Police v Potatau [2017] NZDC 15081 (26 June 2017)

Last Updated: 21 November 2017

EDITORIAL NOTE: SOME NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.

IN THE DISTRICT COURT AT MANUKAU

CRI-2016-092-009784 [2017] NZDC 15081

NEW ZEALAND POLICE

Prosecutor

v

GARY POTATAU

_Defendant

Hearing:	26 June 2017
Appearances:	Sergeant M Allen for the Prosecutor J Wiles for the Defendant
Judgment:	26 June 2017

_{NOTES OF JUDGE R J McILRAITH ON SENTENCING}

[1] Mr Potatau, my task this morning is to sentence you in relation to the charge of wounding with intent to cause grievous bodily harm.

[2] The facts are, of course, well known to you. In August last year, you were at a home address in Papatoetoe attending a family function. You arrived at [the victim’s] address early that morning. You confronted him about an incident that you understood had occurred at the family function. You walked up to him put your hand upon his throat began squeezing it with one hand then with the other, punching him in the face. You hit him on the nose. Apparently it began to bleed immediately. You shoved him to the ground and began stomping and kicking him about his head. You apparently said to him, “I am going to hurt you real bad boy, teach you a lesson” and kicked him

_{once more on the face. You told him “you were going to fuck him real bad” and}

NEW ZEALAND POLICE v GARY POTATAU [2017] NZDC 15081 [26 June 2017]

continued to kick him about the head. He managed to get on to his hands and knees while you were still kicking him. You then stomped on the back of his head a number of times. Having assaulted him in that way, you then left him lying at the bottom of the steps and walked off. He was taken to Middlemore Hospital where he received treatment for numerous lacerations about his head and face. He suffered multiple fractures to the bones in his face including his nasal bone, nasal septum and other bones. He suffered right and left eye socket fractures. He was unable to open his eyes for some days due to the swelling.

[3] You have been quite upfront about what occurred. You have admitted that you did assault him. You have said that you were surprised that he was hurt as badly as he was and you have explained, of course, why from your perspective, the attack occurred.

[4] I have the benefit this morning of what is known as a pre-sentence report where you were interviewed by the Department of Corrections to provide some information to me and provide a recommendation. In that report, and to your credit, they note that you admit doing the assault. You accept responsibility for your actions and you genuinely were remorseful and empathised with the victim. It explains of course, a bit more about what you understood to have occurred which, was a suggestion that the victim had indecently assaulted one of your relatives. You acknowledge to the report writer that in hindsight you could have handled the matter better by visiting the victim the following day in the company of the others to discuss what it was alleged he had done, and then of course, report the matter to the police.

[5] The report observes that you have engaged with the Man Alive programme in Panmure for anger management, and it talks to me also about the CAMHS alcohol programme that you have had an assessment for. The writer assesses your risk of re-offending as low given your prior history and the writer recommended an outcome of home detention with appropriate post-detention conditions and community work.

[6] The writer also notes that you are employed by [company name removed], and have been for approximately six years. You are clearly a very valued employee. I have also been provided by Mr Wiles this morning with a letter from a senior manager

at [company name removed] who speaks very positively about you. I have also had written submissions from both Mr Wiles and also the Crown Mr Potatau, in relation to your offending.

[7] You will have heard the discussion I have had with Mr Wiles. The process I have to go through is to set a start point in terms of the period of imprisonment that is applicable for your offending. The Crown has submitted that the start point is in the vicinity of seven to eight years’ imprisonment. Mr Wiles on your behalf submits that it is more in the vicinity of five to six years. He takes issue with a number of the factors identified by the Crown, and in particular, he focuses on the case law that the Crown has referred to and says that that case law is actually more supportive of his start point.

[8] What there is no doubt about though in terms of the aggravating features here when we look at the guideline case of R v Taueki1is that there was certainly a serious degree of violence involved in this attack. Whether it was extreme or moderate, there was undoubtedly prolonged violence. There is also clearly a situation here where there is a degree of premeditation. There is clearly the fact that it is an attack to the head. There is clearly of course serious injuries that result from it. One of the most challenging aspects of this is, of course, the fact that at the time you assaulted your victim, you were operating on an understanding that he may have indecently assaulted a member of your family. That, of course, does not, in any way excuse your actions but it is an interesting aspect from a sentencing perspective.

[9] The Crown quite properly points out that we must be very concerned about people acting in a vigilante style fashion. The right way to handle the situation was, of course, as you said to the report writer, which was to stand back, reflect about things and go to the police if you considered it appropriate. It, in no way excuses your behaviour but it does, I think as Mr Wiles observes, form part of the assessment of the

_{start point because in a sense, it is part of premeditation in what you did.}

1 R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372, (2005) 21 CRNZ 769

[10] I have looked very carefully at the cases of R v Hape2 and R v Finn3 that both the Crown and Mr Wiles focus on. I think one could quibble about the start point and whether five and a half years is actually the correct start point or whether it should be slightly higher. In my view, particularly when I take into account your state of mind at the time of the offending, and I look at the aggravating factors, I consider that five and a half years’ imprisonment is the start point.

[11] That is the start point that Mr Wiles submits is appropriate. It places your offending at the top of band 1 or the bottom of band 2 of that guideline case.

[12] The difficulty of course Mr Potatau for you though, is that given that start point is as high as it is, I have very limited ability to work the situation down to get to the point where home detention is even an option I can consider. There is no doubt genuine remorse on your part. Your personal circumstances are such that I do not doubt that you have taken genuine steps to address what went wrong here in terms of the programmes you have looked to participate in and, of course, the fact that you have good prospects in the community given your work. However, the simple reality is that the case law in my view does not permit me to do anymore than Mr Wiles advocates, that is to take off 20 percent from that start point.

[13] I am prepared to do that. That takes us down from 66 months to 52 months in prison. You are then entitled to the 25 percent discount for your guilty plea. I accept the point that it was made at as soon a time as was responsible. That takes us down to a period of 39 months which is three years three months’ imprisonment.

[14] So that is the outcome Mr Potatau. You will be sentenced to imprisonment for three years three months.

R J McIlraith

_{District Court Judge}

2 R v Hape DC Tauranga CRI-2013-070-000235

3 R v Finn CA427/06, 12, 25 June 2007