POMARE v R [2017] NZCA 155

POMARE v R [2017] NZCA 155 [3 May 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA328/2016[2017] NZCA 155BETWEEN ELIAS POMAREAppellantAND THE QUEENRespondentHearing: 6 April 2017Court: Randerson, Clifford and Whata JJCounsel: L J Postlewaight for AppellantE J Hoskin for RespondentJudgment: 3 May 2017 at 10.30amJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Whata J)[1] Mr Pomare was sentenced to life imprisonment with a minimum period of imprisonment (MPI) of twelve years for murder.1 Mr Pomare appeals this sentence, contending the sentencing Judge failed to give sufficient discount for his diagnosis of foetal alcohol syndrome disorder (FASD) and for remorse.1 R v Pomare [2016] NZHC 1346.Background[2] Late in the evening of 4 October 2014 Mr Pomare and his friend, Mr Perkinson, went uninvited to Mr Griffin's home. Mr Griffin was 56 and sufferedfrom physical impairment: his left arm was paralysed and he could not bend his left leg. He was alone at the time, doing some work on the exterior of his property. Mr Pomare struck him to the head with a weapon on at least two occasions, fracturing his skull. Mr Griffin died as a result of these injuries. Mr Pomare and Mr Perkinson then spray-painted the walls of the house and ransacked the property, taking two pushbikes and a laptop computer.Sentencing indication[3] On the first day of trial, 13 April 2016, Mr Pomare sought a sentencing indication. In fixing the indication, Wylie J determined that s 104 of the Sentencing Act 2002 (the Act) was engaged, having regard to the fact that the murder involved the following s 104 aggravating features:(a) An unlawful entry into and unlawful presence in the victim's home;(b) A high level of brutality and callousness; and(c) Victim vulnerability, because of his age and physical disability.[4] Turning to mitigating factors, the Judge concluded that given his age (16 atthe time of offending), Mr Pomare's culpability was lower than it would have been ifhe was a mature adult. He also concluded that a 17-year minimum could have a crushing effect on him and that there was still some prospect of rehabilitation. This provided the basis for a minimum period of imprisonment of 14 years. A further discount of one year, or seven and a half per cent, would be applied if Mr Pomare pleaded guilty, resulting in an indicative MPI of 13 years.[5] At the time, a report by Dr Valerie McGinn on Mr Pomare's FASD had beenprepared but it was not before Wylie J because the Crown had challenged its admissibility.Guilty plea[6] Mr Pomare subsequently entered a guilty plea and Wylie J made orders for a Provision of Advice to the Court Report (PAC Report) and a psychological report examining, among other things, whether Mr Pomare suffered from FASD and whether that affected his culpability or meant a lengthy term of imprisonment would be unduly harsh.Sentencing[7] Mr Pomare was sentenced on 17 June 2016 based on an agreed statement of facts. Wylie J referred to the PAC Report, Mr Pomare's criminal record, the victimimpact statements, two reports from Dr McGinn, and a psychological report by Dr Joseph Sakdalan and Dr Michael Easden which he had commissioned. The Judge confirmed that life imprisonment would not be unjust and that s 104 of the Act was engaged. He then set about to fix a MPI.[8] Mr Pomare's youth and psychological condition feature prominently in thesentencing notes. The Judge repeated the observations made in the sentencing indication about the significance of youth and the potentially crushing effect of a 17-year MPI.[9] Wylie J then gave detailed consideration to the report of Dr Sakdalan and Dr Easden, emphasising the following observations:(a) Mr Pomare suffers from FASD but has been misdiagnosed until recently;(b) Mr Pomare manifests features of impulsivity, poor problem solving and an inability to learn from prior mistakes;(c) The report did not draw a direct link between Mr Pomare's offending and his condition, but FASD generally increased Mr Pomare'svulnerability to impulsive criminal behaviour, sensitivity to drugs and alcohol, and propensity to misuse them; and(d) There is nothing to suggest that prison would be unduly harsh for Mr Pomare.[10] The Judge acknowledged that these factors, in conjunction with Dr McGinn'sreports, suggest Mr Pomare's culpability is reduced and that his ability to control hisimpulsivity is compromised.[11] But Wylie J did not accept that Mr Pomare had shown any real remorse, aswas suggested in Dr McGinn's second report, noting that each time he was spoken to about the offending he offered a different explanation. He accepted the opinion of the probation officer in the PAC Report that Mr Pomare had not yet demonstrated full comprehension of his actions or the wider impact of his offending.[12] Wylie J concluded, having conducted an extensive review of a number of authorities involving young offenders and considered the particular circumstances of Mr Pomare and his offending, a MPI of 17 years would be unjust. Taking intoaccount Mr Pomare's youth and psychological condition, the Judge found a MPI of 13 years would be appropriate. A further discount of one year for guilty plea was added to this, resulting in the imposition of a MPI of 12 years.Appellant's argument[13] Ms Postlewaight submits that FASD-induced brain damage has been recognised in many common law jurisdictions as a strong mitigating factor in sentencing,2 and in the present case directly impacts on Mr Pomare's offending bymaterially diminishing his culpability. She submits it explains his apparent callousness, lack of remorse, late guilty plea and increases his vulnerability to negative effects of a lengthy term of imprisonment. In light of all these factors, Ms Postlewaight submits that twelve years is a significantly long term of imprisonment for an offender with Mr Pomare's traits.2 Citing P (CA479/2015) v R [2016] NZCA 128, R v Charlie [2012] YKTC 5 and LCM v Western Australia [2016] WASCA 164.Respondent's submissions[14] Ms Hoskin submits, in short, that a 12-year MPI is not manifestly excessive given:(a) The Judge took into account all relevant mitigating factors, includingMr Pomare's reduced culpability in light of his FASD;(b) The offending warranted a significant MPI given its brutality, the vulnerability of the victim and the callous disregard shown for him;(c) The weight to be given to the competing considerations and the outcome reached were well within the discretion of the Judge and accord with other comparable decisions of this Court;3(d) Dr McGinn's assessment of the effect of FASD on Mr Pomare at thetime of offending is contested, because the Crown disagrees with her characterisation of the scenario as a complex situation in which Mr Pomare was overloaded; and(e) A significant factor in the offending is Mr Pomare's impulsivity,exacerbated by the effects of methamphetamine and alcohol, but the sentencing Judge took these matters into account, together with his youth.[15] On the issue of remorse, Ms Hoskin submits that a Judge's assessment of remorse is quintessentially a question for the sentencing Judge, and that Wylie J'sassessment was soundly based on a consideration of the relevant reports as well as his observations of Mr Pomare at trial.[16] Ms Hoskin submits that Wylie J's eventual one-year discount for a late guilty plea was generous, and to the extent that his plea showed remorse, the discount took this into account. Finally, she adds that the timing of the appellant's guilty plea andstrength of the prosecution case are relevant factors in assessing the weight to be3 Citing Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.given to the guilty plea. Both were appropriately considered and contributed to the final outcome.The effect of FASD and youth[17] A uniform picture emerges from the four medical reports produced for sentencing: two by Dr McGinn, a report by Dr Zoe McLaren, and the joint report of Dr Sakdalan and Dr Easden.[18] Mr Pomare's background is marked by his mother's alcohol abuse duringpregnancy and ongoing behavioural problems throughout childhood and into adolescence, including drug abuse. Given this developmental history, Dr McGinnnotes in her 14 January 2016 neuropsychological assessment that Mr Pomare's life experiences "read like a text book case of the difficult life course known toaccompany FASD disability". Formal testing confirmed that:(a) Mr Pomare suffers from significant brain dysfunction as a result of heavy prenatal alcohol exposure and fulfils the diagnostic criteria for FASD. In particular, he has deficits across a number of brain domains including executive functioning, resulting in impaired organisational skills, regulatory control and literal thinking, structure dependence, and mild cognitive rigidity;(b) He also suffers from ADHD;(c) As well as primary brain damage, he has experienced a full range of secondary disabilities, including school failure, substance abuse, running into trouble with the law and being victimised as a consequence of his undiagnosed and untreated FASD. These resulting difficulties have been severe, pervasive and lifelong; and(d) He does not have an intellectual disability, but his IQ of 78 puts him in the borderline range.[19] In terms of the potential effect of FASD, the expert reports broadly coalesce in concluding that young people with FASD are markedly suggestible, easy to manipulate, yet tend to be egocentric and unable to appreciate other views. These factors often explain why FASD offenders are described as lacking remorse, when in fact they have neurological features that prevent this type of higher order thinking.[20] In Mr Pomare's case, while he knows right from wrong, in complexsituations he can be overloaded and act on impulse, he may suffer from emotional dysregulation, and has a very low tolerance for stress.[21] For sentencing purposes, Dr McGinn's second report of 10 June 2016provides the most significant insight into the effect of FASD on Mr Pomare. She observes:(a) Mr Pomare's late guilty plea and slowness to acknowledge his actionsmay have been influenced by his FASD;(b) His FASD reduces his capacity to make decisions and he may try to avoid situations that are stressful; and(c) Rather than indicating a callousness or lack of remorse, persons with FASD may take more time to fully process a complex situation like the circumstances of their offending and their role it.[22] Dr McGinn also says that Mr Pomare has "expressed a genuine sorrow and heartfelt regret for his causing the death" of the victim. She also believes that "there is a direct link between [Mr Pomare's] FASD and accompanying ADHD and theactions he took" that led to the victim's death. She states:In the complex decision making situation [Mr Pomare] found himself in, where Mr Griffin was pouring concrete late at night in his yard and holding a shovel, he likely acted impulsively and without forethought in picking up a hammer that was at hand and striking Mr Griffin on the head. His impulsivity which is part of his brain based disability was no doubt magnified by his use of P earlier in the evening. In my opinion, his impaired reasoning powers meant that he had significantly reduced capacity at that time to understand cause and effect and the likely impact of his actions on Mr Griffin. [Mr Pomare] is now aware that he misinterpreted the situationbut at that time and taking into account his FASD it is plausible that he considered himself at risk. In my opinion, FASD gives [Mr Pomare] a significantly reduced window of opportunity to stop and reason through before acting on impulse.[23] Dr McGinn also considers that "prison is a harsher place for a person with a disability" and that Mr Pomare "is not good at judging situations and mayrespond in an unpredictable way that might put him at increased risk ofvictimisation". She says prison will be more crushing on him than it would be on other young offenders without a neurodisability, and that he needs a high level of care and treatment. In her view, Mr Pomare is amenable to treatment now that he has been diagnosed with FASD. She posits that Mr Pomare does take responsibility for the consequences of his actions and that there are good rehabilitative prospects for him despite his FASD. She says that persons with FASD are not inherently dangerous.Should a greater discount have been given?[24] We consider it was available to the Judge to provide a larger combineddiscount for youth and Mr Pomare's psychological condition given the expert opinion that Mr Pomare's offending was linked to his FASD and that a lengthy termof imprisonment would have a crushing effect on him. We think a combined discount of 30 per cent would not have been unreasonable in the circumstances. This is comparable to the 33 per cent discount given by this Court in Edri v R (notcited by Wylie J) for Mr Edri's youth and FASD.4[25] In Edri v R the Court referred to a report from Dr McGinn who had madevery similar observations about the effect of FASD on Mr Edri's offending. TheCourt observed that:[17] Although any close correlation between the nature of the mental illness and the extent of discount is often difficult to discern, predictably the relative severity of the mental illness suffered by an offender, and the closeness of the causal link between the illness and the offending, are relevant considerations in identifying an appropriate discount for mental illness.4 Edri v R [2013] NZCA 264.[26] Referring to the leading authority on mental health discounts, E (CA689/10) v R,5 the Court considered a discrete discount for Mr Edri's FASD in the range of 15 to20 per cent was appropriate.6 In terms of youth (Mr Edri was 17 at the time of the offending), the Court concluded that given the unusual extent of the overlap betweenMr Edri's youth at the time of the offending and the particularly case-specific assessment of the impact of his mental disability, the preferable course was to assess the mitigating factors together, resulting in a combined discount of 33 per cent.7[27] We also consider the Judge erred in relation to his assessment of remorse. AsDr McGinn explained, Mr Pomare's apparent lack of acknowledgement of hisoffending was causally linked to his FASD. She also observed that he was in fact highly remorseful. While ordinarily the assessment of remorse is for the sentencing judge, we have no reason to doubt the validity of her assessment on a matter, in the circumstances of the case, appropriate for expert evaluation. To the extent that heropinion differs from the probation officer's, we consider she was better placed, given her expertise and knowledge of Mr Pomare's condition, to evaluate whether hisexpression of remorse was genuine.Overall assessment[28] Nevertheless, we are not prepared to interfere with the MPI because we are not satisfied that a different sentence should be imposed.8 The objective seriousness of the offending must be considered.9 This was a brutal and callous murder for the purpose of s 104 of the Act, also involving a particularly vulnerable victim and aspects of unlawful entry into a property. An initial starting point for offending of this kind by a healthy adult could have been as high as 19 years. In Churchward v R,for example, a similar (though not identical) murder attracted an initial start point of 19 years.10 Applying a 35 per cent discount for mental health, youth, and remorse5 E (CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411.6 Edri v R, above n 4, at [18].7 At [24].8 Criminal Procedure Act 2011, s 250(2). In accordance with Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27], [33] and [35], this provision was not intended to departfrom the "well-engrained" previous approach taken by the court on appeal, in which the second stage of the court's inquiry was whether a sentence was "manifestly excessive".9 Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [96].10 Churchward v R, above n 3, at [107].would result in a sentence of approximately 12 years and four months. A further seven and a half per cent reduction for guilty plea would leave an end sentence of 11 years and five months.[29] Furthermore, unlike the offending in Edri v R, the statutory policy of the Act in terms of accountability, denunciation and protection of the public is fully engaged. In this regard, the end sentence imposed by the Judge is well within the range of sentences imposed for comparable murder offending with similar mitigating features, including youth, psychological condition or a combination of both.11 As affirmed most recently by this Court in Akash v R, in cases where s 104 is engaged the specified minimum sentence is not to be departed from lightly and the Court must give effect to the legislative policy of ensuring a 17 year minimum for the most serious murder cases. Any departure from that policy must withstand scrutiny.12[30] Overall, while Mr Pomare's culpability is reduced because of his FASD andyouth, and recognition must be given to the harsh effect prison may have on him, a final MPI of 12 years is not manifestly excessive in light of the objective seriousness of the offending and the clear statutory policy just mentioned.Result[31] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent11 See Churchward v R, above n 3; see also the cases cited in R v Pomare, above n 1, at [48]–[49].12 Akash v R [2017] NZCA 122 at [16], referring to R v Williams [2005] 2 NZLR 506 (CA) at [66].