Pakau v R [2016] NZCA 177 (5 May 2016)

Last Updated: 11 May 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA453/2015 [2016] NZCA 177
BETWEEN	PETER PAKAU Appellant
AND	THE QUEEN Respondent

Hearing:	7 April 2016
Court:	Wild, Clifford and Brewer JJ
Counsel:	P J Kaye for Appellant M A Corlett for Respondent
Judgment:	5 May 2016 at 11.30 am

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal is granted.

2. The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

[1] Peter Pakau, a former police officer, pleaded guilty to a total of 14 charges, nine involving corruption and dishonesty as a police officer and five the manufacture and supply of methamphetamine. Nine private citizens were charged along with Mr Pakau.
[2] Mr Pakau was sentenced by Andrews J in the High Court at Auckland to eight years and four months’ imprisonment.^[1] Mr Pakau now appeals that sentence as being manifestly excessive.
[3] Mr Pakau filed his notice of appeal some seven months out of time. He therefore requires an extension of time to appeal. The Crown did not oppose an extension of time and we grant one.

Facts

[4] Mr Pakau was sworn in as a police constable in February 2008. In 2011, having spent most of his career in general duties at the Henderson Police Station, Mr Pakau began working as a beat constable based at the New Lynn Police Station. He later joined a newlyestablished police squad, based at New Lynn, to focus on car crime in the Waitakere area. In 2012, that squad moved to the larger Henderson Police Station. Mr Pakau then began an association with two of his co-accused, Ms Melissa Brown and Mr Kaisa Ta’avale, affiliates of the Head Hunters gang.
[5] Throughout 2012 and 2013 Mr Pakau engaged in corruption and dishonesty offending, as well as serious methamphetamine offending. Mr Pakau committed his offending in the course of his duties as a sworn police officer. He often did so whilst he was on duty and wearing his police uniform. On a number of occasions he utilised marked police vehicles in connection with his offending.
[6] We summarise the charges to which Mr Pakau pleaded guilty and the circumstances that gave rise to those charges below.

(a) Receiving stolen property (x1)

[7] During a bail check at a private address, Mr Pakau noticed items of jewellery and an iPad. He returned with his co-accused Ms Brown to the address. Ms Brown took the jewellery and the iPad, and gave the iPad to Mr Pakau.

(b) Accessing a computer system for dishonest purposes (representative); corrupt use of official information (x2); accepting a bribe (x1); conspiracy to commit theft (x1)

[8] On nine separate occasions Mr Pakau accessed the police National Intelligence Application system (NIA) on behalf of Ms Brown and other associates for dishonest purposes. Mr Pakau obtained information about the bail status of gang affiliates, registration details of vehicles, addresses and other personal information about persons of interest to Ms Brown and her associates. He also obtained intelligence about gangs. The information obtained was used by Ms Brown and other associates for criminal purposes, including for “taxing”, the process by which a gang enforces its control over the criminal activities of others. Mr Pakau participated in some criminal activity with those associates, for example:

• He rang an auto repair shop that was repairing a stolen vehicle. He told them to release it to Ms Brown, knowing that she was not the legitimate owner. Ms Brown paid Mr Pakau $200 for doing so.
• Whilst on duty, Mr Pakau saw a vehicle he knew Ms Brown wished to obtain. He pulled the driver over without reason and instructed her to follow him to the police station. Mr Pakau’s intention was that, once the driver was released from the police station, an associate would follow the car so it could be stolen. In fact, the driver declined to follow Mr Pakau. Later Ms Brown told Mr Pakau she had located the vehicle. He picked her and a female associate up in his police patrol vehicle in an unsuccessful endeavour to locate the vehicle.

(c) Conspiracy to burgle (x1)

[9] Mr Pakau became aware police had located a large amount of cash at a private address. He told Ms Brown, who agreed to break into the property. The plan was subsequently abandoned.

(d) Conspiracy to pervert the course of justice (x1 representative; x1 specific)

[10] Mr Pakau dishonestly arranged for Ms Brown to be released from a sentence of home detention on three occasions. He conspired with her in a falsified bail application for her partner.

(e) Methamphetamine: manufacture (x1); supply (x3); and conspiracy to supply (x1)

[11] Mr Pakau was involved in methamphetamine offending with Ms Brown and a number of other associates, including a Mr Boag and a Mr Rei. With Ms Brown, Mr Pakau obtained an ounce of methamphetamine from Mr Boag and supplied it to an associate for $12,000. Mr Pakau and Ms Brown unsuccessfully sought to obtain methamphetamine from a number of associates. Mr Pakau and Ms Brown supplied Contac NT, a precursor substance containing pseudoephedrine, to Mr Rei, who subsequently manufactured two and a half ounces of methamphetamine. From a second manufacture, Mr Rei supplied Mr Pakau with two and a half ounces of methamphetamine. Mr Pakau supplied that methamphetamine to Mr Boag. Mr Boag had been meant to get only one and a half ounces. Mr Pakau retrieved one ounce and supplied that methamphetamine to another associate, Mr Holloway.

The sentencing decision

[12] Andrews J arrived at the cumulative sentence of eight years and four months’ imprisonment she imposed on Mr Pakau in the following way.
[13] Her Honour first sentenced Mr Pakau for his methamphetamine offending.^[2] The Judge took the lead charge as that of the manufacture of two and a half ounces. Recognising that Mr Pakau was not himself the cook, the Judge found that Mr Pakau — by supplying Contac NT — nevertheless played an essential role. Concluding that Mr Pakau’s offending fell into the low to middle end of band two of R v Fatu, she adopted a starting point of five years and nine months’ imprisonment.^[3] She added 12 months to that starting point on account of the three charges of supplying methamphetamine, and a further six months in respect of the charge of conspiring to supply methamphetamine. On that basis, she reached a starting point of seven years and three months’ imprisonment. Declining Mr Pakau any credit for previous good conduct, she allowed a total discount of one year and three months on account of time spent on electronically-monitored (EM) bail (three months), genuine remorse and rehabilitative prospects (six months) and the particular difficulties associated with a prison sentence (mental health and status as a police officer, six months). Finally, her Honour allowed a guilty plea discount of 15 per cent. The Judge considered that the timing of the pleas, and the overwhelming strength of the Crown case, counted against any greater discount. That made Mr Pakau’s end sentence for his methamphetamine offending five years and one month’s imprisonment.
[14] In sentencing Mr Pakau for his corruption offending, the Judge took the unlawful access to the NIA system, and the corrupt use of the information received, as the lead offending. On the basis that that offending was indistinguishable from the offending involved in the High Court sentencing decision in R v Sarah, the Judge adopted the same starting point: three and a half years’ imprisonment.^[4] The Judge added two years to that starting point for the rest of Mr Pakau’s corruption offending. From that starting point of five and a half years’ imprisonment, the Judge allowed nine months’ discount to take account (again) of time spent on EM bail and remorse, four months for the difficulties in serving a prison sentence and, again, 15 per cent in recognition of Mr Pakau’s guilty pleas. On that basis, the Judge arrived at an end sentence for the corruption offending of three years and nine months’ imprisonment.
[15] Taking account of totality, the Judge sentenced Mr Pakau to five years’ imprisonment for the methamphetamine offending, and three years and four months’ imprisonment, cumulative, for the corruption offending. In that way, her Honour allowed a totality discount of six months.

Appeal

[16] On appeal, Mr Kaye for Mr Pakau challenged:

• (a) The uplift of 18 months the Judge imposed on the five years and nine months starting point for manufacture by reference to the three charges of supply and the one of conspiracy to supply.
• (b) The Judge’s failure to provide an allowance for Mr Pakau’s previous good character.
• (c) The guilty plea discounts of 15 per cent, which Mr Kaye said should have been 20 per cent.

Analysis

[17] The method her Honour used to calculate Mr Pakau’s sentence was a little unorthodox. Separately recognising discounts of nine months for time spent on EM bail and for remorse on both the methamphetamine and corruption offending, and likewise separately discounting on account of the particular difficulty for Mr Pakau associated with a term of imprisonment (by six months on the methamphetamine charges and four months on the corruption charges) made the exercise a little difficult to follow. The Judge’s approach to considering and making an allowance for totality was also less than clear. But, as ever, the question for us is whether the end sentence of eight years and four months’ imprisonment, however arrived at, was manifestly excessive.
[18] We are satisfied that it was not.
[19] We do not think either of the starting points can be challenged.
[20] Nor do we think the Judge can be criticised for uplifting the accepted five years and nine months starting point for the lead methamphetamine offending to take account of the supply and conspiracy to supply charges. Mr Kaye characterised Mr Pakau’s methamphetamine offending, which all occurred over a relatively short period of time in late April and early May 2013, as, in effect, a single instance of offending. On that basis, on appeal the submission was, as it had been at the time of sentencing, that no uplift was necessary for the supply and conspiracy charges. We disagree. The methamphetamine Mr Pakau supplied was not the same methamphetamine he was convicted of manufacturing. Similarly, the conspiracy charge related to Mr Pakau and Ms Brown attempting, albeit unsuccessfully, to obtain methamphetamine before the events that led to the manufacturing charge.
[21] We agree with the Judge that, in the circumstances of Mr Pakau’s offending, a discount for previous good character would have been inappropriate. Mr Pakau was, before this offending, without doubt a person of good character. We recognise that this offending would appear to have been completely out of character. But it did comprise, as Mr Kaye acknowledged, a comprehensive and sustained fall from grace. It was Mr Pakau’s good character that, no doubt, helped him into the police force and put him in a position to commit these offences. Mr Pakau exploited his good character and the confirmation of that good character that his status as a police officer provided to commit the offences.
[22] Mr Kaye’s oral submission was that a 20 per cent discount should have been allowed for Mr Pakau’s guilty pleas. That challenge was based on the proposition that Mr Pakau had pleaded guilty following a reduction in the number of charges and in the amount of methamphetamine involved in the charge of manufacture. It is the case that the 14 charges to which Mr Pakau pleaded guilty replaced a total of 24 charges that had originally appeared in the Crown’s indictment. But nine of those 24 charges were particular charges of accessing a computer system for dishonest purposes prior to the amendment; they then became one representative charge, to which Mr Pakau pleaded guilty. The lower number of charges does not, therefore, reflect any great change in the criminality reflected by the charges. There may have been a change to the amount of methamphetamine the subject of the manufacturing charge. We were not able to verify that submission from the materials before us. Mr Kaye suggested that 10 ounces had originally been involved whereas Mr Pakau only pleaded guilty to the manufacture of two and a half ounces. For our part, and be that as it may, the Judge’s guilty plea discount reflects her assessment of the strength of the Crown case overall. We do not think that assessment can be challenged. As the Crown submitted, the Supreme Court’s approach to guilty plea discounts in Hessell v R recognises the significance of that factor for guilty plea discounts.^[5] Finally, and more significantly, any criticism of the discount for Mr Pakau’s guilty pleas has to be put in the context of the very generous discount (some 26 months in total) that the Judge allowed Mr Pakau on account of other personal factors.
[23] In that context and looking at the end sentence in the round, we are satisfied that it is not manifestly excessive. Mr Pakau’s corruption offending was particularly serious: he exploited his position as a police officer. If his corrupt accessing and use of information was not enough, the blatant corruption of using an official police visit to identify goods that his accomplice subsequently stole, and the unlawful virtual arrest of an innocent member of the public to facilitate the theft of her motor vehicle, compounds Mr Pakau’s criminality. If anything, in our view the Judge could be said to have taken a somewhat lenient approach to that aspect of the sentencing exercise.
[24] Mr Pakau’s appeal against his sentence is therefore dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Pakau [2014] NZHC 3020 at [78].

^[2] From [54].

^[3] R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA) at [43].

^[4] R v Sarah [2013] NZHC 959 at [37]: in fact the starting point in Sarah was five and a half years’ imprisonment, but Andrews J’s error here is to Mr Pakau’s advantage.

^[5] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [60].