POIPOI v NEW ZEALAND POLICE [2021] NZHC 2496

POIPOI v NEW ZEALAND POLICE [2021] NZHC 2496 [22 September 2021]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECRI-2021-454-24[2021] NZHC 2496BETWEEN BISHOP BAYDEN POIPOIAppellantAND NEW ZEALAND POLICERespondentHearing: 22 September 2021Counsel: J A Younger for AppellantE R Pairman for RespondentJudgment: 22 September 2021JUDGMENT OF SIMON FRANCE J[1] Mr Poipoi appeals a final sentence of 29 months' imprisonment imposed inrelation to a range of offences, the most serious of which were two charges ofburglary.1 The charges were:(a) burglary (x2);(b) breach of release conditions (x2);(c) theft;(d) receiving;(e) unlawfully taking a vehicle;1 Police v Poipoi [2021] NZDC 14967.(f) possession of offensive weapon (knuckleduster);(g) driving a vehicle in a dangerous manner (x2);(h) failing to stop (x2); and(i) failure to answer bail.[2] The appeal challenges both the starting points and the mitigation discounts.Starting point[3] The District Court took a domestic burglary as the lead offence. This involvedentering the house and then spray painting CCTV camera lenses and removing theassociated recording device. A number of items were piled up but seemingly not taken.A motorbike was taken but responsibility for that is not alleged against Mr Poipoi. Forthe offence the Judge took a starting point of 20 months.[4] The second burglary was of a church. It was Christmas time and Mr Poipoiand others stole Christmas food parcels from a charitable organisation linked to thechurch. Mr Poipoi's role was the lesser and he says he was unaware of the churchcontext. The monetary value represented in reparation was $1,000. The aggravatingcontext to the offending is obvious. The Court added six months2 meaning a totalstarting point for the burglaries of 26 months. Although issue is taken with this, Iconsider it a clearly available assessment for two burglaries.3[5] Issue is also taken concerning the approach to totality, the Judge having madea totality adjustment for the two burglaries but not having overtly considered it againonce the overall 36 month figure was identified. This no doubt was because theburglaries had already been subject to an adjustment. If the sentencing Court has notovertly addressed totality at the end of determining starting points, this may or may2 This was an adjusted uplift, the Court considering that standing alone the second burglary wouldattract 15 months.3 Arohanga v R [2012] NZCA 480 at [78] notes 18 months to two years starting points to be commonfor dwelling house burglaries at the relatively minor end.not be called an error, but it will only be a relevant error if in fact the total period ofimprisonment identified in the starting point is excessive.[6] Here the relevant starting point is 36 months. Given the number and range ofoffences, including two which in themselves merited 26 months, it is unlikely to beexcessive or unavailable and therefore require a totality adjustment. The drivingoffending was dangerous, and on separate days involved fleeing from the police withspeeds twice the speed limit. Oncoming traffic was forced to take evasive actionincluding driving off the road. There are also, as noted, two separate offencesinvolving unlawful possession of cars. Overall, the 10 months extra was in my viewappropriate, and the combined total well within range.[7] I do not consider a four month uplift for past offending was required.Mr Poipoi had previously had a sentence of home detention, and then more recently asentence of five months' imprisonment, his first actual such sentence. There are noprevious convictions for burglary, and an uplift almost the same length as the onlyprevious sentence of imprisonment was not required.[8] However, one other matter requires noting. Much of the 10 month offendingwas while on bail. The Judge, incorrectly, reduced the guilty plea credit byfive per cent to reflect this. It is an error in approach that is capable of affecting theoutcome by altering the mathematics. Offending on bail is an aggravating feature ofthe offending and should be reflected in the starting point. I would here add one monthfor this factor (recognising two months to also be available). The final outcome istherefore a starting point of 37 months' imprisonment.Discounts[9] Mr Poipoi was entitled to a full 25 per cent discount for his guilty plea and onappeal an adjustment is required to give effect to that.[10] The other issue is personal circumstances. Mr Poipoi is 26 years old with manypast offences, albeit none particularly serious (as is reflected in the past sentencesalready described). The home detention sentence related to the selling ofmethamphetamine, and with that one identifies a key driver in his offending –addiction. Mr Poipoi has long associated with a gang, as has his father, and generallyhas not been receptive to opportunities to change the path of his life.[11] However, for the first time the present process has seen a change. Mr Poipoiwas released from custodial remand to attend a programme run by the GraceFoundation. He was on that for 10 weeks prior to sentencing and engaged well withit. For that period he was apparently drug-free and the report provided is very positive.[12] Ms Pairman recognises the advantages in fostering the change in attitude thathas recently emerged. Further, however, on normal sentencing principles she acceptsa discount for personal factors of around 20 per cent. As Ms Younger submitted, thereare the factors of (relative) youth, a somewhat dislocated upbringing, and a clear linkto addiction-driven offending. While some of this is self-reported, the overallinformation and disclosed patterns make its reality plain.Outcome[13] The appeal is allowed.[14] I consider there should be a discount of 45 per cent from the starting point,leaving a final sentence of 20 months' imprisonment.[15] Mr Poipoi wishes to return to the residential programme. That is to beencouraged. I give leave to apply for home detention, in the expectation an applicationwill be made when a place becomes available.[16] The new sentence is achieved by quashing an existing sentence of two yearsand five months' imprisonment imposed on a count of burglary and substituting asentence of 20 months' imprisonment. All other sentences are unchanged._____________________Simon France JSolicitors:Jacinda Younger, Palmerston North for AppellantCrown Solicitor, Palmerston North for Respondent