POMPEY v NZ POLICE [2023] NZHC 2378

POMPEY v NZ POLICE [2023] NZHC 2378 [30 August 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-000327[2023] NZHC 2378BETWEEN KARA NEIHANA POMPEYAppellantAND NEW ZEALAND POLICERespondentHearing: 21 August 2023Appearances: K C Leung for AppellantJ L Gibson for RespondentJudgment: 30 August 2023JUDGMENT OF ANDREW JThis judgment was delivered by Justice Andrewon 30 August 2023 at 2.00 pmpursuant to r 11.5 of the High Court Rules 2016Registrar / Deputy RegistrarDate .Introduction[1] The appellant, Mr Kara Pompey, pleaded guilty in the Auckland District Courtto six charges of burglary.1 He was sentenced by Judge B A Gibson to six years'imprisonment.2 He appeals to this Court, contending that the end sentence wasmanifestly excessive.[2] Mr Leung, on behalf of Mr Pompey, submits that an end sentence of 19 months'imprisonment or less is appropriate and that the Court should consider imposing asentence of home detention instead of imprisonment.[3] There are two principal grounds of appeal:(a) The starting point was manifestly excessive;(b) The sentencing Judge failed to place sufficient weight on mitigatingfactors.[4] The Police oppose the appeal.Background facts[5] Mr Pompey's charges relate to six distinct burglaries at various commercialpremises between January and August 2022. Four of the burglaries occurred inAuckland and two in New Plymouth. He managed to flee the scene successfully afterthe first five burglaries but was caught by Police after the final burglary.[6] The first burglary, on 5 January 2022, was committed at George Harrison, ahigh-end clothing store in central Auckland. Mr Pompey and two others went to thestore at night after it had closed; they entered the mall in which it was located via theautomatic door. Mr Pompey proceeded to throw a large concrete slab through thewindow of George Harrison, causing it to smash. He entered the store and begantaking garments from the racks while his two co-offenders remained at the broken1 Crimes Act 1961, s 231(1)(a); maximum penalty 10 years' imprisonment.2 Police v Pompey [2023] NZDC 13238.window, reaching through it to take garments from the window display. AfterMr Pompey had filled his arms with garments, he left the store through the samewindow. The total value of the property stolen was $25,796.[7] Mr Pompey returned to the same location in the early hours of 22 January 2022,accompanied by three co-offenders. The automatic door to the mall was locked onthis occasion, so one of Mr Pompey's co-offenders threw a medium sized rock throughit, shattering the glass. The four offenders then entered the mall and approached theGeorge Harrison store. Both Mr Pompey and one of his co-offenders then threw arock through the front window of George Harrison, causing it to smash. All fouroffenders entered the store through this smashed window and uplifted variousgarments. The total value of the property stolen was $13,350.30.[8] On 15 May 2022, Mr Pompey was again involved in similar offending. Thisoccurred at a different high-end store in central Auckland, T Galleria by DFS. Twoco-offenders smashed a store window and Mr Pompey entered the store. One ofMr Pompey's co-offenders retrieved a shopping trolley and positioned it outside thesmashed window. After retrieving a number of garments, Mr Pompey passed them tohis co-offenders, who then loaded them into the trolley. He repeated this process afurther three times. One co-offender fled the scene with the trolley, while Mr Pompeyand the other man each carried a bundle of clothing. The value of the property stolenwas $51,035.[9] Mr Pompey attended the same store on 27 May 2022 with three co-offenders.The facts of the offending are markedly similar to the burglary on 15 May. On thisoccasion, the stolen items were valued at $81,049, made up of $79,665 from theMoncler section of the store and $1,384 from the Gucci section.[10] The final two burglaries occurred in New Plymouth. On 29 July 2022,Mr Pompey and one co-offender burgled a jewellery store. Mr Pompey shattered thefront window of the store, before reaching through the security screen to smash adisplay case. He uplifted four watches with a combined value of $2,324. On 8 August2022, he went to a different jewellery store and took in excess of $11,000 of rings andnecklaces. He entered the store alone after smashing the front window, and afterPolice arrived, attempted to smash his way out of the locked fire escape. He was thenapprehended by Police.[11] In explanation, Mr Pompey stated "it is what it is, I am just trying to keep upwith the boys up North".[12] The total value of the property stolen across the four Auckland burglaries was$171,230.30, plus $13,324 in New Plymouth. These figures do not include the damagecaused to the targeted stores.The sentence imposed[13] After outlining the circumstances of each burglary, Judge Gibson referred toMr Pompey's explanation of his offending, as stated at [11] above, considering that itshowed a "cavalier and arrogant attitude that permeates through all of [his]offending".3 The Judge explained that "trying to keep up with the boys up North" wasreference to gang activity involving inner city burglaries being shown on television atthat time.4[14] Judge Gibson referred to Mr Pompey's extensive prior convictions,considering that he had displayed disregard for conditions of sentence by reoffendingwhile serving community-based sentences.5 He also noted that Mr Pompey's risk ofreoffending had been assessed as high by the PAC report writer and that he had beena prospect of the Killer Beez gang. Judge Gibson did not consider Mr Pompey'sclaims that he wanted to distance himself from the gang, nor his apology, to begenuine, noting that if he was truly remorseful, he would not have acquired such ahigh number of convictions.6 The Judge stated:[14] As the report notes, at this time a sentence of imprisonment is requiredto recognise your recidivist offending behaviour and your inability to makeamends by payment of reparation, which of course plainly is out of thequestion in terms of the amount of property that was taken by you.3 Police v Pompey, above n 2, at [9].4 Police v Pompey, above n 2, at [11].5 Police v Pompey, above n 2, at [12].6 Police v Pompey, above n 2, at [13].[15] In addressing the starting point for Mr Pompey's offending, Judge Gibsonreferred to various cases, including Ormsby v R, where a seven-year starting point wasadopted.7 He noted that in that case however, the offending involved residentialburglaries, which are "generally treated more harshly than burglaries of commercialpremises."8 Mr Ormsby also had 52 previous convictions.[16] Judge Gibson also referred to the case R v Nguyen, where the defendant wasthe leader of a burglary ring comprised of young people which targeted commercialpremises.9 Judge Gibson accepted that the offending here was spree offending in termsof the analysis in Senior v R.10 He also referred to the guidance given by R v Andrianin terms of the starting point.11[17] Judge Gibson considered that the following culpability factors were present inMr Pompey's offending: multiple high-value premises were targeted (some more thanonce), the burglaries were planned and premeditated, the losses were substantial, andMr Pompey was not acting alone and, in fact, appeared to be the leader.12 Heemphasised that the impact of such burglaries are far-reaching, resulting in increasedinsurance premiums, the cost of which would be passed onto consumers, and angstand concern within the community.13[18] As a result, Judge Gibson considered the starting point for the Aucklandburglaries to be seven years' imprisonment, with an uplift of one year to account forthe New Plymouth burglaries.14 He imposed a further uplift of six months to reflectMr Pompey's five previous burglary convictions and other prior dishonesty offending.This resulted in an overall starting point of eight and a half years' imprisonment.15 Hethen gave a 20 per cent discount for Mr Pompey's guilty pleas, noting that he had7 Ormsby v R [2017] NZHC 2508.8 Police v Pompey, above n 2, at [18].9 R v Nguyen CA110/01, 2 July 2001.10 Senior v R (2000) 18 CRNZ 340 (HC).11 R v Andrian (1996) 13 CRNZ 449 (CA).12 Police v Pompey, above n 2, at [21] and [19].13 Police v Pompey, above n 2, at [19].14 Police v Pompey, above n 2, at [23].15 In the District Court, the Police contended for a starting point of four years' imprisonment. Thatinvolved 24 months with respect to the Auckland charges, 12 months for the New Plymouthcharges and a further uplift of 12 months for the fact that the offending occurred while subject tobail conditions and the defendant's previous burglary convictions.pleaded guilty relatively quickly but not at the first reasonably opportunity. He alsoallowed eight per cent for s 27 cultural factors (a total discount of approximately 28per cent).16 Although Judge Gibson considered that Mr Pompey had essentiallycriminalised himself by his associations at school and afterwards, this discount waswarranted by other factors set out in the s 27 report.[19] The end sentence imposed was therefore six years' imprisonment, i.e. six yearsfor the Auckland burglaries and one year concurrent imprisonment for the NewPlymouth burglaries. Judge Gibson also noted that he had thought about imposing aminimum period of imprisonment (MPI) but decided not to do so "by a very narrowmargin".17Legal principles[20] Mr Pompey has an appeal as of right under s 244 of the Criminal ProcedureAct 2011.18[21] Section 250 of the CPA sets out how a court is to determine a sentence appeal.An appeal must be allowed if the Court is satisfied that there is an error in the imposedsentence and that a different sentence should be imposed.[22] The Court of Appeal in Palmer v R outlined the position with respect tosentence appeals, stating that:19[17] the standard of appellate review in sentence appeals ... requires thatthe appellant show a material error was made and satisfy the appellate courtthat a different sentence ought to be imposed. Sentencing is not a science andan appellate court will not ordinarily interfere unless the end sentence wasoutside the range available to the sentencing judge. For that reason it is notan error to describe sentencing decisions as discretionary, so long as it is clearthat "discretion" means only that the sentencer enjoys an appropriate marginof appreciation.16 Police v Pompey, above n 2, at [24].17 Police v Pompey, above n 2, at [26].18 CPA.19 Palmer v R [2016] NZCA 541 at [17] (footnotes omitted).[23] In Tutakangahau v R, the Court of Appeal said that the concept of "manifestlyexcessive" continues to apply to appeals against sentence.20 The Court held that theappellate court's focus is on the sentence imposed rather than the process by which itwas reached.21 A Judge on appeal should not intervene where the sentence imposedwas within the range that could be properly justified by accepted sentencingprinciples.22Analysis and decision[24] There are two critical issues for determination: whether the starting pointadopted by the Judge was too high and whether he failed to provide an adequatediscount for mitigating factors.Issue (a) – the starting point[25] I begin by noting that there is no tariff decision for burglary, as correctlyrecognised by Judge Gibson.23 A helpful analysis was undertaken by Muir J in Gorgusv Police of the relevant factors set out in earlier decisions.24 I, as Osborne J did inLenihan v R,25 respectfully adopt part of this analysis below:26[34] There is no tariff decision which governs sentencing for burglaryoffending. In Senior v Police, which predates the sentencing methodology laiddown in Hessell v R and R v Taueki, the Full Bench of the High Courtidentified factors which had historically been regarded as aggravating inburglary offending, including behaviour which involves actual danger ofconfrontation with occupiers, behaviour which makes a victim feel targeted,wanton destruction of property, theft of high value or sentimental items,sophisticated planning, and offending while on bail, parole, or in closeproximity to other burglary charges.[35] In R v Nguyen the Court of Appeal drew on the factors identified in Rv Mako (the aggravated robbery tariff case) in assessing the seriousness ofburglary charges. It considered that the factors which were relevant to thecriminality of the offending included the degree of planning and sophisticationin the offending, the nature of the premises entered, the nature and value ofproperty stolen, damage done, the impact and potential impact upon occupants20 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].21 Tutakangahau v R, above n 20, at [36].22 Tutakangahau v R, above n 20, at [36], citing Tutakangahau v R [2014] NZHC 556 at [10].23 Police v Pompey, above n 2, at [17].24 Gorgus v Police [2015] NZHC 3127.25 Lenihan v R [2015] NZHC 3127 at [26].26 Gorgus v Police, above n 24, at [34]–[36] (footnotes omitted).or owners of property, and the extent of the offending where multipleburglaries were involved.[36] In Arahanga v R, the Court of Appeal stated that burglary of adomestic residence is a significantly aggravating feature at sentencing due tothe heightened risk of confrontation with the occupants. The Court also statedthat dwelling house burglaries at the relatively minor end of the scale tend toattract starting points of between 18 months' to two and a half years'imprisonment.[26] In Lenihan v R, Osborne J proposed an alternative approach, putting into tableform a range of factors identified in the case law divided as between aggravating andmore or less neutral:27(a) Nature of offendingPlanned/Sophisticated Opportunistic/BasicVandalism/Wantonness Care in entry/nil damageHigh value theft/ loss of sentimentalitemsLow value theft/ loss of non-sentimental itemsResidential premises Business premisesActual danger to occupants No confrontationHigh risk of potential harm— Residence at night— Business during work hours— Property stolen eg Class A drugsLow risk of potential harm— Residence at day— Business outside work hours— Stolen property unlikely to causeharmTargeted Random/untargetedPremises where security is of publicimportance (eg Police Stations,Parliament)Premises of no particular securitysignificance(b) Circumstances of offenderRecidivist offending First-time offendingBail offending Offending while not subject torestrictionsSpree offending Isolated offending[27] Osborne J further held in Lenihan v R that a binary distinction betweenburglaries of commercial buildings and those of residential premises is likely to beunhelpful. While the Court of Appeal recognised in Arahanga that burglary of adomestic residence is a significant aggravating factor, a proper analysis flows from a27 Lenihan v R, above n 25, at [27].consideration of all aggravating (and mitigating) factors relevant to gravity and notthrough any presumption arising from one particular feature such as the nature of thepremises entered.28[28] The culpability factors identified in R v Nguyen and the aggravating factors setout in the table above from Lenihan v R significantly overlap. I consider the mostrelevant features of Mr Pompey's offending to be the following:(a) The degree of planning and premeditation: Mr Pompey and his co-offenders deliberately targeted high-end stores with high-value goods.They followed similar offending patterns in each burglary, working as ateam to maximise the amount and value of goods taken.(b) The value of the goods stolen: Mr Pompey and his co-offenders stoleover $170,000 worth of goods in the four Auckland burglaries, plus over$13,000 in the New Plymouth ones. This has flow on effects to thebusiness owners and the community, as referred to by Judge Gibson inthe sentencing notes.29(c) The damage done: Mr Pompey always operated at night and forciblyentered each address, smashing windows and display cabinets,rendering each business inoperable for a period of time.[29] These factors were appropriately referred to by Judge Gibson; he did not err inidentifying the culpability factors. However, after considering the relevant cases,including Ormsby v R, R v Nguyen and R v Andrian (as referred to by Judge Gibson),as well as others, I find that the starting point imposed for Mr Pompey's offending,namely a total of eight and a half years' imprisonment (including uplifts) was too high.[30] I agree with the submission of Mr Leung that Mr Pompey's offending is lessserious than the offending in Ormsby v R, where this Court did not disturb a startingpoint of seven years' imprisonment. In that case, Mr Ormsby was convicted of 1028 Lenihan v R, above n 25, at [28].29 Police v Pompey, above n 2, at [19].charges of burglary involving residential properties, one of which involved aconfrontation with an owner.30 These are aggravating features were not present inMr Pompey's offending. Furthermore, Mr Ormsby had spent some 25 years out of theprevious 27 years in prison for an extensive history of criminal offending, mostlyinvolving burglary and receiving stolen property. Mr Pompey does not have acomparable criminal record (five previous District Court convictions for burglary).Despite this, some recognition must be given to the fact that Mr Pompey's offendinginvolved a much higher total property value than in Ormsby v R, where a total valueof approximately $15,000 was taken.[31] As recognised by Judge Gibson, the starting point must be lower than thatimposed in R v Nguyen.31 In that case, there were 15 charges of burglary, a very highdegree of sophistication and a higher monetary value (in excess of $400,000). Theappeal was dismissed because the final sentence was in range. However, the Court ofAppeal considered that an appropriate starting point would be no higher than eightyears' imprisonment,32 as opposed to the nine years imposed by the sentencing Judge.[32] I find the Sullivan v R and R v Burnie decisions to be the most relevant.33 InSullivan v R, a starting point of six years' imprisonment was upheld in relation to atotal of 16 charges, seven of which were burglary charges relating to commercialpremises (the other charges included three involving unlawful possession of firearmsand ammunition and three of unlawful use of motor vehicles). The aggravating factorsof the burglary offending identified by the Court of Appeal bear similarities to thepresent case: the value of the goods taken in the burglary offending was significant(totalling $240,000), specific commercial premises were targeted, there was wantondamage inflicted during some of the burglaries, and the offending had considerableimpact on the victims.34[33] In R v Burnie, the Court of Appeal did not disturb the sentencing Judge'sstarting point of eight years' imprisonment for eight burglary charges and ten other30 See Ormsby v R, above n 7, at [6].31 R v Nguyen, above n 9.32 R v Nguyen, above n 9, at [25].33 Sullivan v R [2016] NZCA 100; R v Burnie [2007] NZCA 54.34 Sullivan v R, above n 333, at [16].charges, including aggravated assault, assault with a weapon and various driving-related offences. In that case the offending was aggravated as it involved predatoryand opportunistic burglaries of vulnerable elderly people and also involved the assaultof two occupants.35 Mr Pompey's offending is significantly less serious in this case,and he is not being sentenced for other non-burglary offences.[34] Having regard to these cases and the aggravating features of Mr Pompey'soffending, I find that the overall starting point, including both the Auckland and NewPlymouth charges, should be six years' imprisonment. That includes a six-monthuplift, as adopted by Judge Gibson, to reflect Mr Pompey's prior offending, namelyfive burglary convictions and other dishonesty offending. I note also that two of theAuckland burglaries were committed during the time that Mr Pompey was subject toan intensive supervision sentence imposed for a prior burglary conviction.[35] I therefore conclude that the starting point imposed by the sentencing Judge ofeight and a half years' imprisonment was manifestly excessive. The appropriateoverall starting point was six years' imprisonment.Issue (b) – discount for mitigating factors[36] Mr Leung submits that Mr Pompey pleaded guilty at his earliest opportunity;he argues that any delays were solely due to disclosure and/or representation issues asa result of the number of charges and the fact that the charges are spread across NewPlymouth and Auckland.[37] Judge Gibson gave a substantial discount for the guilty pleas, namely 20 percent. I find that there was no error in that approach.[38] Mr Leung further submits that the eight per cent discount allowed for "othermatters" in the s 27 report was inadequate. The Supreme Court in Berkland v R hasrecently provided analysis on when background factors of an offender, referred to by35 R v Burnie, above n 33, at [22].the Court as "section 27 information" are required to be taken into account.36 TheCourt stated:37[108] Where it can be established that background was an operative orproximate cause of the offending it is likely to be a potent sentencing factor.[39] The s 27 report outlines Mr Pompey's somewhat transient upbringing, beforehis family settled in Auckland. It is when he attended high school in Auckland thatMr Pompey began mixing with the wrong crowd, beginning the life trajectory he nowfinds himself on. The report describes him leaving school early and following hisbrother's footsteps into a life of crime. It further notes that Mr Pompey had discussedan association with the Killer Beez gang, though it is unclear whether this is acontinuing affiliation. The report also refers to some drug and alcohol use byMr Pompey, including a methamphetamine addiction, though does not go into anyspecific detail on this or how it is linked to his offending.[40] I further find that there was no error in the approach adopted by Judge Gibsonof giving an eight per cent discount for matters addressed in the s 27 report. LikeJudge Gibson, I note that the report is of a general nature and it is difficult to discernany real proximate link between Mr Pompey's background and his present offending;the report is not particularly helpful.[41] I reject Mr Leung's submission that further discount should be available forMr Pompey's remorse. As set out in the PAC Report, Mr Pompey's risk of reoffendingis high, and he has continued to offend while serving community-based sentences.This shows a disregard for Court-imposed conditions, as well as a lack of remorse.Some of Mr Pompey's current charges were, as I have noted, committed while subjectto a sentence of intensive supervision.[42] I accept that Mr Pompey is young, only 25 years old, and is now the father ofa young baby. I also acknowledge that having spent some time in custody he mayhave had the chance to reflect on his offending and now have some remorse. That isa positive development. However, those factors do not warrant any further discount.36 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [108].37 Berkland v R, above n 36, at [108].[43] I find that Judge Gibson did not err in the discounts he gave for mitigatingfactors.Conclusion[44] The appeal is allowed. I find that a starting point of six years' imprisonmentis appropriate. Taken together with total discounts of 28 per cent, this results in an endsentence of four years and four months' imprisonment.[45] This end sentence is not within the range in which the sentence ofimprisonment could be commuted to one of home detention, therefore I do not needto consider whether a non-custodial sentence would be appropriate.38[46] Mr Pompey's sentence of six years' imprisonment is quashed and replaced withone of four years and four months' imprisonment.[47] Provision will be made for the time Mr Pompey has already served in prisonin terms of future availability for parole, to be assessed by Corrections.__________________________Andrew J38 Sentencing Act 2002, s 15A.