Pabirowski v R [2020] NZCA 593 (25 November 2020)

Last Updated: 1 December 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA24/2020 [2020] NZCA 593

	BETWEEN	RAY STANLEY PABIROWSKI Appellant
	AND	THE QUEEN Respondent

Hearing:	2 November 2020
Court:	Miller, Brewer and Moore JJ
Counsel:	JAG Moroney and JPR Scott for Appellant MRL Davie for Respondent
Judgment:	25 November 2020 at 10.30am

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Brewer J)

Introduction

• [1] Mr Pabirowski appeals the sentence of four years and nine months’ imprisonment imposed on him by Judge Orchard on 21 November 2019.^[1] He submits the sentence is manifestly excessive and should have been in the range of three years and three months to three years and nine months’ imprisonment.
• [2] We must allow the appeal if we are satisfied that, for any reason, there is an error in Judge Orchard’s sentence and that a different sentence should be imposed.^[2]

Factual background

• [3] Mr Pabirowski was found guilty by a jury on one charge of causing grievous bodily harm with intent to cause grievous bodily harm.^[3] The maximum sentence is 14 years’ imprisonment.
• [4] We draw the facts of Mr Pabirowski’s offending from the Judge’s sentencing notes:

(a) On 14 November 2017, Mr Pabirowski was at a hotel in Northland. He had been asked to help out with security at a 21st birthday party being held there.

(b) The victim, Mr Wikitera, arrived at the hotel and Mr Pabirowski asked him for identification even though he was a man in his 50s. There was an undercurrent of tension as a result of that.

(c) Later in the evening there was an exchange between Mr Wikitera and Mr Pabirowski about the earlier request for identification. Mr Wikitera’s evidence was that Mr Pabirowski challenged him to go outside for a fight. The closed-circuit television footage showed Mr Pabirowski leaving momentarily and then returning having removed his jacket. Mr Wikitera and Mr Pabirowski then fought or struggled and other people became involved. The two were pulled apart and the fight or struggle ceased.

(d) Mr Wikitera went to the men’s lavatories and is shown leaving them by closed-circuit television footage. The Judge remarked that at that stage Mr Wikitera was “perfectly able to walk and to stand and seems to be okay”.^[4]

(e) The Judge’s description continues:

[7] ... Then the camera shows you, beginning from the other end of the corridor, charging him down essentially, and what you did was you knocked him through the swing doors which were almost outside the men’s lavatory into another section of the corridor. He went flat on his back. It is quite obvious that at that stage he was helpless, probably unconscious, but if not unconscious, certainly in no position to defend himself and very much affected by what had happened.

[8] Witnesses then describe you stomping on his head and I think at least in one instance throwing punches at his head. It was obvious from the evidence of the witnesses, particularly of the young woman whose birthday it was, that she was very shocked by what she saw and very fearful of the consequences of your assault on Mr Michael Wikitera.

(f) As a result of the attack, Mr Wikitera had a broken eye socket, a broken nose, and 12 broken ribs.

(g) The Judge went on to say:

[11] ... He had massive bruising around those injuries and a serious haematoma on the left side of his face. He said that his eye weeps constantly and he could not see, this is obviously in the past, that at the time it wept constantly and he could not see out of his left eye because it was completely closed over. He was in hospital for at least two weeks, when he was transferred to Kaitaia Hospital, and he was in there for another two weeks. Overall, he was in hospital for at least a month. He was unable to work for two months after the incident because of the injuries he received....

The Judge’s sentence

• [5] The Judge regarded the level of violence as being very serious rather than extreme. However, the Judge took as an aggravating factor that Mr Pabirowski is a very big man who could do real damage with his weight.
• [6] The Judge regarded Mr Pabirowski as “only too ready” to involve himself in violence even though he was at the hotel that night to defuse violence.^[5]
• [7] The Judge found there was an element of premeditation to the offending:

[25] I also formed the clear view that you were effectively waiting for Mr Michael Wikitera to exit that lavatory so that you could attack him again. I say that because you were at the other end of the corridor, and almost immediately after he emerged from the men’s, you charged him down. There was no attempt to engage with him, you simply pushed him forcefully or violently through those doors and onto his back.

• [8] The Judge said Mr Wikitera was lucky, given the circumstances, not to have suffered any lasting brain injury. The Judge considered it was extremely dangerous that Mr Pabirowski stomped on Mr Wikitera’s head and body when he was on the ground and helpless, given Mr Pabirowski’s size.
• [9] The Judge assessed the case as falling within band two of the tariff decision R v Taueki and adopted a starting point of five years’ imprisonment.^[6] The Judge noted Mr Pabirowski’s criminal convictions for violence (injuring with intent to injure (2003), common assault (2003), and male assaults female (2015)) but declined to uplift the starting point because of them.
• [10] The Judge declined to give a discount for remorse, commenting there had been no apology to the victim and that Mr Pabirowski defended the case on the basis he was not responsible for the injuries.
• [11] The Judge gave a discount of three months to take account of the restrictive bail conditions Mr Pabirowski had been on for about two years.
• [12] The end sentence was thus four years and nine months’ imprisonment.

Mr Pabirowski’s case on appeal

• [13] Mr Moroney for Mr Pabirowski submits the starting point of five years’ imprisonment was too high having regard to similar cases.
• [14] Mr Moroney submits the case falls within band one of Taueki (three to six years’ imprisonment) rather than into band two (five to 10 years’ imprisonment).
• [15] Mr Moroney submits, and we accept, that applying Taueki to offending does not involve simply identifying aggravating features mathematically. Any aggravating features identified must be assessed as to their seriousness and their relevance.
• [16] In this case, Mr Moroney identifies three aggravating features but submits they overlap considerably. The aggravating features are the attack to the head, Mr Wikitera’s vulnerability and the seriousness of his injuries.
• [17] Mr Moroney submits:
  18. Vulnerability and the attack being to the head overlap because Mr Wikitera’s vulnerability arose from being on the ground. That exposed his head to Mr Pabirowski. Mr Pabirowski was only able to attack Mr Wikitera’s head because it was on the ground. If he were standing, Mr Pabirowski would not have been able to kick him as he did.
  19. The seriousness of the injury, to some extent, is inherent in the charge. Mr Pabirowski was convicted of causing grievous bodily harm. However, to the extent that it is an aggravating feature beyond that, it overlaps with the attack being to the head. The injuries were serious in part because they were to that vulnerable area of Mr Wikitera’s person.
  20. Counsel submits that the offending did not involve extreme violence. Her Honour Judge Orchard made no error in finding that it did not.
• [18] In Mr Moroney’s submission, Mr Pabirowski’s case is most similar to the example of a street attack given in Taueki as engaging sentencing within band one.^[7]
• [19] Mr Moroney, diligently, referred us to five cases which he submitted are relevant comparators and which serve to support his submissions that the five year starting point was too high.^[8] We have considered them. All have unique features, as is to be expected. As this Court has held on a number of occasions, following the guidance in tariff judgments is an important way of ensuring consistency.^[9] It is better to be guided by tariff judgments and first principles, rather than seeking to compare the case under examination with other cases which will always have different factual backgrounds. We will assess Mr Pabirowski’s offending against the guidance given in Taueki.

Discussion

• [20] We consider aggravating features in this case to be:

(a) Mr Pabirowski is a very big man; much bigger than his victim.

(b) Mr Pabirowski was persistently aggressive towards his victim over the course of the period he was at the hotel. The Judge accepted there was no provocation from the victim.

(c) There was a clear element of premeditation. Mr Pabirowski waited in the corridor for Mr Wikitera to leave the lavatories. As soon as Mr Wikitera left the lavatories, Mr Pabirowski charged at him and knocked him to the ground.

(d) Mr Pabirowski attacked Mr Wikitera while he was on the ground, vulnerable and helpless.

(e) The force and nature of Mr Pabirowski’s attack were inherently very dangerous, and indeed life threatening. The witnesses described Mr Pabirowski “stomping” on Mr Wikitera’s head with very significant force. He also delivered kicks to Mr Wikitera’s body.

(f) The physical damage done was significant and the effects on Mr Wikitera were also significant. He was hospitalised for at least a month and was unable to work for two months after the attack.

• [21] In Taueki, the Court gave descriptions of bands of offending to give guidance to sentencing Judges “while preserving the very important discretionary element in sentencing”.^[10]
• [22] The Court recognised that any s 188(1) offending will be very serious. It will almost always:^[11]

... involve a high degree of criminality (and significant injury to the victim) which will require the imposition of a term of imprisonment. It will be only in exceptional cases that a starting point of less than three years’ imprisonment will be appropriate: for example, where the sentencing Judge considers the offending, while technically falling within s 188(1), involves culpability at a level which may have been better reflected in a lesser charge.

• [23] We note that in no way can the current case be characterised as one of the exceptional cases meriting a starting point of less than three years’ imprisonment. The issue is how far above three years is the appropriate starting point.
• [24] The starting point in the bands described in Taueki overlap. As noted above, band one is three to six years and band two is five to 10 years. Band one is appropriate for offending involving violence at the lower end of the range of s 188(1) offences. The Court said:^[12]

It is not an appropriate band for offences of extreme violence or violence which is actually life threatening.

• [25] Attacking the head is a feature of offending which contributes to the seriousness of the conduct and criminality involved. The Court said:^[13]

Thus, where a victim is subjected to a severe beating or kicking causing head injuries, the offender’s conduct will be treated similarly to offending involving the use of a weapon.

• [26] In our view, the combination of the aggravating features of premeditation, attacking the head and serious injury in the circumstances we have set out put this case at the lower end of band two. We agree with Crown counsel the offending is too serious for the middle of band one, which is where Mr Moroney would place it. This was not an impulsive attack similar to the street attack described in Taueki as an example of band one offending.^[14]
• [27] We disagree with Mr Moroney’s submissions that the aggravating factors overlap and that this reduces Mr Pabirowski’s culpability. To the contrary, Mr Pabirowski in effect ambushed Mr Wikitera, rendered him helpless on the ground and then attacked his head and his body. This was a very dangerous attack. The degree of violence Mr Pabirowski used in stomping on Mr Wikitera’s head was inherently life threatening. The injuries Mr Wikitera received were severe.
• [28] We have noted that the Judge did not uplift the starting point to take into account Mr Pabirowski’s record of criminal violence. The Judge considered that the five year starting point was sufficiently high that an uplift was not required. That was a conservative position to take.
• [29] The discount of three months to account for restrictive bail conditions was appropriate, and is not challenged.

Decision

• [30] The end sentence of four years and nine months’ imprisonment was not manifestly excessive. The Judge adopted a starting point which was within the range available to her and the discount of three months’ imprisonment to take account of restrictive bail conditions was appropriate.
• [31] The appeal is dismissed.

Solicitors:
Thode Utting, Auckland for Appellant
Crown Law Office, Wellington for Respondent

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^[1] R v Pabirowski [2019] NZDC 23473.

^[2] Criminal Procedure Act 2011, s 250.

^[3] Crimes Act 1961, s 188(1).

^[4] R v Pabirowski, above n 1, at [7].

^[5] At [23].

^[6] R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

^[7] At [37(a)].

^[8] Tahitangatatarei v R [2013] NZCA 293; Bennett v R [2012] NZCA 44; Ryan-Thoms v R [2013] NZCA 518; Karlytsky v R [2009] NZCA 230; and R v Tai [2010] NZCA 598.

^[9] Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [47]; and R v Taueki, above n 6, at [10].

^[10] R v Taueki, above n 6, at [17].

^[11] At [27].

^[12] At [36].

^[13] At [31(e)].

^[14] At [37].