Pulu v R [2014] NZCA 24 (20 February 2014)

Last Updated: 20 February 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA405/2013 [2014] NZCA 24
BETWEEN	JOHN FAOAGA PULU Appellant
AND	THE QUEEN Respondent

Hearing:	12 February 2014
Court:	Harrison, Asher and Dobson JJ
Counsel:	P T Eastwood for Appellant G H Vear for Respondent
Judgment:	20 February 2014 at 11.00 am

JUDGMENT OF THE COURT

A The application for extension of time is granted.

B The appeal against sentence is dismissed.
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REASONS OF THE COURT

(Given by Asher J)

[1] In the early hours of Friday, 1 July 2011 the victim was in the lounge area of his home when he noted a sensor light come on outside the house. As he went to look at the security monitor the front ranchslider door imploded inwards. Realising this was a home invasion the victim ran to the rear of the house to get a steel pipe to protect himself. When he returned to the front of the house he found himself confronted by five males holding weapons, one of whom was the appellant, John Pulu.
[2] He was attacked with baseball bats and a small axe, and ultimately hit on the head numerous times so that he collapsed on the ground. He was dragged toward the kitchen and an attempt was made to tie him up with plastic ties the offenders had brought with them. When disturbed by the victim’s partner the offenders left through the ranchslider and drove off, to be apprehended shortly thereafter by the police. A car belonging to Mr Pulu was used throughout.
[3] The complainant suffered a severely swollen and shut eye and had bled profusely. He was hospitalised and required sutures for a deep laceration to his head and a broken nose. He had no permanent injuries.
[4] One of the five offenders, Mr Chan, pleaded guilty. The other four were found guilty after a trial and were sentenced on the basis of a starting point of seven years’ imprisonment. The end sentence was the same as the starting point, save for one co-offender who had been on EM bail. Judge Gittos considered that all four had been actively involved in the infliction of injury to the victim, and noted the level of violence and terror imposed by the offenders. Mr Pulu was one of the four who defended the charges, and he now appeals against the sentence imposed upon him. His co-offenders have not appealed. Mr Pulu’s notice of appeal was filed 40 days late. There being no objection, we extend time.
[5] Mr Chan, who pleaded guilty, had been earlier sentenced by Judge Hinton. The starting point for Mr Chan was set at five and a half years’ imprisonment. There were significant discounts allowed for Mr Chan for an early guilty plea, remorse, and positive restorative justice outcomes. The total discounts came to 50 per cent so that the end sentence for Mr Chan was two years and nine months’ imprisonment.
[6] Mr Eastwood for Mr Pulu puts forward two grounds of appeal: first that the sentence of seven years’ imprisonment was manifestly excessive, and second that there was a gross disparity between Mr Pulu’s sentence and that of Mr Chan.

Manifestly excessive

[7] There were five features that contributed to the seriousness of the grievous bodily harm offending in terms of the aggravating features set out in R v Taueki.^[1] There was premeditation (the robbery was planned because it was believed that this was the home of a drug dealer), there was the use of weapons (baseball bats and an axe), there was attacking to the head, there were multiple attackers, and there was a home invasion. All features were present to a moderately serious degree. There are no factors that could be said to reduce the seriousness of the offending.
[8] Given those aggravating factors, Mr Pulu was fortunate that the Judge did not determine that the offending fell within band three of R v Taueki warranting a sentence of between nine and 14 years. Far from the seven years being manifestly excessive, it was a lenient sentence.

Parity

[9] As to parity, Judge Hinton expressly recognised in his sentencing of Mr Chan that:^[2]

... if you had not stood back but participated in the actual violence inflicted with the baseball bat and actually caused the injuries then the starting point in relation to both charges would be considerably higher.

Thus, in fixing a starting point of five and a half years’ imprisonment Judge Hinton was contemplating that the other offenders who did inflict the violence would be facing higher starting points.

[10] Judge Gittos expressly considered the sentence imposed upon Mr Chan when he sentenced Mr Pulu, and noted that Mr Chan was a “lesser participant” and a person who “took no part in the violence which took place in the house.”^[3] Thus both Judges recognised that there was no parity between Mr Chan’s culpability and that of the other offenders. That distinction was properly drawn.
[11] Moreover, Mr Pulu could not rely on the features which enabled Mr Chan to achieve the 50 per cent discount for his early guilty plea and other features. Unlike Mr Chan, Mr Pulu had not entered a guilty plea, had not shown genuine remorse, and had not engaged in a successful restorative justice meeting.

Result

[12] For these reasons it has not been shown that the sentence imposed upon Mr Pulu was either manifestly excessive or materially disproportionate. The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Taueki [2005] 3 NZLR 372 (CA) at [31].

^[2] R v Chan DC North Shore CRI-2011-044-004592, 22 February 2013 at [12].

^[3] R v Johansson and Others DC Auckland CRI-2011-044-004592, 11 April 2013 at [12].