POHE v R [2004] NZCA 165 (2 August 2004)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA105/04THE QUEEN

v

GABRIEL DONALD POHE

Hearing: 21 July 2004

Coram: O'Regan J Panckhurst J Paterson J

Appearances: P T Birks for Appellant
A Markham for Crown

Judgment: 2 August 2004

JUDGMENT OF THE COURT DELIVERED BY O’REGAN J

[1] Mr Pohe pleaded guilty on arraignment in the Rotorua District Court to two counts of burglary and one count of assault with intent to commit sexual violation. Judge Weir sentenced him to a term of imprisonment of six years. He has appealed to this Court against that sentence, on the basis that the sentence was wrong in principle and manifestly excessive.

Background

[2] On 1 May 2003 the victim returned to her home to find that the front door had been smashed open. She reported the matter to the police. Nothing was missing from the house.
[3] On 3 May 2003, the victim answered a knock at the door in the early evening. She was expecting the arrival of a female friend, with whom she planned to go out for the evening. In fact the appellant was at the door. He was naked from the waist up, with a T-shirt wrapped around his head and face to conceal his identity. He told the victim he was going to “get her”, but she managed to shut the door after a short struggle and prevented entry. The victim then rang the police.
[4] While the victim was on the phone, the appellant entered the victim’s home from the rear door (having smashed his way through the door). He then attacked the victim and punched her repeatedly. She dropped the telephone and the T-shirt dropped from the appellant’s face. He pinned the victim to the ground, straddled her and again told her he intended to get her, saying “I’ve got you where I want you”. Luckily, the victim’s friend then arrived at the front door and the appellant fled. The appellant was located by the police a short time later. He admitted that he had broken into the victim’s home on the first occasion, and attacked the victim on the second occasion, with the intention of raping her.

District Court sentencing

[5] The Judge noted the serious physical and emotional harm done to the victim. While the physical injuries were serious, and required the victim to take a week off work, the emotional harm has been ongoing. The victim has had to move to a new address and still suffers broken sleep, headaches and inability to concentrate, which has required her to put her study programme on hold. It has also affected her confidence when meeting people and leads her to panic when approached in social situations.
[6] The Judge referred to the factors set out in ss7 and 8 of the Sentencing Act 2003. He made particular reference to the decision of this Court in R v Hassan [1999] 1 NZLR 14. In that case a sentence of six years imprisonment was upheld where the appellant had pleaded guilty to charges of assault with intent to commit sexual violation and injuring with intent to injure, both charges arising from the same incident.
[7] In that case the attack had taken place in a park in central Wellington in the early hours of the morning. Mr Hassan approached the victim and attempted to engage her in conversation. When she tried to walk past him he assaulted her, and then tried to kiss her. When he placed his tongue in her mouth she bit it, which led to Mr Hassan then pushing her onto the ground. He then placed himself between her legs and pulled her tights down above her knees, with the intent of sexually violating her. The victim kicked him and tried to scramble away, which led to Mr Hassan kicking her to the back of the head, as a result of which she fell down a steep bank. She suffered significant injuries and considerable emotional scaring. Mr Hassan was on bail pending trial on other offences at the time of the attack, and one of those offences was a charge of indecent assault on which he was later convicted.
[8] The Judge noted that Mr Pohe’s counsel had attempted to dissuade him from imposing a sentence based on Hassan, arguing that it was not a comparable case. In particular, the Judge noted that counsel had suggested there was less violence in the present case, and no attempt to remove clothing or kiss the victim. However the Judge noted that the physical assault appeared to be more sustained in the present case. The Judge accepted that the situation in Hassan was aggravated by the fact that Hassan was on bail for earlier sexual offending.
[9] The Judge referred to other cases which are of limited relevance to the present appeal, and then turned to the calculation of the sentence.
[10] The Judge determined an appropriate starting point at between four and five years imprisonment, but noted there were significant aggravating factors. These were:

(a) The offence involved forced entry into a private house;

(b) There was a degree of premeditation inherent in the offending, given that the appellant broke into the victim’s house not once but twice;
(c) There was an element of predatory behaviour, given that the appellant knew that the victim was a woman living alone;
(d) The appellant had previous convictions for violence including one for male assaults female.
[11] The Judge said it was significant that the attack ceased only because the victim’s friend arrived on the scene. On the other hand he noted that the appellant was described in the probation report as being intellectually challenged. He noted the reference in the probation report to the appellant’s remorse, but also noted that the report said the appellant did not accept full culpability for what he had been charged with.
[12] Taking all of these matters into account the Judge determined that the appropriate sentence was one of six year’s imprisonment.

Appellant’s submissions

[13] On behalf of the appellant, Mr Birks submitted that the sentence was manifestly excessive, and that a sentence of between three and four years imprisonment ought to have been imposed. In particular, he argued:

(a) Insufficient weight had been given to the appellant’s guilty plea;

(b) The Judge gave too much weight to the appellant’s expressed intention of rape, given that no overt sexual moves had been made;

(c) The Judge wrongly equated the situation in the present case with that in R v Hassan;

(e) Insufficient weight was given to the lack of prior similar offending on the part of the appellant;
(f) The Judge gave too much weight to the apparent intellectual impairment of the appellant when there was no evidence to support this.
[14] We will consider each of these in turn.

Guilty plea

[15] The guilty pleas were entered on arraignment after the appellant had unsuccessfully challenged the admissibility of his confession. The s344A application made by the Crown was heard only on the day before the proposed trial, though it could have been heard much earlier. Mr Birks said that the guilty plea would have been made as soon as the confession was ruled admissible, and that the fact that this had not occurred until late in the day was a product of delays in the Court system rather than anything which could be said to be the fault of the appellant. He said that the appellant should therefore have been given full weight for the guilty plea.
[16] On behalf of the Crown Ms Markham argued that, having unsuccessfully challenged the admissibility of his confession, the appellant could not claim the benefit of an early guilty plea. In that respect, she referred us to the decision of this Court in R v Tipene CA269/01 27 May 2002, in which it was said (at [13]):

This submission [by counsel for the appellant] fails to distinguish between a plea at the earliest opportunity for which credit will be given, and delaying a plea for technical reasons, however reasonable that tactic might seem to the guilty person, the timing of which may deprive the offender of a discount.

[17] In Tipene, the Court said it was appropriate that no reduction of sentence was made to take account of Mr Tipene’s guilty plea, because it had not been made at the first reasonable opportunity. The reason for the delay of the guilty plea was that an earlier admission of guilt might have jeopardised Mr Tipene in relation to three counts on which he was later discharged.
[18] In our view the Judge was entitled to give limited weight to the guilty plea, because it was not made at the first available opportunity. Of course, Mr Pohe was entitled to challenge the admissibility of his confession, but having done so he could not expect the Court to sentence him on the basis that no such challenge had ever been made.

Overt sexual moves

[19] While the actions of the appellant did not involve any overt sexual moves, in the sense that he did not attempt to remove the victims clothing or to kiss her, as Mr Hassan did to his victim, we do not think there is any real basis for criticism of the Judge’s treatment of this aspect of the offending. Mr Pohe was charged with assault with intent to commit sexual violation, and admitted that the assault was motivated by such an intention. Having pleaded guilty to that charge, he had to accept that sentencing would proceed on the basis that the assault was motivated by such a sexual intention even if there was no overt physical action in pursuit of the attention. In any event, as Ms Markham indicated, the appellant’s action in the straddling of the victim when she was on the ground and telling her that he now had her where he wanted her could fairly be classified as having a sexual overtone.

Comparison with Hassan

[20] No two cases are ever exactly the same, and reliance on other decisions in sentencing matters must recognise that fact. It is true that there were a number of differences in the Hassan case, particularly the fact that the offending occurred while Mr Hassan was on bail and the explicitly sexual overtones. But the present case also had serious features that were not present in the Hassan case, particularly the invasion of the victim’s home and the very persistent and violent nature of the attack, which ceased only when the appellant was interrupted by the arrival of the victim’s friend.
[21] Ms Markham pointed out that the guilty plea in Hassan appears to have been made at a very early stage, because the sentencing took place only three months after the date of the offence itself. She said that, since full weight had been given to the guilty plea, this meant that a starting point of somewhere between eight and nine years must have been adopted in order to arrive at a final sentence of six years. Overall, Ms Markham argued that this case was broadly similar to Hassan, and that there was no basis for arguing that the present sentence was manifestly excessive when compared to that imposed in the Hassan case. We accept that submission.

Prior offending

[22] Mr Birks argued that too much weight was given to prior offending, though the Judge mentioned it only in passing. Ms Markham provided us with copies of the summary of facts and sentencing notes relating to the male assault female charge for which Mr Pohe was sentenced in 1999 to nine months imprisonment (suspended for one year) and five months periodic detention. It is clear that this was a serious incident: the victim received a swollen nose, swollen lip, bruised cheeks and a broken jaw as a result of the assault. In the circumstances, we do not think that the Judge gave too much weight to this previous conviction: it was clearly relevant, and in any event, it is not apparent that the Judge overstated its importance.

Intellectual impairment

[23] Mr Birks argued that the Judge treated intellectual impairment as an aggravating factor, but it seems to us that the Judge in fact treated it as a mitigating factor. We accept that it is not an aggravating factor, but we reject Mr Birks’ submission that the Judge treated it as such.

Result

[24] Overall, we are not satisfied that the appellant has established that the sentence imposed by Judge Weir was manifestly excessive in the circumstances of this case. In view of the very serious nature of the assault, the appellant’s acknowledged intent to commit rape, the very serious and ongoing impact of the assault on the victim and the aggravating factors to which we have referred, the sentence of six years was, in our view, within the available sentencing range. We therefore dismiss the appeal.

Solicitors:
Crown Law Office, Wellington