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Polaapau v R [2020] NZCA 227 (11 June 2020)

Last Updated: 17 June 2020

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA
CA602/2019
[2020] NZCA 227



BETWEEN

NUTIMEKI MAVEU POLAAPAU
Appellant


AND

THE QUEEN
Respondent

Hearing:

12 May 2020

Court:

Kós P, Venning and Mallon JJ

Counsel:

M F Tu’ilotolava for Appellant
M R L Davie for Respondent

Judgment:

11 June 2020 at 11 am


JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.
B The appeal is allowed.

  1. The sentence of six and a half years’ imprisonment is quashed.
  1. The appellant is sentenced to five and a half years’ imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

[1] Nutimeki Maveu Polaapau is 19 years old. On 10 October 2019, Judge T V Clark sentenced him to imprisonment for six and a half years for a range of violence and property offences that he had committed when he was 15, 16 and 17 years old.[1] He appeals the sentence on the grounds it is manifestly excessive.
[2] The appeal was filed four days out of time. The Crown accepts there is no prejudice. The application for an extension of time to appeal is granted.

The charges before the District Court

[3] The sentence imposed by Judge Clark in the District Court at Manukau was imposed in relation to charges laid in the District Court after Mr Polaapau turned 17 and also in relation to three charges transferred to that Court from the Youth Court. Judge Clark imposed the sentence of six and half years’ imprisonment on the following charges:[2]
[4] The Judge imposed concurrent terms of two years’ imprisonment on the following charges:[3]
[5] On a related charge of failing to stop on 27 April 2018, the Judge imposed a concurrent sentence of four months’ imprisonment and disqualified Mr Polaapau for six months.[4]
[6] The Judge convicted and discharged Mr Polaapau on all the other charges before the Court.[5]

Procedural background

[7] Mr Polaapau has been before the Youth Court on numerous occasions. For present purposes, the relevant background to the offending started in November 2016 when Mr Polaapau was residing at a Youth Justice facility. He and two others attacked the night shift attendants at the units and escaped.[6] Mr Polaapau was subsequently apprehended and returned to a different Youth Justice facility. He escaped again from that facility on 24 February 2017.
[8] While at large, Mr Polaapau and another person stole a motor vehicle and then, on 25 February 2017, Mr Polaapau and another co-offender committed an aggravated burglary.[7] Two days later, on 27 February 2017, Mr Polaapau and the same co‑offender committed an aggravated robbery.[8] Mr Polaapau was apprehended and placed back in another Youth Justice facility.
[9] Mr Polaapau came before Judge Eivers in the Youth Court on 22 August 2017. The Crown sought conviction and transfer to the District Court for sentencing pursuant to s 283(o) of the Oranga Tamariki Act 1989 (OT Act). The application was adjourned to 20 September 2017. Having regard to the reports then available to her, Judge Eivers considered the least restrictive outcome was for Mr Polaapau to remain in the Youth Court.[9] The Judge made a supervision with residence order under s 311 of the OT Act on all charges.
[10] On 5 December 2017, Mr Polaapau’s sentence was reviewed in accordance with s 311(2A)(a) of the OT Act. Having regard to a positive report, the Court granted Mr Polaapau early release from residence under s 314 of the OT Act. A six-month supervision order was imposed.
[11] Unfortunately, Mr Polaapau failed to comply with the conditions of supervision. Instead he re-offended. He was arrested on 16 February 2018 (some six weeks after turning 17) in relation to an aggravated burglary at a McDonalds outlet.[10] Mr Polaapau was charged in the District Court and remanded in adult custody. On 9 March 2018, he was granted electronically monitored (EM) bail and directed to comply with his supervision order. On 11 April 2018, he removed his EM bracelet and absconded.
[12] On 24 April 2018, a formal application for a declaration of non-compliance with the supervision order and redisposition was filed with the Court.
[13] On 27 April 2018, Mr Polaapau was involved in the theft of a motor vehicle and the driving offences which are referred to in more detail at [23]–[25] below.[11] He was apprehended on 27 April 2018 and returned to custody.
[14] The Crown renewed the application for transfer to the District Court for sentence. On 8 August 2018, Judge D J Harvey concluded that Mr Polaapau should be convicted on the outstanding charges and transferred to the District Court for sentence pursuant to s 283(o) of the OT Act.[12]
[15] There was a delay in the sentencing process in the District Court. Judge Clark noted the delay was largely due to the adjournments required whilst a s 27 report under the Sentencing Act 2002 was prepared.

Details of the relevant offending

Aggravated wounding

[16] In November 2016 (when aged 15), Mr Polaapau was residing at a Youth Justice facility with PM and TP. The complainants, Mr Teaonui and Mr Bostock, were working as night shift attendants in the unit. At about 11.45 pm on 17 November 2016, Mr Teaonui went to visit PM to provide him with Panadol. Without warning, PM grabbed Mr Teaonui’s radio set and pushed him away. Mr Teaonui fell backwards, hit his head on the door and momentarily lost consciousness. At that stage, TP joined in and attacked Mr Bostock, punching him multiple times to the head, causing him to fall to the ground. TP continued the attack by stomping on Mr Bostock’s head. In the meantime, PM punched Mr Teaonui and stomped on his head a number of times while he was on the ground. At this point, Mr Polaapau came out of his room and joined in by kicking Mr Teaonui to his body. Mr Polaapau and the other two then escaped. In passing Mr Bostock, Mr Polaapau kicked him as he lay on the ground. Both complainants required hospital treatment for their injuries.
[17] Mr Polaapau and his co-offenders were located two days later after committing a burglary at an elderly woman’s home. Mr Polaapau was then returned to another Youth Justice facility. On 24 February 2017, Mr Polaapau and an associate escaped from that facility.

Aggravated burglary

[18] Following their escape on 24 February 2017, Mr Polaapau and an associate stole a car. At about 5 pm on 25 February 2017, Mr Polaapau and two associates armed themselves with a metal object — approximately 20 cm in length — and knives, and broke into a property in Papatoetoe. The owner, Mr Aiken, an 85-year-old retired man, was at home alone, cooking his dinner. Mr Polaapau went to the rear of Mr Aiken’s home, confronted him and demanded money. Mr Polaapau then physically attacked Mr Aiken, grasping him around the neck. Mr Polaapau threatened to kill Mr Aiken and pushed him to the floor. Mr Polaapau’s associates stole an assorted number of coins and medals that Mr Aiken had collected over a number of years, and also took a bank card. While Mr Polaapau was fleeing the scene he was confronted by a concerned neighbour. The neighbour had heard sounds of violence from within the house and had called the police. She was on the phone to the police when Mr Polaapau left the property. When Mr Polaapau noticed her outside the property on her phone he kicked her in the leg to facilitate his escape from the scene.
[19] Mr Aiken received injuries to his neck, shoulders and arms. The neighbour received minor bruising to her leg.

Aggravated robbery

[20] On 27 February 2017, Mr Polaapau, together with three others, drove to the Handy Store in Papatoetoe. Mr Polaapau and one of his co-accused armed themselves with a spanner, a crowbar and a hammer. They then carried out an aggravated robbery at the Handy Store. Mr Polaapau threatened the owner of the shop with the hammer and ordered him to the ground. Mr Polaapau and his companion stole cigarettes and cash to a value of $12,000.
[21] In the course of the robbery, Mr Polaapau also threatened a member of the public who had come into the shop. Mr Polaapau and his co-accused were located by the Police shortly after and placed in custody. He was subsequently dealt with by Judge Eivers as noted at [9] above.

Aggravated burglary

[22] At around 2.15 am on 15 February 2018 and while subject to the supervision order, Mr Polaapau and four co-offenders went to a McDonald’s restaurant on Ormiston Road in Flat Bush. Their faces were covered by clothing. Two of them were carrying car jacks, which they initially threw at a window in an unsuccessful attempt to gain entry. They continued their attempt to break the window by kicking it and hitting it with the car jacks. The staff inside activated the restaurant’s panic alarm. One of Mr Polaapau’s co-offenders then threw one of the car jacks at a window a second time and succeeded in smashing it. Mr Polaapau and the others entered. One of the offenders was armed with a tyre iron and another with a thin metal rod. Another offender picked up a broom. The offenders unsuccessfully tried to break into the drive‑through till. Instead, they stole a black backpack from the staffroom. The backpack contained a wallet, cap, and set of keys. Mr Polaapau was arrested shortly afterwards. He was subsequently granted EM bail.

Unlawful interference with transport, aggravated injury and failing to stop

[23] After cutting off his EM bracelet, Mr Polaapau engaged in further offending. On 27 April 2018, Mr Polaapau was driving a stolen car with a co-offender on Western Springs Road, Auckland. Mr Polaapau failed to stop when signalled to do so by a police car. The police initiated a pursuit which lasted approximately one hour. At times during the pursuit, Mr Polaapau drove on the wrong side of the road at speeds of up to 150 km per hour. To apprehend Mr Polaapau, the police deployed road spikes at an on-ramp. Mr Polaapau veered sharply to avoid them and also sped up in an attempt to run over the police officer who had deployed them, Constable Salmond. Constable Salmond jumped out of the way but was struck a glancing blow by the car driven by Mr Polaapau, resulting in scrapes on his right elbow. His radio was also rendered inoperable. As he left the scene, Mr Polaapau executed a U-turn in an attempt to again run over the Constable.
[24] As he was running out of petrol in the stolen car, Mr Polaapau then tried to steal a van driving on the motorway. He drove into the path of the van, forcing it to stop. His co-offender approached the van armed with a wheel brace which he brandished at the driver. He demanded the driver get out of his vehicle, threatening to hit him with the wheel brace.
[25] The police arrived at the scene and arrested Mr Polaapau’s co-offender. Meanwhile, Mr Polaapau drove away down the incorrect side of the motorway at speed before exiting an on-ramp where the police were able to successfully deploy road spikes and stop the car he was driving. After a short foot chase, the police caught and arrested Mr Polaapau.

The structure of the District Court sentence

[26] Judge Clark took the unlawful interference with transport charge as the lead offence.[13] She fixed a starting point of five years for that offence.[14] The Judge then uplifted that by two years to take account of the related offending, namely the unlawful use of the car, the aggravated injury of the police officer and the failure to stop for the police.[15] Judge Clark then added a further two years for the aggravated burglary at McDonalds to arrive at a combined starting point for the District Court offending of nine years’ imprisonment.[16]
[27] The Judge then applied a further uplift of four years to take into account the Youth Court charges which brought her to an adjusted final starting point of 13 years’ imprisonment.[17]
[28] From that starting point, the Judge applied a discount of 25 per cent for the appellant’s personal circumstances and 25 per cent for his guilty pleas.[18] The combined 50 per cent discount led to the final effective sentence of six and a half years’ imprisonment.[19]

The grounds of appeal

[29] Ms Tu’ilotolava submitted that the overall starting point of 13 years with the resultant six and a half years’ imprisonment was manifestly excessive and a crushing sentence on Mr Polaapau. She submitted the sentencing Judge fell into error by giving inadequate consideration to:

Mr Polaapau’s personal circumstances

[30] We do not agree the Judge gave inadequate consideration to Mr Polaapau’s personal history, his characteristics and social circumstances. The Judge had before her two pre-sentence reports and was aware of the earlier report for the purposes of the OT Act. She also had the s 27 report. The Judge noted:[20]

[125] ... I am well aware of your background in terms of your family and upbringing. One of the things that struck me, Mr Polaapau, with regard to your family was that in fact you came from a loving family. Certainly there was disruption when there was a separation between your parents but, although you seem to express the view that you had been abandoned, I do not agree that that is what happened to you. I am making specific reference to the fact that you were sent to live in Tonga for a period of time. As I understand it, you made contact with your father and you were brought back to New Zealand to live with him in Opotiki. It was once you were living in Opotiki that things changed for you. That is where, it seems, your offending lifestyle took root, but I do not consider that you have been someone who was unloved or uncared for.

[126] What I consider has happened here is that you yourself, at a very young age, chose to enter into an offending lifestyle and you have embraced that offending lifestyle with some relish. When I looked at the s 27 cultural report, particularly paragraph 2.46, you were asked to describe two distinct periods of your upbringing, that is from 2001 to 2012 and then from 2013 onwards. With regard to the earlier timeframe you said that your upbringing was loving, you were well looked after, it was structured and good and that is when your life was structured and it was stable. When describing 2013 onwards you said, “It was just fucked, all over the place and messy. It was a hard life then because I was doing my own thing and it wasn’t easy. I wouldn’t listen.”

[127] I take that comment, Mr Polaapau, with regard to what happened with you from 2013 onward, as an acknowledgement from you that although you had a stable environment around you, and this was when you were living with your father in Opotiki, you did not listen. You were doing your own thing. You made those choices. Now, I accept that you made those choices as a young man, probably not appreciating the full consequences of your behaviour, but really what I am trying to outline for you, Mr Polaapau, is that I do not consider that you fall into the category of someone who has been grossly disadvantaged or grossly deprived in terms of your history and your upbringing.

[128] On the contrary, I consider that you had a good family upbringing, albeit disjointed from time to time, and that you have made your own poor choices with regard to who you will associate with, the activity that you will be associated with and so on. I know that from the defence perspective, a significant discount to take into consideration the matters contained in the s 27 report is sought, however, I simply do not consider that the type of discount contended for is appropriate in your circumstances.

[31] We agree with the Judge’s assessment of Mr Polaapau’s personal circumstances. He was neither grossly disadvantaged nor deprived in terms of his background and upbringing.
[32] In fact, the Judge’s allowance of 25 per cent for Mr Polaapau’s youth and personal circumstances and 25 per cent for the guilty plea might in both instances be regarded as generous. In terms of the full discount for the guilty plea, Mr Polaapau was caught at the scene in relation to the driving offences. There was also strong forensic evidence in relation to the other Youth Court offending.
[33] Next, while Mr Polaapau was entitled to consideration for his youth, the offending was not a one-off case of a youthful escapade. Mr Polaapau was sentenced for a series of serious repeated offences which escalated in seriousness over a period of time. The offending involved violence committed by Mr Polaapau in the company of a number of different people. As this Court noted in Pouwhare v R:[21]

[83] In the end, a Judge sentencing a young person under the Sentencing Act must always weigh the young person’s age and the reasons why he or she offended, against the seriousness of his or her offending and prospects of rehabilitation. Sometimes the young person’s age will be a mitigating factor of high, perhaps decisive, significance not to be circumscribed by any fixed outer percentage. Equally, there can be no warrant for saying that youth, of itself, must always prevail as the paramount value on sentence, or that youth alone can justify radically reducing the sentence which would otherwise be proper.

...

[96] ... the fact [that] an offender is a young person can sometimes be given radical effect on sentence, unconstrained by any normative percentage, even where offending is serious. In other cases that is not possible. The young age of the offender cannot be accorded presumptive, let alone paramount, weight. The objective seriousness of the offending, the young person’s part in it, anything aggravating and otherwise mitigating must also be weighed. The analysis Mako calls for is always indispensable.

The engagement by Mr Polaapau with the Youth Court order

[34] Ms Tu’ilotolava submitted Judge Clark should have given credit for Mr Polaapau’s engagement with the Youth Court order.
[35] We do not consider that there is anything in this point either. While there was a positive report under the OT Act, as noted there was substantial reoffending by Mr Polaapau following his early release on supervision. He failed to comply with the conditions of supervision. Further, after being granted EM bail in the District Court and directed to comply with the supervision order, he cut off his EM bracelet and then engaged in serious reoffending. In the circumstances, the earlier limited positive engagement with the residence order in the Youth Court can count for little.

The totality of the offending

[36] Ms Tu’ilotolava’s main submission was that the uplift of four years for the resentencing of the Youth Court offending was excessive. Mr Polaapau had completed the first part of the order related to that (and the other Youth Court offending) but had then failed to complete the supervision.
[37] Ms Tu’ilotolava made the point Mr Polaapau had been in Youth Court custody from 27 February 2017 following his arrest for the Handy Store aggravated robbery.
[38] In response, Mr Davie noted that the time Mr Polaapau was in Youth Court custody and subject to the residence order could not be taken account of in fixing the ultimate penalty. Mr Polaapau was in “pre-sentence detention” in terms of s 82 of the Sentencing Act.[22]
[39] However, the issue still remains whether the four-year uplift was justified for the Youth Court offending.
[40] In relation to that, the following points are relevant. In relation to one of the charges at least, the attack on the Youth Justice facility attendants which led to the aggravated wounding charge, Mr Polaapau’s role was very limited and he was not responsible for the serious injuries inflicted on the victims.
[41] We accept that when setting the four year uplift the Judge took into account that Mr Polaapau had previously been sentenced in the Youth Court. This was why she did not take this offending as the lead offending. We also accept that once offending is transferred to the District Court for sentencing, materially different sentencing outcomes can follow. Nevertheless, we consider a four year uplift was very stern relative to the order of six months’ supervision with residence originally imposed for that offending.
[42] Next, while Judge Clark referred to totality at stages of her sentencing notes, she did not do so after she had arrived at the adjusted final starting point of 13 years’ imprisonment. It was important to consider totality at that stage, particularly having regard to the offending from the Youth Court which was committed over a relatively short period of four months when Mr Polaapau was aged 15 and, in relation to the offending in February 2017, when he had just turned 16.
[43] We note that in his decision on the application for transfer to the District Court and after noting the Crown submission that an adjusted final starting point of around 13 years’ imprisonment would be appropriate, Judge Harvey noted: “Of course the principle of totality would have to be taken into account”.[23]
[44] We consider Judge Clark fell into error by not standing back and assessing the issue of totality overall once she had structured the adjusted final starting point for the sentence. We consider that, having regard to totality at that stage and taking into account the length of time that had passed since the offending, an overall starting point of no more than 11 years was appropriate.
[45] Applying the 50 per cent discount to that overall starting point leads to an end sentence of five and a half years’ imprisonment.
[46] For those reasons, we accept Ms Tu’ilotolava’s submission that the end sentence imposed was manifestly excessive, particularly having regard to Mr Polaapau’s age.

Result

[47] The appeal is allowed. The sentence of six and a half years’ imprisonment is quashed. The appellant is sentenced to five and a half years’ imprisonment.






Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Polaapau [2019] NZDC 20333.

[2] At [131].

[3] At [132].

[4] At [132].

[5] At [141].

[6] The aggravated wounding charge at [3(a)].

[7] The aggravated burglary charge at [3(b)].

[8] The aggravated robbery charge at [3(c)].

[9] Police v NMP [2017] NZYC 631.

[10] The aggravated burglary charge at [3(d)].

[11] The unlawful interference with transport and associated charges from 27 April 2018.

[12] Police v SY [2018] NZYC 463.

[13] R v Polaapau, above n 1, at [29].

[14] At [48].

[15] At [50].

[16] At [67].

[17] At [122]–[123].

[18] At [129]–[130].

[19] At [130].

[20] R v Polaapau, above n 1.

[21] Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868.

[22] Section 82 of the Sentencing Act provides that a sentencing court must not take into account time on “pre-sentence detention” as defined in s 91 of the Parole Act 2002 in determining the length of any sentence of imprisonment to be imposed. Taking pre-sentence detention into account would lead to double counting because s 90(1) of the Parole Act provides that pre-sentence detention counts as time served for the purpose of calculating the offender’s non-parole period, parole eligibility date, and statutory release date.

[23] Police v SY, above n 12, at [50].

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