POLAAPAU v R [2020] NZCA 227

POLAAPAU v R [2020] NZCA 227 [11 June 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA602/2019[2020] NZCA 227BETWEEN NUTIMEKI MAVEU POLAAPAUAppellantAND THE QUEENRespondentHearing: 12 May 2020Court: Kós P, Venning and Mallon JJCounsel: M F Tu'ilotolava for AppellantM R L Davie for RespondentJudgment: 11 June 2020 at 11 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal is allowed.C The sentence of six and a half years' imprisonment is quashed.D 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 ofviolence and property offences that he had committed when he was 15, 16 and 17 yearsold.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 noprejudice. 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 wasimposed in relation to charges laid in the District Court after Mr Polaapau turned 17and 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 followingcharges:2(a) aggravated wounding on 17 November 2016 (Youth Court);(b) aggravated burglary on 25 February 2017 (Youth Court);(c) aggravated robbery on 27 February 2017 (Youth Court);(d) aggravated burglary on 15 February 2018; and(e) unlawful interference with transport on 27 April 2018.[4] The Judge imposed concurrent terms of two years' imprisonment on thefollowing charges:3(a) two charges of unlawfully using a motor vehicle on 15 February 2018;(b) unlawfully using a motor vehicle on 26 April 2018; and(c) aggravated injury on 27 April 2018.1 R v Polaapau [2019] NZDC 20333.2 At [131].3 At [132].[5] On a related charge of failing to stop on 27 April 2018, the Judge imposeda concurrent sentence of four months' imprisonment and disqualified Mr Polaapau forsix months.4[6] The Judge convicted and discharged Mr Polaapau on all the other chargesbefore the Court.5Procedural background[7] Mr Polaapau has been before the Youth Court on numerous occasions.For present purposes, the relevant background to the offending started in November2016 when Mr Polaapau was residing at a Youth Justice facility. He and two othersattacked the night shift attendants at the units and escaped.6 Mr Polaapau wassubsequently 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 aggravatedburglary.7 Two days later, on 27 February 2017, Mr Polaapau and the sameco-offender committed an aggravated robbery.8 Mr Polaapau was apprehended andplaced 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 pursuantto s 283(o) of the Oranga Tamariki Act 1989 (OT Act). The application was adjournedto 20 September 2017. Having regard to the reports then available to her, Judge Eiversconsidered the least restrictive outcome was for Mr Polaapau to remain in theYouth Court.9 The Judge made a supervision with residence order under s 311 of theOT Act on all charges.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] On 5 December 2017, Mr Polaapau's sentence was reviewed in accordancewith s 311(2A)(a) of the OT Act. Having regard to a positive report, the Court grantedMr Polaapau early release from residence under s 314 of the OT Act. A six-monthsupervision order was imposed.[11] Unfortunately, Mr Polaapau failed to comply with the conditions ofsupervision. Instead he re-offended. He was arrested on 16 February 2018 (somesix weeks after turning 17) in relation to an aggravated burglary at a McDonaldsoutlet.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 tocomply with his supervision order. On 11 April 2018, he removed his EM braceletand absconded.[12] On 24 April 2018, a formal application for a declaration of non-compliancewith 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 vehicleand the driving offences which are referred to in more detail at [23]–[25] below.11He was apprehended on 27 April 2018 and returned to custody.[14] The Crown renewed the application for transfer to the District Court forsentence. On 8 August 2018, Judge D J Harvey concluded that Mr Polaapau shouldbe convicted on the outstanding charges and transferred to the District Court forsentence pursuant to s 283(o) of the OT Act.12[15] There was a delay in the sentencing process in the District Court. Judge Clarknoted the delay was largely due to the adjournments required whilst a s 27 report underthe Sentencing Act 2002 was prepared.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.Details of the relevant offendingAggravated wounding[16] In November 2016 (when aged 15), Mr Polaapau was residing at aYouth Justice facility with PM and TP. The complainants, Mr Teaonui andMr Bostock, were working as night shift attendants in the unit. At about 11.45 pm on17 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 lostconsciousness. At that stage, TP joined in and attacked Mr Bostock, punching himmultiple times to the head, causing him to fall to the ground. TP continued the attackby stomping on Mr Bostock's head. In the meantime, PM punched Mr Teaonui andstomped 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 Polaapaukicked him as he lay on the ground. Both complainants required hospital treatmentfor their injuries.[17] Mr Polaapau and his co-offenders were located two days later after committinga burglary at an elderly woman's home. Mr Polaapau was then returned to anotherYouth Justice facility. On 24 February 2017, Mr Polaapau and an associate escapedfrom that facility.Aggravated burglary[18] Following their escape on 24 February 2017, Mr Polaapau and an associatestole a car. At about 5 pm on 25 February 2017, Mr Polaapau and two associatesarmed 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 retiredman, was at home alone, cooking his dinner. Mr Polaapau went to the rear ofMr Aiken's home, confronted him and demanded money. Mr Polaapau thenphysically attacked Mr Aiken, grasping him around the neck. Mr Polaapau threatenedto kill Mr Aiken and pushed him to the floor. Mr Polaapau's associates stole anassorted number of coins and medals that Mr Aiken had collected over a number ofyears, and also took a bank card. While Mr Polaapau was fleeing the scene he wasconfronted by a concerned neighbour. The neighbour had heard sounds of violencefrom within the house and had called the police. She was on the phone to the policewhen Mr Polaapau left the property. When Mr Polaapau noticed her outside theproperty 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 neighbourreceived minor bruising to her leg.Aggravated robbery[20] On 27 February 2017, Mr Polaapau, together with three others, drove to theHandy Store in Papatoetoe. Mr Polaapau and one of his co-accused armed themselveswith a spanner, a crowbar and a hammer. They then carried out an aggravated robberyat the Handy Store. Mr Polaapau threatened the owner of the shop with the hammerand ordered him to the ground. Mr Polaapau and his companion stole cigarettes andcash to a value of $12,000.[21] In the course of the robbery, Mr Polaapau also threatened a member of thepublic who had come into the shop. Mr Polaapau and his co-accused were locatedby the Police shortly after and placed in custody. He was subsequently dealt withby Judge Eivers as noted at [9] above.Aggravated burglary[22] At around 2.15 am on 15 February 2018 and while subject to the supervisionorder, Mr Polaapau and four co-offenders went to a McDonald's restaurant onOrmiston Road in Flat Bush. Their faces were covered by clothing. Two of them werecarrying car jacks, which they initially threw at a window in an unsuccessful attemptto gain entry. They continued their attempt to break the window by kicking it andhitting 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 windowa 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 intothe 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 arrestedshortly 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 onWestern Springs Road, Auckland. Mr Polaapau failed to stop when signalled to do soby 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 speedsof up to 150 km per hour. To apprehend Mr Polaapau, the police deployed road spikesat an on-ramp. Mr Polaapau veered sharply to avoid them and also sped up in anattempt 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 cardriven by Mr Polaapau, resulting in scrapes on his right elbow. His radio was alsorendered inoperable. As he left the scene, Mr Polaapau executed a U-turn in an attemptto again run over the Constable.[24] As he was running out of petrol in the stolen car, Mr Polaapau then tried to steala 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 atthe driver. He demanded the driver get out of his vehicle, threatening to hit him withthe 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 motorwayat speed before exiting an on-ramp where the police were able to successfully deployroad spikes and stop the car he was driving. After a short foot chase, the police caughtand arrested Mr Polaapau.The structure of the District Court sentence[26] Judge Clark took the unlawful interference with transport charge as the leadoffence.13 She fixed a starting point of five years for that offence.14 The Judge thenuplifted that by two years to take account of the related offending, namely the unlawfuluse of the car, the aggravated injury of the police officer and the failure to stop for thepolice.15 Judge Clark then added a further two years for the aggravated burglary atMcDonalds to arrive at a combined starting point for the District Court offending ofnine years' imprisonment.16[27] The Judge then applied a further uplift of four years to take into account theYouth 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 theappellant's personal circumstances and 25 per cent for his guilty pleas.18The combined 50 per cent discount led to the final effective sentence of six and a halfyears' imprisonment.19The grounds of appeal[29] Ms Tu'ilotolava submitted that the overall starting point of 13 years with theresultant six and a half years' imprisonment was manifestly excessive and a crushingsentence on Mr Polaapau. She submitted the sentencing Judge fell into error by givinginadequate consideration to:(a) Mr Polaapau's personal history, his characteristics and socialcircumstances;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].(b) the significant engagement by Mr Polaapau with the sentence imposedby the Youth Court; and(c) the totality of offending in the District Court having regard to thebrevity of time between each set of offending, and particularly thesentences of supervision in the Youth Court.Mr Polaapau's personal circumstances[30] We do not agree the Judge gave inadequate consideration to Mr Polaapau'spersonal history, his characteristics and social circumstances. The Judge had beforeher two pre-sentence reports and was aware of the earlier report for the purposes ofthe 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 andupbringing. One of the things that struck me, Mr Polaapau, with regard toyour family was that in fact you came from a loving family. Certainly therewas disruption when there was a separation between your parents but,although you seem to express the view that you had been abandoned, I do notagree that that is what happened to you. I am making specific reference to thefact that you were sent to live in Tonga for a period of time. As I understandit, you made contact with your father and you were brought back toNew Zealand to live with him in Opotiki. It was once you were living inOpotiki that things changed for you. That is where, it seems, your offendinglifestyle took root, but I do not consider that you have been someone who wasunloved or uncared for.[126] What I consider has happened here is that you yourself, at a veryyoung age, chose to enter into an offending lifestyle and you have embracedthat offending lifestyle with some relish. When I looked at the s 27 culturalreport, particularly paragraph 2.46, you were asked to describe two distinctperiods of your upbringing, that is from 2001 to 2012 and then from 2013onwards. With regard to the earlier timeframe you said that your upbringingwas loving, you were well looked after, it was structured and good and that iswhen your life was structured and it was stable. When describing 2013onwards you said, "It was just fucked, all over the place and messy. It wasa 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 withyou from 2013 onward, as an acknowledgement from you that although youhad a stable environment around you, and this was when you were living withyour 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 asa young man, probably not appreciating the full consequences of yourbehaviour, but really what I am trying to outline for you, Mr Polaapau, is that20 R v Polaapau, above n 1.I do not consider that you fall into the category of someone who has beengrossly disadvantaged or grossly deprived in terms of your history and yourupbringing.[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 poorchoices with regard to who you will associate with, the activity that you willbe associated with and so on. I know that from the defence perspective,a significant discount to take into consideration the matters contained in thes 27 report is sought, however, I simply do not consider that the type ofdiscount contended for is appropriate in your circumstances.[31] We agree with the Judge's assessment of Mr Polaapau's personalcircumstances. He was neither grossly disadvantaged nor deprived in terms of hisbackground and upbringing.[32] In fact, the Judge's allowance of 25 per cent for Mr Polaapau's youth andpersonal circumstances and 25 per cent for the guilty plea might in both instances beregarded as generous. In terms of the full discount for the guilty plea, Mr Polaapauwas caught at the scene in relation to the driving offences. There was also strongforensic 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 wassentenced for a series of serious repeated offences which escalated in seriousness overa period of time. The offending involved violence committed by Mr Polaapau in thecompany 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 theSentencing Act must always weigh the young person's age and the reasonswhy he or she offended, against the seriousness of his or her offending andprospects of rehabilitation. Sometimes the young person's age will be amitigating factor of high, perhaps decisive, significance not to becircumscribed by any fixed outer percentage. Equally, there can be no warrantfor saying that youth, of itself, must always prevail as the paramount value onsentence, or that youth alone can justify radically reducing the sentence whichwould otherwise be proper.[96] the fact [that] an offender is a young person can sometimes begiven radical effect on sentence, unconstrained by any normative percentage,even where offending is serious. In other cases that is not possible. The young21 Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868.age of the offender cannot be accorded presumptive, let alone paramount,weight. The objective seriousness of the offending, the young person's partin 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 forMr Polaapau's engagement with the Youth Court order.[35] We do not consider that there is anything in this point either. While there wasa positive report under the OT Act, as noted there was substantial reoffending byMr Polaapau following his early release on supervision. He failed to comply with theconditions of supervision. Further, after being granted EM bail in the District Courtand directed to comply with the supervision order, he cut off his EM bracelet and thenengaged in serious reoffending. In the circumstances, the earlier limited positiveengagement 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 theresentencing of the Youth Court offending was excessive. Mr Polaapau had completedthe first part of the order related to that (and the other Youth Court offending) but hadthen failed to complete the supervision.[37] Ms Tu'ilotolava made the point Mr Polaapau had been in Youth Court custodyfrom 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 Courtcustody and subject to the residence order could not be taken account of in fixing theultimate penalty. Mr Polaapau was in "pre-sentence detention" in terms of s 82 of theSentencing Act.2222 Section 82 of the Sentencing Act provides that a sentencing court must not take into account timeon "pre-sentence detention" as defined in s 91 of the Parole Act 2002 in determining the length ofany sentence of imprisonment to be imposed. Taking pre-sentence detention into account wouldlead to double counting because s 90(1) of the Parole Act provides that pre-sentence detentioncounts as time served for the purpose of calculating the offender's non-parole period, paroleeligibility date, and statutory release date.[39] However, the issue still remains whether the four-year uplift was justified forthe Youth Court offending.[40] In relation to that, the following points are relevant. In relation to one of thecharges at least, the attack on the Youth Justice facility attendants which led to theaggravated wounding charge, Mr Polaapau's role was very limited and he was notresponsible for the serious injuries inflicted on the victims.[41] We accept that when setting the four year uplift the Judge took into accountthat Mr Polaapau had previously been sentenced in the Youth Court. This was whyshe did not take this offending as the lead offending. We also accept that onceoffending is transferred to the District Court for sentencing, materially differentsentencing outcomes can follow. Nevertheless, we consider a four year uplift was verystern relative to the order of six months' supervision with residence originally imposedfor 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 havingregard to the offending from the Youth Court which was committed over a relativelyshort period of four months when Mr Polaapau was aged 15 and, in relation to theoffending in February 2017, when he had just turned 16.[43] We note that in his decision on the application for transfer to the District Courtand after noting the Crown submission that an adjusted final starting point of around13 years' imprisonment would be appropriate, Judge Harvey noted: "Of course theprinciple of totality would have to be taken into account".23[44] We consider Judge Clark fell into error by not standing back and assessing theissue of totality overall once she had structured the adjusted final starting point for thesentence. We consider that, having regard to totality at that stage and taking intoaccount the length of time that had passed since the offending, an overall starting pointof no more than 11 years was appropriate.23 Police v SY, above n 12, at [50].[45] Applying the 50 per cent discount to that overall starting point leads to an endsentence of five and a half years' imprisonment.[46] For those reasons, we accept Ms Tu'ilotolava's submission that the endsentence imposed was manifestly excessive, particularly having regard toMr Polaapau's age.Result[47] The appeal is allowed. The sentence of six and a half years' imprisonment isquashed. The appellant is sentenced to five and a half years' imprisonment.Solicitors:Crown Law Office, Wellington for Respondent