Poi v R [2015] NZCA 300 (10 July 2015)

Last Updated: 21 July 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA726/2014 [2015] NZCA 300
BETWEEN	JASON JAMES POI Appellant
AND	THE QUEEN Respondent

Hearing:	30 June 2015
Court:	Wild, Keane and Kós JJ
Counsel:	M J Phelps for Appellant S K Barr for Respondent
Judgment:	10 July 2015 at 2.30 pm

JUDGMENT OF THE COURT

1. The application for leave to adduce fresh evidence is granted.

2. The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT
(Given by Kós J)

[1] A violent assault, with a tragic sequel. Mr Poi and a friend administered a prolonged beating to the victim. Mr Poi hit him repeatedly with a bottle. Mr Poi was convicted by a jury of wounding with intent to injure. He was sentenced to three years’ imprisonment.^[1] Four months after his sentence began Mr Poi was himself the victim of a serious assault — beaten by another prison inmate. Mr Poi suffered traumatic brain injuries. He remains in a coma. He will likely require lifelong care. He has been given early release by the Parole Board.^[2] Despite his release on parole into a nursing facility, Mr Poi’s family contend the original sentence was too severe.^[3]
[2] The facts here were that an argument erupted after a party at Mr Poi’s address, when the complainant, Mr Poi and Mr Poi’s flatmate went to the complainant’s address. It concerned cigarettes supposedly stolen by a friend of the victim. Mr Poi’s flatmate (who was his co-defendant) began the fight. It was not provoked by the victim. Mr Poi joined in. The victim was knocked to the ground. The defendants punched and kicked him repeatedly. They detained him, despite his attempts to escape, to ensure he did not lay a complaint. The punching, kicking and stomping continued. Mr Poi hit the back of the victim’s head repeatedly with a bottle. The beating continued after that for another half hour. Once the defendants were satisfied the victim would not call the police, he was made to shower (to wash off the blood). He was then released. He had seven lacerations to his scalp, a fractured rib, a broken tooth and other more minor injuries.
[3] Mr Phelps advanced three arguments before us.

Starting point too high?

[4] Judge Downs adopted a starting point of three and a half years’ imprisonment. Mr Phelps submits this was too high. Mr Phelps accepts that the violence meted out by Mr Poi to the victim involved the four aggravating factors identified by the Judge: use of a weapon, attack to the head, multiple attackers and serious injury. Mr Phelps described the weapon — a bottle from which the group had drunk liquor — as an opportunistic weapon. Perhaps so, but a weapon it still was. Mr Phelps also accepts that the offending was either at the top of band two or the bottom of band three in the guidelines given in Nuku v R.^[4]
[5] We are satisfied the sentencing Judge was correct to treat this as a lowerlevel band three case, involving the four aggravating factors identified. Having regard to decisions of this Court in other wounding cases involving prolonged beatings, we are also satisfied that the sentencing starting point of three and a half years’ imprisonment was within the available range for this offending.^[5]

Insufficient credit for remorse?

[6] Mr Phelps submits that insufficient credit for remorse was given. The sentencing Judge noted that little remorse was evident. In particular, the Judge noted the lack of remorse indicated by Mr Poi’s failure to enter a guilty plea. An opportunity to plead guilty to the lesser charge on which he was eventually convicted had been given, but declined.^[6] No credit for remorse was given.
[7] We accept that the Judge might have made more of Mr Poi’s expression of regret and willingness both to pay reparation for medical expenses and lost income, and to participate in a restorative justice conference.^[7] In Hessell v R the Supreme Court confirmed that remorse deserving of discount need not be “exceptional”. ^[8] The sentencing Judge should look beyond a guilty plea: the absence of such a plea does not mean tangible evidence of genuine remorse — not self-pity — should not be credited.^[9]
[8] Some credit — five per cent or so — might have been given here. But the Judge also gave a generous 15 per cent discount for good character, well beyond the norm. This Court has frequently emphasised that it is the sum of the individual parts of a sentence that must broadly be correct. In this case the sum was correct.

New evidence meaning sentence manifestly excessive?

[9] The new evidence is of Mr Poi’s assault in prison and resultant long-term adverse medical condition. We have described it already at [1]. This new evidence was received without objection.^[10]
[10] Mr Phelps invites the Court to “intervene and allow a further reduction in the term of imprisonment” because of this deeply unfortunate post-sentencing event. The precise legal basis for the Court doing so, apart from acting mercifully, remained elusive in counsel’s submissions.^[11]
[11] We do not think it would be right to intervene in this manner, for three reasons. The first is that as s 250(2) of the Criminal Procedure Act 2011 makes clear, the role of this Court on a sentencing appeal is to correct error. Absent error, a sentence appeal must be dismissed.^[12]
[12] Secondly, the case relied on by Mr Poi, R v Luce, is an appellate response to error.^[13] In that case the sentencing Judge had lacked adequate information about Mr Luce’s adverse state of health. Unlike the present case, Mr Luce’s medical condition pre-existed sentencing.
[13] Thirdly, this Court has said previously that when an inmate’s health declines seriously after sentence, the appropriate response is likely to be administrative — for instance, under ss 25(1) or 41(1)(b) of the Parole Act 2002 or s 62(2)(a)(ii) of the Corrections Act 2004.^[14] In this case the Parole Board has provided just that response under s 25(1) of the Parole Act. This Court has no legitimate further function to perform on appeal.

Result

[14] The application for leave to adduce fresh evidence is granted.
[15] The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] R v Poi DC Napier CRI-2013-041-1506, 19 November 2014.

^[2] Parole Act 2002, s 25. Although probably academic, he is in theory recallable — for example in the event of further offending — up to his sentence expiry date of 18 November 2017.

^[3] Mr Poi filed his notice of appeal and instructed counsel several months prior to the attack, but is now in no state to be able to give counsel further instructions.

^[4] Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38].

^[5] Jones v R [2012] NZCA 162; Nuku v R, above n 4; Webber v R [2012] NZCA 594; and R v Wright [2014] NZCA 119.

^[6] Mr Poi was also charged with wounding with intent to cause grievous bodily harm. The jury acquitted him of that charge.

^[7] Recorded in his pre-sentence report.

^[8] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [63]–[64].

^[9] At [64].

^[10] See Criminal Procedure Act 2011, s 335(2)(c).

^[11] Mercy is itself a sentencing principle, where an otherwise appropriate sentence would be disproportionately severe: Sentencing Act 2002, s 8(h).

^[12] Criminal Procedure Act, s 250(3).

^[13] R v Luce [2007] NZCA 476.

^[14] R v Pomona [2007] NZCA 138 at [22]. See also R v Hart CA199/93, 17 November 1993; R v Tuoro CA44/94, 17 March 1994; and de Bruin v R [2007] NZCA 600 at [56].