THE QUEEN v JOHN POUAKA [2002] NZCA 178 (24 July 2002)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca77/02

THE QUEEN

V

JOHN POUAKA

Hearing:	22 July 2002
Coram:	Tipping J Ellis J Panckhurst J
Appearances:	G J King for Appellant J M Jelas for Crown
Judgment:	24 July 2002

judgment of the court DELIVERED BY TIPPING j

[1] John Pouaka appeals against a total sentence of eight years imprisonment imposed upon him after trial on charges of aggravated robbery, aggravated burglary and threatening to kill.At the same time the Judge reactivated on a concurrent basis a suspended sentence of two years imprisonment previously imposed on Mr Pouaka for burglary.

[2] During the evening of 24 April 2001 Mr Pouaka and three other gang associates went to a friend's address after a day spent drinking.The other associates were Mr Nia Nia, Mr Brown and Mr Bell.A group of Fijian Indian immigrants lived opposite the address to which the four men repaired.One of Mr Pouaka's friends went across the road to visit the immigrants' house.She was followed shortly thereafter by Mr Pouaka, Mr Nia Nia and Mr Brown.Mr Bell does not appear to have gone into the house.Those who entered did so by force and demanded money. Mr Brown had armed himself with a hammer.Mr Nia Nia prevented the complainants from calling the police by disconnecting the telephone. Mr Pouaka got a knife from the kitchen.Two of the complainants were taken into a bedroom.The remaining complainant was assaulted and kicked. While holding the kitchen knife to the throat of one of the victims, Mr Pouaka threatened to kill her.The group stole money and chattels.

[3] Mr Nia Nia pleaded guilty to aggravated robbery at an early stage.He was sentenced by Heron J to five and a half years imprisonment, the Judge having taken as his starting point eight years imprisonment.That starting point was discounted because of Mr Nia Nia's youth (he was 18 at the time), his prompt plea of guilty, and his relatively smaller role.Just before the trial was due to commence, Mr Bell pleaded guilty to aggravated robbery and aggravated burglary.He was sentenced by the District Court Judge to three and a half years imprisonment on those two charges.

[4] Mr Pouaka and Mr Brown pleaded not guilty but were convicted after trial; Mr Pouaka of the crimes earlier mentioned, and Mr Brown of aggravated robbery, aggravated burglary and the kidnapping of one of the victims.Both Mr Pouaka and Mr Brown were sentenced to eight years imprisonment.

[5] Mr King argued that Mr Pouaka's sentence should be reduced on account of its disparity with the sentence of three and a half years imposed on Mr Bell.Mr Pouaka's appeal is out of time, he having escaped from custody and not having filed his appeal until after he was recaptured.As a ground for extension of time, escaping from custody is not one of overwhelming merit.Nevertheless if we had thought that Mr Pouaka's appeal had substance, we would probably have been willing to grant an extension.

[6] Mr Pouaka and Mr Brown were sentenced together.Mr Bell was sentenced by the same Judge later the same day.Mr King informed us that Mr Pouaka feels that pressure was put on Mr Bell to plead guilty, even though he might not have wished to do so.Whether that be so or not, we do not regard this point as supporting Mr Pouaka's appeal.There is no suggestion that the Judge sentenced him more harshly on the premise that he had been involved in putting pressure on Mr Brown.Indeed the Judge's sentence of eight years added nothing on account of the reactivated two year sentence for burglary, because he made it wholly concurrent.

[7] Mr King's argument was that a fair minded and dispassionate observer, viewing the sentence of eight years imposed on Mr Pouaka against that of three and a half years imposed on Mr Brown, would feel that something had gone wrong with the administration of justice, and thus Mr Pouaka's sentence should be reduced for disparity reasons.We say immediately that a starting point of eight years was, in our view, entirely appropriate for the very serious offending in which Mr Pouaka involved himself.Hence, as Mr King rightly accepted, the only basis upon which Mr Pouaka's sentence might be reduced is one of disparity.We do not, however, consider that sufficient grounds for any disparity reduction have been established.

[8] There are five discrete points which, in our view when taken together, justify the difference between the two sentences.First, Mr Pouaka was unable to obtain any credit for pleading guilty.Mr Bell was entitled to some credit on that account, albeit his pleas came very late.Second, Mr Pouaka played a much more substantial role in the offending than did Mr Bell.The basis on which Mr Bell was sentenced was described by the Judge in this way.He said Mr Bell was associated with the offending by his presence, assistance and encouragement outside the address, all of which he had implicitly acknowledged by his guilty plea.The other participants actually invaded the complainants' home by force, whereas there was no evidence to suggest that Mr Bell had gone inside and he was sentenced on that basis.Mr Pouaka was a full participant in the armed raid on the complainants' house during the course of which he armed himself with a knife and threatened to kill one of the victims while holding a knife to her throat. The third point derives from this aspect.Mr Pouaka was convicted on a serious charge of threatening to kill with which Mr Bell was not associated.

[9] The fourth point is that the Judge chose to make the activated two year sentence for the earlier burglary run concurrently with the eight year sentence for the present offending.The fifth point relates to the different records of Mr Pouaka and Mr Bell for the period of two years or so prior to the present offending.Mr Pouaka's record in that respect was worse than that of Mr Bell.As we have said, when all these points of distinction as between Mr Pouaka and Mr Bell are brought to account, we do not consider that there is any legitimate basis upon which the disparity in the sentences imposed on each of them can be regarded as grounds for reducing Mr Pouaka's sentence.A fair minded observer aware of all the relevant circumstances would view the difference as justified.

[10] As Mr Pouaka's substantive appeal has no prospect of success, we regard this as a case in which it is appropriate to refuse leave to appeal out of time.In most cases an extension of time is given, if necessary, without objection from the Crown.The Crown did not specifically object in the present case but, in our view, those who fail to appeal in time as a result of escaping from custody should not, absent substantial merit, have time extended in their favour.

[11] Mr Pouaka's application for leave to appeal out of time is accordingly dismissed.

Solicitors

Crown Law Office, Wellington