strike offence was an offence that did not involve serious violence, despite having been a qualifying offence. The Court of Appeal held that the circumstances of Mr Barnes’ previous offending did not place him within the category of persistent repeat offenders identified in s 3 of the Sentencing and Parole Reform Act whom Parliament intended to deny parole in adopting the three strikes legislation. An adjustment was therefore required to his sentence.

[51] The Court gave, as another example of an exceptional case, a person who is overcharged and for that reason came within the three strikes regime. The examples given in Barnes do not close the categories of case in which an adjustment will be necessary; instead illustrating the importance of an adjustment being made where the mechanical operation of the three strikes regime does not advance its purpose.

[52] The Judge was not unaware of the consequences of sentencing Mr Purua-King for a stage-2 offence. She, therefore, declined to uplift the starting point of four years and nine months’ imprisonment for his criminal history, saying “that to do so would

36. The third co-offender is yet to be sentenced, but is in a somewhat different category because she is younger, a first offender and faces only one charge.

³⁷ R v Barnes [2018] NZCA 42, [2018] 3 NZLR 49.

potentially give rise to a sentence which would be disproportionately severe”. In effect, Mr Purua-King would be doubly penalised by such an uplift as his criminal history included a stage-1 offence, which meant that his stage-2 conviction would be served without parole.

[53] Moreover, unlike the case of Barnes, Mr Purua-King’s stage-1 offence did involve violence. Mr Purua-King was convicted of the aggravated robbery of a mobile trader. Mr Purua-King threatened the victim with a knife and took his phone after going through his pockets.

[54] I accept that the Judge did not give explicit consideration to the impact of remitting Mr Purua-King’s fines and uplifting his sentence by one month. Mr Purua- King will have to serve that extra month in full, rather than 10 days or so if he had been eligible for parole. The additional days to be served by Mr Purua-King are, however, sufficiently marginal to render any adjustment by this Court on appeal unnecessary.

[55] While Mr Purua-King will have to serve his sentence of two years and nine months’ imprisonment in full, Ms Thompson-Moka will be eligible for parole after serving 13 months. It is, however, not known whether she will be paroled after serving a third of her sentence. In any case, that outcome is exactly what was intended by the legislation. Given Mr Purua-King’s criminal history and the nature of his two offences subject to the three strikes regime (two aggravated robberies of vulnerable shopkeepers or traders with the use of a knife and threats to kill), the nominal reasonable observer would accept any disproportionality necessary results from the operation of the three strikes regime. It is not out of kilter with the result in respect of an offender who is not subject to the three strikes regime.

Result

[56] The appeal against sentence is dismissed.




Woolford J