Keni Purua-King v R

• Jurisdiction: New Zealand
• Judge: Miller J
• Judgment Date: 16 March 2020
• Neutral Citation: [2020] NZCA 61
• Court: Court of Appeal
• Docket Number: CA392/2019
• Date: 16 March 2020

Between

Keni Purua-King

Applicant

and

The Queen

Respondent

[2020] NZCA 61

Court:

Miller, Dobson and Moore JJ

CA392/2019

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Criminal Sentence — application for leave to bring a second appeal against sentence of two years nine months imprisonment for aggravated robbery — treatment of disparity under the three-strikes legislation and allowances for youth and cultural background — three strikes legislation — Sentencing Act 2002

Counsel:

N P Chisnall for Applicant

J A Eng for Respondent

The application for leave to appeal is dismissed.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Miller J)

1 This is an application for leave to bring a second appeal against sentence. It has been decided on the papers. The application is said to raise important questions about treatment of disparity under the three-strikes legislation and allowances for youth and cultural background.

The circumstances

2 Mr Purua-King was one of three offenders sentenced in the District Court for an aggravated robbery, which is a serious violent offence for the purposes of s 86A of the Sentencing Act 2002. It was also a serious offence in fact. The three offenders disguised themselves and robbed a convenience store, using a knife and threats of violence to overcome the owners' resistance. His was a stage 2 offence, meaning that absent exceptional circumstances he must serve the entire sentence without possibility of parole. 1 He was also convicted of unlawfully taking a motor vehicle.

3 The starting point adopted by the sentencing judge was four years, nine months imprisonment. 2 Because Mr Purua-King would have to serve the sentence without parole, Judge Clark declined to uplift the starting point for his previous convictions. Although he was 23 at sentencing he was given a discount of approximately 10 per cent for youth. An additional discount of 5 per cent was given for genuine remorse and a further 5 per cent for matters canvassed in a s 27 report, which pointed to insight and prospects of rehabilitation. The Judge allowed 25 per cent for his guilty plea. The effective sentence was two years, nine months imprisonment.

4 The Judge adopted the same starting point for an equally culpable co-offender who had previously committed a stage-1 offence but through some oversight had not been given the statutory warning. 3

Disparity

5 For Mr Purua-King, Mr Chisnall contends that a reasonably minded observer, aware of all the circumstances of the offence and the offenders, would think something has gone wrong with the administration of justice given that he must serve his entire sentence without parole while it is very likely that his co-offenders will not.

6 In the High Court, Woolford J responded that this is exactly what was intended by the legislation and the reasonable observer would accept that any disproportionality results from the design of the three strikes regime rather than its operation by the courts. 4

7 This conclusion is plainly correct. 5 In this case the offenders had all committed what was in fact and law a serious violent offence and the legislation is designed to deliver different parole eligibility outcomes according to their strike status. A second appeal on the point has no serious prospects of success. The sentencing judge in this case recognised, to the extent possible, the impact of the three strikes regime on Mr Purua-King. 6

Youth and cultural background

8 As noted, Judge Clark deducted 20 per cent for youth, remorse, rehabilitative prospects and cultural background. Mr Purua-King wishes to contend that this did not sufficiently recognise...