POU v NEW ZEALAND POLICE [2016] NZHC 2121

POU v NEW ZEALAND POLICE [2016] NZHC 2121 [7 September 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2016-404-231[2016] NZHC 2121BETWEEN KUEVA POUAppellantAND NEW ZEALAND POLICERespondentHearing: 6 September 2016Appearances: C Wright for AppellantA Park for RespondentJudgment: 7 September 2016JUDGMENT OF LANG J[on appeal against sentence]This judgment was delivered by me on 7 September 2016 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] Mr Pou pleaded guilty in the District Court to charges of injuring with intent to injure, male assaults female (x 3), threatening to kill and breach of a protection order. On 17 June 2016, Judge Dawson sentenced Mr Pou to two years three months imprisonment.1[2] Mr Pou appeals against sentence on the basis that an error occurred during the sentencing process that led to the Judge imposing a sentence that was manifestly excessive.Background[3] All of the charges arose out of a series of incidents that occurred on the morning of 7 June 2015. The complainant in respect of each charge was Mr Pou'sformer partner. He and the complainant had been in a relationship for approximately eight years, and at the time of the offending had three children. There had been difficulties in the relationship for some time, and the couple were living apart. The complainant had obtained a protection order against Mr Pou on 13 February 2014.[4] The incident occurred after a verbal argument that began when thecomplainant declined to make Mr Pou's breakfast whilst he was visiting her at her home. When the complainant went to telephone a friend, Mr Pou began assaulting her repeatedly. Over the next ten minutes or so he punched her numerous times about the face with a closed fist and also dragged her along the floor by her hair. When the complainant attempted to escape through a bedroom window, Mr Pouapplied a chokehold around her neck to stop her from leaving. This left thecomplainant hanging from the window with her feet above the ground.[5] The complainant was eventually able to escape from the house but Mr Pou pursued her and pushed her to the ground. He then began strangling her with both hands, causing her to feel dizzy and short of breath. He also used one hand tosqueeze the complainant's windpipe. He then began to drag her back inside thehouse whilst maintaining a chokehold on her neck. Whilst doing this, he told the complainant he would kill her if the police were called.1 R v Pou [2016] NZDC 11029.[6] Mr Pou's younger sister then arrived and managed to calm the situation down. The complainant used this opportunity to leave the house and call the police using a nearby phone box. As she called the police, Mr Pou approached the phone box and attempted to prevent her from completing the call. He was still at the phone box when the police arrived a few minutes later.[7] The assaults resulted in the complainant sustaining large red scratches and swelling around her neck area and throat, as well as swelling around her eyes and cheeks.The events that occurred in the District Court[8] The material before the Court does not reveal what happened to the charges between June 2015 and 16 February 2016. On 16 February 2016, however, Judge Dawson agreed to a request by Mr Pou for a sentence indication. 2 The Judge took a starting point of three years imprisonment to reflect Mr Pou's culpability on all charges. He then allowed a discount of seven months, or 20 per cent, to reflect guilty pleas provided they were entered the same day. The Judge noted that any further deductions would be subject to a pre-sentence report and further submissions that might be made by counsel.[9] Mr Pou immediately accepted the sentence indication and pleaded guilty tothe charges. He was then remanded on bail for sentence on 7 April 2016. On thatdate he apparently went to the wrong courtroom and a warrant for his arrest wasissued. Later in the day the warrant was cancelled after Mr Pou found his way to thecorrect courtroom. By that stage, however, it was not possible for sentencing toproceed on that day. Mr Pou was therefore further remanded on bail to appear forsentence on 17 June 2016.[10] The case was referred to the Restorative Justice Coordinator after Mr Pou entered his guilty pleas on 16 February 2016. In an affidavit filed in support of the appeal the complainant deposes:2 R v Pou, DC Auckland CRI-2015-004-005732, 16 February 2016.3. I was contacted by someone in late February 2016 and asked if I wanted to attend a restorative justice session. I did not know what restorative justice was at that stage. The caller did not explain anything about it to me. I said that I was not interested as all I understood of it was that I would need to travel to a meeting.[11] It is common ground that the Restorative Justice Coordinator subsequently advised the Registry that the case was not appropriate for the restorative justice process.[12] The complainant confirms in her affidavit that she attended the sentencing hearing on 17 June 2016. She says that by that stage she had discovered what restorative justice was, and how it might help her ongoing relationship with Mr Pou. At court she told Mr Dean, the lawyer then acting for Mr Pou, that she wanted to participate in the restorative justice process with Mr Pou. She says she also told Mr Dean that she wanted to address the Court.[13] When the case was called, Mr Dean applied for a further adjournment. He told the Judge the adjournment was needed for three reasons. First, Mr Pou wishedto undertake a "Man Alive" course as part of his rehabilitation. Secondly, Mr Dean advised the Judge that Mr Pou and the complainant wished to undertake relationship counselling. Thirdly, he told the Judge that the complainant was present and had indicated she wanted to attend a restorative justice conference with Mr Pou.[14] The following exchange then occurred:MR DEAN:Indeed, Sir. Well, it's in those circumstances, Sir, that I ask Your Honour to –THE COURT:No, I'm not going to grant an adjournment.MR DEAN:May it please Your Honour.THE COURT:He's had more than sufficient time and there is no basis for adjourning this.[THE COMPLAINANT]:Am I able to speak?THE COURT:No, you're not. Do the Crown wish to be heard?[15] The Judge then proceeded to sentence Mr Pou. He adopted the same starting point and discount for guilty pleas as he had selected in the sentence indication. Hethen applied a further discount of two months to reflect Mr Pou's remorse. On this issue the Judge observed: I accept that you are exhibiting some remorse, although I suspect it is more for your current circumstances in which you find yourself. I will allow a further two months for that and on the charge of injuring with intent toinjure, you are sentenced to two years and three months' imprisonment. Ground of appeal[16] The sole ground of appeal is that the Judge erred in refusing the application for an adjournment to enable the parties to attend a restorative justice conference. Mr Wright submits that a positive outcome from such a conference would have had a significant effect on the end sentence imposed on Mr Pou. He contends that it may have reduced the sentence of imprisonment to one of two years or less so that the Judge could have considered imposing a sentence of home detention.Was the Judge required to adjourn sentencing to enable a restorative justice conference to be held?[17] Mr Wright's primary argument is that the Judge erred in law because he had no discretion to decline the application for an adjournment. He relies for this submission on s 24A of the Sentencing Act 2002, which provides:24A Adjournment for restorative justice process in certain cases(1) This section applies if—(a) an offender appears before a District Court at any time before sentencing; and(b) the offender has pleaded guilty to the offence; and(c) there are 1 or more victims of the offence; and(d) no restorative justice process has previously occurred in relation to the offending; and(e) the Registrar has informed the court that an appropriate restorative justice process can be accessed.(2) The court must adjourn the proceedings to—(a) enable inquiries to be made by a suitable person to determine whether a restorative justice process is appropriate in the circumstances of the case, taking into account the wishes of the victims; and(b) enable a restorative justice process to occur if the inquiries made under paragraph (a) reveal that a restorative justice process is appropriate in the circumstances of the case.[18] Mr Wright submits that this Court should interpret the requirements of s 24A(2) liberally because it was enacted with the interests of victims in mind. He effectively contends that s 24(2)(b) requires a sentencing court to adjourn a proceeding to enable a restorative justice process to occur whenever it receives advice that a complainant is willing to participate in that process. Mr Wright submits that the Judge was therefore obliged by law to adjourn the proceeding once Mr Dean advised him that the complainant wished to participate in a restorative justice conference with Mr Pou.[19] I do not accept this submission. The wording used in s 24(2)(b) makes it clear that the Court is only required to adjourn a proceeding for a restorative justice process to occur where enquiries carried out under s 24(2)(a) have revealed that such a process is appropriate in the circumstances of the case. In the present case the enquiries carried out under s 24A(2)(a) had already revealed that the restorative justice process was not appropriate because the complainant did not wish to participate. For that reason Mr Dean's advice to the Judge that the complainant hadchanged her mind and now wished to participate in a restorative justice conference did not trigger the obligation to adjourn the proceeding under s 24A(2)(b).[20] It was therefore a matter for the Judge's discretion as to whether to grant theadjournment based on the information he received from Mr Dean at the hearing.Did the Judge err in exercising his discretion not to adjourn the sentencing?[21] Although the Judge did not give reasons for his decision, several factors are likely to have influenced him in making it. First, it is evident from the Judge'sremarks set out above that he considered Mr Pou had already had ample opportunity to engage in the activities in respect of which he sought the adjournment.[22] Secondly, the charges against Mr Pou had been before the Court since June 2015. The Judge would also have been aware that sentencing had already been adjourned on one occasion. He was no doubt concerned to ensure the proceeding was brought to a conclusion.[23] Thirdly, the victim impact statement provided by the complainant did notassist Mr Pou's cause. It read as follows:We have had a lot of past history of Domestic Violence between me andKuera Pou, this is the reason we don't live together, I always hope for achange everytime I come up for visits but it always ends in violence thistime I have had enough. It's not worth the pain and stress as we have 3 kids.Another on the way I need to keep my attention on my kids. I recommend him to go rehab as he is a bad meth/p abuser and to get help for himself. Nobody deserves to live in violence.[24] Furthermore, Mr Pou has an extensive list of previous convictions stretching back to 2006. They include convictions for speaking threateningly, male assaultsfemale and being in possession of cannabis and methamphetamine. He also hasnumerous previous convictions for failing to comply with Court orders. These mayhave led to the Judge being sceptical regarding the practical utility of the restorativejustice process given the nature and seriousness of the present offending.[25] In addition, the Judge intended to apply a discount of two months to reflectMr Pou's remorse. He did so even though he obviously suspected any remorse was principally for the situation in which Mr Pou found himself. The Judge therefore probably considered that a further adjournment would serve little practical purpose in terms of likely discount.[26] The only issue that gives me cause for concern arises out of the fact that theJudge refused the complainant's request that she be permitted to address the Court inrelation to the issue of the proposed adjournment.[27] Any challenge to the exercise of a judicial discretion must establish error of principle. This can include failing to take into account a relevant consideration. In the present case I consider that the complainant's views were clearly relevant to the exercise of the discretion to adjourn the proceeding further. Had the complainant made her views known to a member of court staff, a police employee or a probation officer, that person would have been obliged to refer the request to a suitable person so that a restorative justice conference could be arranged. 3 For that reason the Judge ought to have taken the complainant's views into account when considering the application for an adjournment. Furthermore, he ought to have agreed to the complainant's request that she be given the opportunity to explain why she hadchanged her mind and now considered the restorative justice process could be of benefit to her and her family.[28] Had the complainant been given that opportunity, it is likely she would have told the Judge that in practical terms she has no option but to deal with Mr Pou in the future because he is the father of her children. She may also have told the Judge that restorative justice provided a means by which she and Mr Pou could discuss the manner in which he was to conduct himself in the future. Those considerations were not necessarily directly relevant to the issue of sentence but they were clearly important to the complainant. They were also in the wider interests of thecommunity because it is not in the community's interests for Mr Pou to continue to offend in this way in the future.[29] The complainant may not ultimately have persuaded the Judge that these considerations warranted a further adjournment but that is by no means certain. Had he listened to the complainant, however, the Judge may have been persuaded that her interests outweighed the desirability of disposing of the proceeding without further delay. For that reason I consider the Judge erred in not taking into account the3 Victims' Rights Act 2002, s 9.complainant's views regarding the proposed adjournment. It is now necessary to consider whether that error may have affected the ultimate outcome.Might the error have affected the ultimate outcome?[30] It is obviously impossible to predict whether the Judge's refusal to grant anadjournment would have affected the end sentence the Judge imposed. Mr Wright has nevertheless referred me to decisions of this Court in which remorse and a positive outcome to the restorative justice process have materially reduced the sentence imposed.4 Had the restorative justice process been undertaken in the present case, it would have provided Mr Pou with a further means by which to demonstrate his remorse, acknowledgement of responsibility and desire to act differently in the future. That in turn may have persuaded the Judge to provide him with a greater discount to reflect those factors.[31] I do not consider it practicable to remit the proceeding to the District Court for Mr Pou to be re-sentenced taking into account the outcome of any restorative justice conference that might now be held. Instead I consider the appropriate remedial action is to provide Mr Pou with the additional benefit he may have received if he had participated positively in the restorative justice process.[32] Several factors suggest that any additional discount would have been limited.As the complainant's victim impact statement demonstrates, the present charges are symptomatic of a lengthy history of discord and violence in the relationship. The manner in which Mr Pou reacted to the perceived slight by the complainant on the present occasion suggests strongly that physical violence is his immediate response to any action by her that displeases him. His previous convictions lend weight to that concern. Furthermore, Mr Pou would have participated in the restorative justice process knowing that his performance could materially affect his sentence. This could call into question the genuineness of that performance. The very fact that Mr Pou offended in the way that he did on the present occasion would also cause the Court to regard promises he might make about the future with caution.4 R v Khan HC Rotorua CRI 2009 063 509, 13 August 2010; R v Daljit Singh HC Auckland CRI 2014 004 7419, 14 July 2015.[33] These factors persuade me that it is highly unlikely that the Judge would have reduced the sentence further by more than two months even if Mr Pou had performed creditably at a restorative justice conference. I therefore propose to reduce the end sentence by that amount.Result[34] The appeal is allowed. The sentences of two years three months imprisonment imposed on the lead charges of injuring with intent to injure and assaulting a female are quashed. In their place I substitute concurrent sentences of two years one month imprisonment. All other sentences remain intact.Lang JSolicitors:Crown Solicitor, Auckland