Peauafi v Police [2014] NZHC 2537 (15 October 2014)

Last Updated: 4 January 2019

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-259 [2014] NZHC 2537

BETWEEN	FINAU PEAUAFI Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	14 October 2014
Appearances:	S Cullen for the Appellant L Mills for the Respondent
Judgment:	15 October 2014

JUDGMENT OF ELLIS J

This judgment was delivered by me on Wednesday 15 October 2014 at 4.15 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:...............................

Counsel/Solicitors:

S Cullen, Barrister, Auckland

L Mills, Meredith Connell, Auckland

PEAUAFI v NEW ZEALAND POLICE [2014] NZHC 2537 [15 October 2014]

[1] Mr Peauafi appeals against a sentence of two years and six months’ imprisonment imposed by Judge B A Gibson in the Auckland District Court1 on Mr Peauafi’s conviction on one count of robbery and one count of unlawfully taking a motor vehicle. Mr Peauafi was 18 years old at the time of the offending.

[2] The maximum penalty on the robbery charge is 10 years’ imprisonment. The maximum on the unlawful taking charge is seven years’ imprisonment.

[3] The facts of the matter were set out by Judge Gibson at paras [2]-[5] of his sentencing notes as follows:

[2] Mr Maamaloa, although older, took a slightly lesser role in the offending as is acknowledged by Mr Peauafi. The main offending, the robbery, involved an assault on Mayoral Drive on a person who was walking home, carrying a brown satchel at approximately 3.45 am in the morning. He was approached by the defendants, there were in fact three of them, the other defendant does not appear to have been apprehended, and shoved to the ground by Mr Peauafi. He was then punched twice in the face and he lost consciousness.

[3] The summary then indicates that both Mr Maamaloa and Mr Peauafi punched and kicked him to the head. They then decamped from the scene but were caught shortly thereafter and the brown satchel was recovered with all of its contents.

[4] The level of violence inflicted on the victim was very serious because he received a fractured jaw. Regrettably no victim impact statement is available, the victim has gone overseas, so the level of harm and personal injury can only be imagined but as I mentioned to counsel, this is but one further example of your thugs terrorising persons going about their business in the city and making the streets unsafe for everyone and there have been many instances of this sort of behaviour before the Courts.

[5] For Mr Peauafi there is an additional charge of unlawful taking of a motor vehicle and the facts of that matter are that a BMW motor vehicle was stolen from outside an address in Tauranga and Mr Peauafi was collected by an associate in Tauranga a day later and driven to Matamata. In the course of that journey, the defendant learned that the vehicle was stolen and he drove the vehicle himself from Matamata to Auckland. The vehicle was stopped at a police checkpoint at Onehunga and the defendant was allowed to proceed as the police were not at that time aware that the vehicle itself was a stolen vehicle. The vehicle was left at the Onehunga harbour wharf but the defendant took the keys with him and the vehicle has not yet been located. The victim of that offending has filed a victim impact statement and he notes that the vehicle keys were taken from his bedroom while he was asleep and although he has been compensated by insurance, he has suffered a considerable amount of inconvenience as a result of the vehicle being stolen.

¹ R v Simione Maamaloa Finau Peauafi DC Auckland CRI-2013-004-012584, 11 July 2014.

[4] In sentencing Mr Peauafi Judge Gibson noted that the starting point for the robbery charge was appropriately three years imprisonment. No issue was taken with that in this appeal.

[5] In terms of how the final (two years six months) sentence was arrived at Judge Gibson said:

[9] Beginning first with Mr Peauafi. He is the younger offender but not by much and he has the disadvantage for him, for sentencing purposes, of not being able to take any credit for previous known good character. He was the ringleader in the main offence of robbery and he has a separate charge of unlawful taking which has the aggravated feature attached to it of the property that had been stolen from the owner not being recovered.

[10] For him I would apply an uplift of four months to the sentence of three years’ imprisonment to take account of the unlawful taking of the motor vehicle, that leads to an end sentence of 40 months’ imprisonment before I begin discounting. Both counsel urge on me a discount for the youth of the two offenders. On the main charge of robbery, it seems to me that youth is a factor that I can take into account but I intend to take it into account in terms of the discount available under Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 for pleading guilty rather than giving a discrete discount on sentencing.

[11] The level of violence involved in this offending and the fact that it was a random, utterly unprovoked offence on a public street where a victim was attacked by a number of people, satisfy me that it would not be appropriate in this occasion to give a discrete discount for youth. As was noted in Mako, young offenders can inflict a considerable amount of damage on a victim in this type of street crime and they have on this occasion, a fractured jaw is no mean outcome and the degree of harm suffered by the victim, the assaults on him when he was on the ground and effectively defenceless, are all matters that satisfy me that it is not appropriate on this occasion to give a discrete discount for youth.

[12] Mr Peauafi is entitled to a discount for pleading guilty. Both the Crown and the defence say that ought to be 25 percent. I would not have given 25 percent as a discount in this matter in the ordinary course of events because there would have been no difficulty in proving the offences, either the unlawful taking or the robbery. The pleas came relatively late and although there was a plea to a lesser offence, the offending was certainly at the higher end of that lesser offence, a factor that I can take into account in terms of the Sentencing Act. Therefore, I would not ordinarily have given 25 percent but I will on this occasion give Mr Peauafi the benefit of a 25 percent discount to take into account his relative youth and accordingly the end sentence for him is two years and six months’ imprisonment on the robbery charge and four months’ imprisonment as a concurrent sentence on the unlawful taking charge.
...

The appeal

[6] The appeal is advanced on the grounds that Judge Gibson was wrong to:

(a) give no discount for remorse;

(b) give no discount that recognised Mr Peauafi’s rehabilitative prospects:

(c) uplift the starting point on the index (robbery) charge by four months in recognition of the unlawful taking charge.

Approach on appeal

[7] Mr Peauafi has a general right of appeal against conviction on sentence pursuant to s 244 of the Criminal Procedure Act 2011 (CPA). The Court’s powers on appeal are set out in s 250 of that Act, which provides:

250 First appeal court to determine appeal

(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2) The first appeal court must allow the appeal if satisfied that—

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

(3) The first appeal court must dismiss the appeal in any other case.

[8] The Court of Appeal has confirmed that s 250(2) of the CPA was not intended to change the approach taken to sentence appeals under the now repealed s 385(3) of the Crimes Act 1961 and s 121(3) of the Summary Proceedings Act 1957.2

[9] Accordingly the Court is required to proceed on the “error principle”. An appeal is “not generally a second shot at sentencing”.³

² Tutakangahau v R [2014] NZCA 279 at [26].

³ Polyanszky v R [2011] NZCA 4 at [17]- [18].

Discussion

[10] I accept that it would have been open to the Judge to give a discount for remorse and for rehabilitative prospects in light of the contents of the pre-sentence report. As Mr Mills said, another Judge may well have given such a discount but, in light of Mr Peauafi’s history, there was nonetheless information on the basis of which it was open for Judge Gibson to conclude that such a discount was inappropriate. The failure to apply a discount cannot be seen as a relevant error.

[11] I also agree with Mr Mills’ submission that the central inquiry must be whether the final sentence was manifestly excessive. It is not disputed that in Mr Peauafi’s case the robbery offence involved a number of aggravating features:

(a) Actual violence;

(b) An attack to the head;

(c) Multiple offenders;

(d) Serious harm to the victim (a fractured jaw).

[12] These features meant that denunciation and deterrence would necessarily be at the forefront of any sentencing judge’s mind.

[13] As far as the uplift for the unlawful taking offence is concerned, again it is not possible to discern a relevant error. In my view there were a number of means by which the Judge might have legitimately arrived at the same result:

(a) Adopting a starting point of three years on the robbery charge, with an uplift of four months for totality, with a four month concurrent sentence on the unlawful taking (which is what the Judge did);

(b) Not imposing an uplift for totality but imposing a cumulative sentence of four months’ imprisonment for the unlawful taking (which was distinct in time and circumstances from the robbery);
(c) Adopting a starting point for the index robbery offence of three years and four months imprisonment but imposing no uplift for totality.

[14] The real difficulty for Mr Peauafi is that whichever analysis is adopted, the end result cannot be said to be manifestly excessive.

[15] I accept that a final sentence of two years and six months’ imprisonment can be regarded as stern for a young person with no District Court convictions. But when regard is had to the statutory maximum of 10 years imprisonment and the circumstances of the index offending it is not possible to conclude that that sentence is outside the available range, despite the Court’s refusal to apply discrete discounts for youth and rehabilitative prospects.

[16] The appeal must be dismissed accordingly.

Rebecca Ellis J