POU v NEW ZEALAND POLICE [2021] NZHC 1068

POU v NEW ZEALAND POLICE [2021] NZHC 1068 [13 May 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-000071[2021] NZHC 1068BETWEEN GUSTAVO POUAppellantAND NEW ZEALAND POLICERespondentHearing: 10 May 2021Appearances: R A van Boheemen for AppellantO S Klinkum for RespondentJudgment: 13 May 2021JUDGMENT OF WYLIE JThis judgment was delivered by Justice WylieOn 13 May 2021 at 3.45 pmRegistrar/Deputy RegistrarDate:Solicitors/counsel:Crown Solicitor, AucklandC G Farquhar/R A van Boheemen, AucklandIntroduction[1] The appellant, Gustavo Pou, appeals a sentence of nine months' homedetention imposed by Judge Shortland in the District Court at Auckland on 20 January2021.1 The sentence was imposed in respect of the following charges:(a) burglary (x 2);2(b) theft (x 4);3(c) assault on a person in a family relationship;4 and(d) failing to appear.5[2] Mr Pou appeals his sentence on the ground that it is manifestly excessive. Hesays that the Judge gave insufficient discounts for his personal mitigating factors andthat he should have been given an allowance to reflect the time he spent in custodialremand prior to sentencing.[3] The Crown supports the sentence imposed, submitting that the discounts givenwere appropriate and that, in any event, the sentence is not manifestly excessive in allthe circumstances.BackgroundBurglary (x 2)[4] At about 4.40pm on 28 June 2020, Mr Pou arrived at an address in Panmure.He entered the property by forcing open a side window that leads into a storage area.He took six large boxes containing 24 new mini ovens. He loaded these into hisvehicle and left. The burglary was captured on CCTV. The ovens belonged to a personknown to Mr Pou. The items were worth $480 in total.1 Police v Pou [2021] NZDC 7421.2 Crimes Act 1961, s 231. Maximum penalty 10 years' imprisonment.3 Crimes Act 1961, ss 219 and 223(d). Maximum penalty three months' imprisonment.4 Crimes Act 1961, s 194A. Maximum penalty two years' imprisonment.5 Bail Act 2000, s 38. Maximum penalty one year's imprisonment or a fine not exceeding $2,000.[5] At about 3.30pm on 3 July 2020, Mr Pou went to an address in Dominion Road,Mount Roskill. The address is a fully fenced residential home with CCTV cameras.The occupier was known to Mr Pou. He was not at home and he had not given Mr Poupermission to enter his property. Mr Pou parked his vehicle in a driveway in front ofthe address. He entered the property through the front gate and looked around to checkif anyone was around. He proceeded to walked to a car port and then helped himselfto a can of coke from a fridge. He then entered an unlocked shed at the rear of theproperty. He picked up a tool bag filled with tools belonging to the victim. The toolshave an approximate value of $1,500. Mr Pou took the tools and subsequently left theaddress through the side gate and drove away in his vehicle. In explanation, he statedthat he had taken the items because he needed money.Theft (x 4)[6] On 12 February 2020, Mr Pou arrived at a gym in St Johns. He got out of hisvehicle and wandered around the premises, looking up at CCTV cameras while doingso. He then picked up a portable barbecue and gas bottle. The items belong to thevictims of this offending and are worth about $500. Mr Pou loaded the barbecue andgas bottle into his vehicle and left the premises. In explanation, Mr Pou said that hethought the items had been left out as rubbish and that he took them as scrap metal.[7] At about 12.05pm on 18 April 2020, Mr Pou arrived at the same premises inPanmure noted at [4] above. He walked through an open rear door and uplifted a boxcontaining a portable oven. He returned to his vehicle with the box and left thepremises. The oven is the property of the victim and is valued at $125.[8] At 10.51pm on 24 June 2020, Mr Pou arrived in his vehicle at a service stationin Newmarket. He filled up his vehicle with $75 worth of 91 octane petrol. He thendrove away without paying for the petrol.[9] At around 6.44pm on 2 July 2020, Mr Pou arrived in his vehicle at a servicestation in St Heliers. He filled up his vehicle with $50 worth of 91 octane petrol. Hedrove away without paying for the petrol.[10] In explanation, Mr Pou said that he had committed these various thefts becausehe needed to fund his methamphetamine habit.Assault on a person in a family relationship[11] At about 4.45pm on 23 June 2020, Mr Pou was travelling in a vehicle with hispartner, the victim of this offending. She was 37 weeks pregnant at the time. He wasdriving while she was in the front passenger seat. They began to argue after Mr Pouasked the victim to buy methamphetamine for him. He stopped the vehicle andpunched the victim at least three times in the head with a closed fist. When spoken to,he said that he had not punched the victim but had hit her with the back of his handwhile driving.Failing to appear in Court[12] On 15 June 2020, Mr Pou, having been released on bail on 25 May 2020, failedwithout reasonable excuse to attend at the Auckland District Court.District Court sentencing[13] Judge Shortland began by acknowledging the presence in Court of Mr Pou'sfamily. He also acknowledged the victims who had been impacted by Mr Pou'soffending. He summarised the relevant facts and noted that Mr Pou had spent sometime in custody. He accepted that Mr Pou was remorseful and that he had participatedin rehabilitative programmes. The Judge identified the relevant purposes ofsentencing in this case as being the need to hold Mr Pou accountable for his actions,the need to protect the community and the victims, and the need to recognise thegravity of his offending. He acknowledged Mr Pou's personal circumstances.[14] On the lead charge of burglary, the Judge held that an aggravating feature wasthe fact that one of the target premises in Panmure had been "hit not once but twice"(noting that Mr Pou had only been charged with one burglary for his offending at thesepremises when he could have been charged with two burglaries). He adopted a startingpoint of 18 months' imprisonment for this burglary. This was uplifted by six monthsfor the other offending (noting that it had been committed while Mr Pou was on bail)and then by a further two months for Mr Pou's previous dishonesty related offending.This brought the starting point sentence to 26 months' imprisonment.[15] The Judge then took into account Mr Pou's guilty pleas, the rehabilitative workhe had done and the letters of remorse he had written to the victims and the Court. Healso took into consideration Mr Pou's drug addiction issues and his need forprofessional help. The Judge reduced Mr Pou's sentence by eight months to recognisethese matters. This brought the starting point sentence down to 18 months'imprisonment.[16] The Judge noted the recommendation of home detention in the pre-sentencereport. He considered that this would assist Mr Pou in gaining entry to a residentialprogramme and help him to go forward and deal with his drug addiction and theassociated offending. The Judge noted that Mr Pou has a family who are willing tosupport him. He sentenced Mr Pou to nine months' home detention.The appeal[17] The appeal is brought pursuant to s 244(1) of the Criminal Procedure Act 2011.This Court must allow the appeal if it is satisfied that, for any reason, there is an errorin the sentence imposed on conviction and that a different sentence should beimposed.6 This Court does not start afresh. Nor does it simply substitute its ownopinion for that of the original sentencer. Rather, it must be shown that there was anerror by the original sentencer, whether intrinsically or as a result of additional materialsubmitted on appeal. If there is an error, the Court will then consider whether thaterror is material and whether it has resulted in a manifestly excessive sentence. Thefocus is on whether the sentence imposed is within range, rather than the process bywhich it was reached.7Submissions[18] Ms van Boheemen, for Mr Pou, recorded that he is grateful that the Judgeimposed a rehabilitative sentence and advised that he is doing well at the Grace6 Criminal Procedure Act 2011, s 250(2).7 Tutakangahau v R [2014] NZCA 279 at [30]-[36].Foundation where he is currently a resident. Nevertheless, she submitted that hissentence is too long. She argued that the Judge's overall discount of eight months –approximately 30 per cent – to recognise Mr Pou's early guilty pleas, his rehabilitativeefforts, his remorse, and his addiction issues, was insufficient. She argued that theJudge erred in his approach as he had not apportioned out the different factors makingup the total discount given. She submitted that Mr Pou should have received discountsof 25 per cent for his guilty pleas, at least 15 per cent for his addiction issues andrehabilitative efforts, and 10 per cent for remorse. She also submitted that the Judgeerred in not reducing Mr Pou's sentence to acknowledge a period of three and a halfmonths he spent on custodial remand. She argued that Mr Pou's sentence should havebeen reduced to 10 months' imprisonment, which she submitted should be commutedto five months' home detention.[19] Ms Klinkum, for the respondent, submitted that the discounts given weresufficient and that, in any event, the end sentence was within the available range. Sheargued that the appropriate guilty pleas discount should have been 15 to 20 per cent.She submitted that a discount of around 10 to 15 per cent would have been appropriateto recognise that Mr Pou's offending was fuelled by addiction and to recognise hiswillingness to engage in rehabilitation. She submitted that the Judge acknowledgedMr Pou's remorse and that a 5 per cent discount would have been sufficient for thisfactor. Adding these discounts together, Ms Klinkum submitted that the globaldiscount given of approximately 30 per cent was within the available range and was amatter for the Judge in the exercise of his discretion. It was further submitted thateven if this Court considers that the discounts should have been higher, this should bebalanced by the generous starting point adopted by the Judge. She submitted that theJudge's sentencing notes implicitly suggest that he did take the time spent on remandinto account in reaching the eight-month discount afforded to Mr Pou. She acceptedthat this should have been expressly taken into account but argued that the endsentence remains appropriate and that it best meets the purposes of rehabilitation andreintegration.Analysis[20] There has been no challenge to the starting point adopted by the Judge for thelead offending or to the uplift applied for the balance of the offending and for Mr Pou'srelevant previous convictions. Rather, this appeal centres on whether Mr Pou wasafforded adequate discounts for his personal mitigating factors and whether the Judgeshould have made a further deduction to the sentence imposed for the time he spenton remand.[21] The Judge did not specify the discount given for each personal mitigatingfactor he took into account. Instead he granted an overall discount for Mr Pou's guiltypleas, his addiction issues, his efforts at rehabilitation and his remorse. The overalldiscount of eight months granted by the Judge equated to approximately 30 per centof the indicated starting point sentence of 26 months' imprisonment. It would havebeen preferable if the Judge had itemised the discount given for each personalmitigating factor and then applied the total percentage discount to the starting pointsentence. That is the approach taken in relevant authorities, for example, Moses v R.8It was there held that, as a first step, the Court should determine the starting pointsentence for the offending in issue as if it had been committed by an adult offenderafter a defended trial. It should incorporate into this the aggravating and mitigatingfactors of the offending to reach an adjusted starting point. As a second step, the Courtshould tailor the adjusted starting point to the offender, incorporating his or herpersonal aggravating and mitigating circumstances. These circumstances aregenerally considered individually. They can be expressed as a number of months (oryears) or as a percentage of the adjusted starting point sentence. Either way, listingthe discounts individually makes it clear to both the defendant and to an appellate courtwhat factors have led to a discount and what allowance has been made for each factor.A failure to do this is not however fatal on appeal; it is the end sentence reached whichis relevant rather than the process adopted. Nevertheless, a failure to identify thepersonal circumstances individually and to indicate how each affects the adjustedstarting point does make it more burdensome for an appellate court.[22] I turn to consider each relevant personal factor separately to see whether theoverall discount allowed by the Judge was appropriate:(a) The guilty pleas: Credit given for guilty pleas should reflect all of thecircumstances in which the pleas were entered, including when they8 Moses v R [2020] NZCA 296 at [5]-[10].were entered and the strength of the prosecution case.9 Here, Mr Poupleaded guilty at an early stage. The Crown's case however was verystrong. Mr Pou's offending was captured on CCTV in relation to anumber of the offences. There was an independent witness to thedomestic assault. I consider that a 20 per cent discount would havebeen appropriate, taking into account these factors.(b) Addiction and rehabilitation: Discounts of up to 30 per cent can begranted where a defendant has a drug addiction and there is a causalnexus between the addiction and the offending.10Here, Mr Pou's methamphetamine addiction is self-reported.Normally, more is required. However, the Judge accepted thatMr Pou's drug addiction issues led to his offending. 11 Mr Pou'scomments to the police and comments attributed to him in the pre-sentence report suggest that obtaining money to feed his drug addictionmotivated the burglaries and perhaps some of the thefts. Ms Klinkumreasonably accepted that Mr Pou is a drug addict and that there was thelink between Mr Pou's addiction and some of his offending. I agreewith her assessment, albeit noting that the link with the thefts of petrol,the assault by Mr Pou on his partner and the failure to appear, is lessobvious.The report writer recorded Mr Pou's desire to complete a residentialrehabilitation programme for his drug addiction. At the time ofsentencing he had applied for The Bridge Programme at OdysseyHouse or the Solutionz Course at the Grace Foundation. While oncustodial remand, he had completed the Dynamics of Whanaungatangaand Mindfulness course. The Judge commended Mr Pou's efforts andconsidered that he deserved a credit for his participation in theseprogrammes.9 Hessell v R [2010] NZSC 135.10 Zhang v R [2019] NZCA 507 at [148].11 Police v Pou [2021] NZDC 7421 at [8], [17] and [18].Counsel for Mr Pou initially advised that Mr Pou had been accepted bythe Grace Foundation and that he was residing at its premises inOtahuhu. I was told that he had started the "Solutionz" course and hadapproximately five weeks left to complete it. Shortly before I wasabout to release this judgment, I received a further memorandum fromMr Pou's counsel advising that Mr Pou has left the Grace Foundationpremises. Apparently he did not adhere to the rules of the GraceFoundation's programme and he was asked to leave.Before receiving this advice, I had considered that a discount of 20 percent would have been appropriate to recognise Mr Pou's drug addictionand rehabilitative efforts. Given recent events, I am not now preparedto indicate what discount if any should be applied to Mr Pou for thesematters.(c) Remorse: Remorse is identified as a mitigating factor by s 9(2)(f) ofthe Sentencing Act 2002 and the Courts have recognised that remorse,where demonstrated and genuine, is a distinct mitigating factor from aguilty plea discount.12Here, Mr Pou's remorse is evidenced in a letter of apology he wrote toone of the victims of his offending. He also attended a restorativejustice conference with the same victim and he expressed genuineremorse to the report writer. He offered reparation. Counsel advise thathe has put an arrangement in place to make regular payments by wayof reduction from his benefit payments. Those payments have not asyet been paid out to the victims because of this appeal. Separatereparation was paid by his family to the service stations involved.In my view, a 10 per cent discount would have been appropriate forremorse and the reparation payments made and to be made.12 Moses v R, above n 8, at [24].[23] I now turn to the issue of time spent on custodial remand. It was commonground that Mr Pou spent 14 weeks – or three and a half months – on remand incustody.[24] The Judge did note that Mr Pou had been "inside for a period of time" whendiscussing the rehabilitative courses he had completed while in custody.13 He did nothowever deduct the time spent in custody before considering the home detentionoption.[25] While time spent on remand in custody is automatically factored in when theend sentence is a sentence of imprisonment, this is not the case where the sentenceultimately imposed is one of home detention.14 Instead, a sentencing Judge must makea reduction for any time spent in custody. This will normally be the actual time theoffender has spent in custody.15 Giving a credit for time spent in custody is importantas it ensures equality of treatment for offenders regardless of the type of end sentenceimposed (imprisonment or home detention).16 The reduced term can be commuted toa sentence of home detention in appropriate cases. The generally acceptedmethodology when a sentence is commuted involves halving the sentence ofimprisonment.17[26] In my judgment, the Judge should have deducted three and a half months, beingthe time spent by Mr Pou on custodial remand, from the adjusted starting pointsentence before going on to consider whether to commute the sentence into a sentenceof home detention. He erred in not doing so.[27] There are other problems with the sentence imposed.[28] The Judge did not, in his sentencing notes, fix an address at which the sentencewas to be served. This was contrary to s 80A(4) of the Sentencing Act. The address13 Police v Pou [2021] NZDC 7421 at [11].14 See Sentencing Act 2002, s 80X(1); compare s 82.15 Gotty v R [2020] NZHC 2035 at [18]; Longman v Police [2017] NZHC 2928 at [19]; Parkinson vPolice [2019] NZHC 1710.16 Gotty v R [2020] NZHC 2035 at [18]; Longman v Police [2017] NZHC 2928 at [8]-[9].17 Laloni v R [2015] NZCA 55 at [14]; though note that this methodology is not prescribed by lawand what is ultimately required is an evaluative assessment of all the circumstances: R v Bisschop[2008] NZCA 229; S v R [2011] NZCA 178.of the Grace Foundation has been entered on the Court record for some of the charges.This is irregular and improper. Fixing an address for a sentence of home detention ispart of the sentence imposed. It is not an administrative exercise. It should have beendealt with in open Court and while the defendant was present.[29] An offender serving a sentence of home detention becomes subject to thestandard conditions set out in s 80C(2) of the Sentencing Act and to any specialconditions that may be imposed by the Court under s 80D. The Judge, in hissentencing notes, did not impose any special conditions. He simply recorded that hehad looked at the recommendations (presumably in the Provision of Advice to Courtsreport) and that he was prepared to look at home detention. He ventured the opinionthat it would assist Mr Pou if he could get into a residential programme. In my view,the Judge should have imposed special conditions designed to ensure that Mr Poureceived the rehabilitation that he requires pursuant to s 80D of the Act.[30] Finally, the Judge in his sentencing notes said that he was making reparationorders and recorded that he had discussed them with Mr Pou. No further detail wasgiven, although notes requiring the payment of reparations were made on some of thecharging documents forming part of the Court file. This is also irregular. Reparationis a sentence which can be imposed in relation to any particular offence, either on itsown or in addition to any other sentence.18 Such orders should be made in open Courtand they should have been set out clearly. They should not have been treated as anadministrative task to be endorsed on the Court file.[31] Initially I had intended to allow the appeal, quash the sentence imposed,impose a shorter sentence of home detention, fix an address at which the sentence wasto be served, incorporate conditions relating to Mr Pou's rehabilitation and makereparation orders. However, given the recent turn of events disclosed by counsel, I amnot in a position to do so. I no longer have an address at which any sentence of homedetention can be served. Further, Mr Pou's recent behaviour may suggest that asentence of home detention is no longer appropriate.18 Sentencing Act 2002, s 12(2).[32] Accordingly, I allow the appeal and quash the sentence of nine months' homedetention imposed by Judge Shortland. I remit the matter to the District Court, so thatit can re-sentence Mr Pou, taking into account the observations made in this judgmentand matters as they stand at the time Mr Pou is resentenced.______________________________Wylie J