The Queen v Poki [2001] NZCA 159; (2001) 18 CRNZ 599 (24 May 2001)

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The Queen v Poki [2001] NZCA 159 (24 May 2001); (2001) 18 CRNZ 599

Last Updated: 13 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 14/01

THE QUEEN

V

ANDREW POKI

Hearing:	23 May 2001
Coram:	Tipping J Heron J Paterson J
Appearances:	C P Comeskey for Appellant J M Jelas for Crown
Judgment:	24 May 2001

JUDGMENT OF THE COURT DELIVERED BY HERON J

[1] The appellant in this case appeals against his sentence of 10 years imprisonment for causing grievous bodily harm to Stephen Ian Byrne with intent to cause such harm, and robbing Stephen Ian Byrne of a wallet and contents, cash and keys. He was found not guilty on a charge of attempted murder.
[2] His co-offender in the attack was also found not guilty of attempted murder but guilty of the alternative charge of causing grievous bodily harm to which he had earlier indicated a willingness to plead guilty. He was acquitted of the robbery charge.
[3] The complainant on Friday 24 March 2000, in the early morning, was found suffering from severe head and other injuries in downtown Auckland. He had finished work in the early hours of Friday 24 March and after spending time in a late night bar was then set upon by the appellant and Phillip James Taylor in Fort Lane. The complainant suffered multiple lacerations over his face and head, bruising and bleeding of his brain, a skull fracture, bruising to his liver, fractures to his left jaw cheek bones and 12th rib. The complainant was admitted to the brain injury rehabilitation service at Burwood Hospital in Christchurch and has ongoing serious permanent disabilities.
[4] The Judge described the aggravating features as follows:

There are a number of aggravating features which have been outlined by the Crown. I am satisfied from the evidence that Mr Byrne was the victim of a brutal attack because he was homosexual. I am satisfied there was premeditation and that you lured him into the secluded lane with the intention of attacking him. It was a vicious attack by two people on a vulnerable victim who was unable to defend himself because of his intoxication. The attack was not just a momentary burst of violence but a sustained beating over a substantial period of time. Neither of you did anything to help the victim when it must have been clear to each of you that he was in a very serious condition. You left him helpless and unconscious. There are then, of course, the consequences to him.

[5] The Judge considered that the assault should carry a term of nine years imprisonment but that the robbery, whilst part of the chain of events, called for an additional one year to make a total of ten years. The Judge then sentenced him to three years imprisonment on the aggravated robbery making it concurrent with the ten year sentence.
[6] Taylor received a sentence of seven and a half years imprisonment receiving an 18 months reduction from the nine years previously assessed for his involvement in the offending, for his willingness to plead guilty which was not accepted by the Crown. He was not convicted of the robbery.
[7] The only point raised on the appeal by the appellant, is a question of disparity, the appellant claiming that the credit shown Taylor has created a disparity and the appellant is effectively being penalised for his not guilty plea to the attempted murder charge, in respect of which he was acquitted.
[8] We should say at once that we see no difficulty in accepting the Judge’s starting point of nine years. It is consistent with the overall categories mentioned in R v Hereora [1986] 2 NZLR 164 (CA) and the further comments on those categories which this Court considered in R v Curry CA 272, 273 326/00, 28 September 2000, when it said:

We are not attracted by an approach which involves a minute dissection of the factual circumstances of previous cases analysing exhaustively the particular circumstances of the offence and the offender. Such an exercise is frequently skewed as there is not a consistency as to whether what are being compared are starting points or eventual effective sentences. What can be important is the principle which emerges from previous cases in assisting with a determination of the true culpability in the instant case. Similarly, when this Court referred to bands of offending in Hereora that is not to be interpreted as suggesting some mechanical process of pigeon-holing but rather highlighting factors which will influence the particular sentence in the total circumstances of an individual case.

[9] That case which involved a violent but weaponless attack was held to have eight aggravating features of which six appear to apply to this present case. In brief, the intense violence inflicted by more than one person; the pursuit of the victim in the absence of meaningful provocation; the resumption of the attack after the victim was rendered unconscious and helpless; the homophobic motivation (in Curry it was racial); the use of boots to the victim’s head; and the life threatening nature of the injuries carrying long term physical and psychological consequences.
[10] Plainly nine years was an appropriate starting point for the Judge as it was found to be in Curry.
[11] Mr Comeskey suggested that the discount of 18 months for the willingness of Taylor, but for the charge of attempted murder, to plead guilty, created a disparity particularly when the appellant’s sentence was further increased for the robbery. We do not agree. The appellant offered no such plea and the overall sentence had to reflect the robbery as well. Standing back and comparing the two sentences reveals no disparity of a kind which would call into question the sentence of ten years for this very serious offending.
[12] The medical reports would tend to suggest that the victim is very seriously damaged as a result of his brain injury and he is clearly only partially able to continue to support himself. There was no challenge to the Judge’s finding that as a consequence of his overall injuries he will be severally handicapped for the rest of his life and the quality of his life has been gravely diminished.
[13] Although only aged 20 years at the time of the offending, the appellant had a number of convictions. He has had five sentences of periodic detention but his response generally to supervision and other interventions has been poor. He is an intelligent man who it seems was badly treated by his step father, and a great deal of his difficulties seems to have been attributed to those early family conflicts. The gravity of these crimes makes his personal situation largely inconsequential.
[14] The appeal against sentence is dismissed.

Solicitors:
Davies Law, New Lynn, Auckland for Appellant
Crown Law Office, Wellington