POUMAKO v NEW ZEALAND POLICE [2021] NZHC 2147

POUMAKO v NEW ZEALAND POLICE [2021] NZHC 2147 [18 August 2021]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2021-463-85[2021] NZHC 2147BETWEEN LAWRENCE TE PIRIHI POUMAKOAppellantAND NEW ZEALAND POLICERespondentHearing: 17 August 2021(Heard at HAMILTON)Appearances: A MacTavish for Appellant S J Bird for RespondentJudgment: 18 August 2021JUDGMENT OF LANG J[on appeal against sentence]This judgment was delivered by me on 18 August 2021 at 9.30 am.Registrar/Deputy RegistrarDateSolicitors:Crown Solicitor, Rotorua[1] Mr Poumako pleaded guilty in the District Court to a large number of charges involving causing intentional damage, burglary, assault with a weapon, driving offences and common assault. On 24 June 2021 Judge G C Hollister-Jones sentenced him to two years two months imprisonment.1 Mr Poumako appeals against sentence on the basis that errors in the sentencing process led to an end sentence that was manifestly excessive.The charges[2] The charges were laid as a result of a series of incidents that occurred on and around the weekend of 29-30 August 2020.[3] On the morning of 29 August 2020 Mr Poumako stole a Ford Ranger motor vehicle that was parked at an address in Rotorua. He drove in a southerly direction towards Taupo on State Highway 5 in the company of an associate. During that journey he observed a police camera van parked on the side of the road. Heimmediately accelerated and drove the vehicle directly at the camera van. He swerved at the last minute so that he avoided colliding with the van. Rather than drive away, however, he did a U-turn and then deliberately drove his vehicle so as to cause it to collide with the side of the camera van. The camera operator inside the van was left dazed as a result of the collision. Mr Poumako then accelerated away and undertook a series of dangerous manoeuvres, including overtaking vehicles in the face of oncoming traffic.[4] A police officer driving a marked patrol car encountered Mr Poumako's vehicle as it was undertaking these manoeuvres. The officer activated his vehicle's red and blue flashing lights and endeavoured to stop Mr Poumako's vehicle. Mr Poumako responded by attempting to reverse the Ford Ranger motor vehicle into the patrol vehicle. He then sped off with the police officer in pursuit. Mr Poumako managed to pull away from the pursuing patrol vehicle as he was driving at speeds in excess of 160 kilometres per hour.1 New Zealand Police v Poumako [2021] NZDC 12679.[5] The same police officer subsequently parked his patrol vehicle in Kaingaroa Village. Mr Poumako saw the parked vehicle and drove across a grass verge at speed in order to ram it. The officer managed to avoid the collision by driving away. Mr Poumako then undertook an extensive pursuit of the patrol vehicle, reaching speeds of approximately 130 kilometres per hour whilst travelling a very short distance behind the police vehicle. This occurred in part on roads subject to a 50 kilometre per hour speed restriction. The incident ended when Mr Poumako headed back towards Kaingaroa. Before he got there his vehicle left the road and crashed through a fence, damaging both the vehicle and the fence.[6] Over the same weekend Mr Poumako broke into his employer's premises in Rotorua. These had been locked for the weekend. He kicked open the office door and stole the keys to a Nissan truck valued at $30,000. He then drove the vehicle away, but ultimately rendered it undrivable by burning the clutch out. He abandoned the vehicle on the side of the road.[7] Matters came to a head on Monday 31 August 2020 when Mr Poumako was observed walking around Kaingaroa Village yelling abuse and carrying a large machete. He was arrested and taken into custody. He was subsequently admitted to the mental health ward of the Lakes District Hospital. On 2 September 2020, whilst in seclusion, he threatened and then physically assaulted two staff members by punching them on the side of the face with a closed fist. Two days later he punched another patient using a closed fist to the face.The sentence[8] The Judge took the charge of intentional damage as the lead charge. This related to the deliberate ramming of the police speed camera van with the camera operator inside the vehicle. The Judge noted that this incident had left the camera operator dazed. The Judge took a starting point of two years imprisonment on this charge.[9] The Judge then applied an uplift of 18 months imprisonment to reflect the incidents that occurred after Mr Poumako drove his vehicle away from the camera van. The aggravating features of this offending included dangerous driving, theattempt to ram the police patrol vehicle and the pursuit of that vehicle at speeds of up to 130 kilometres per hour. It also involved Mr Poumako crashing and damaging the stolen vehicle.[10] Finally, the Judge applied an uplift of nine months imprisonment to reflect the burglary and theft of his employer's vehicle and a further uplift of three months to reflect the three assaults that occurred after Mr Poumako was admitted to the mental health ward. This produced a sentence of 4 years six months imprisonment before taking into account mitigating factors.[11] The Judge applied a discount of 22.5 per cent to reflect the deprivation Mr Poumako' suffered in his upbringing and mental health issues he was suffering from at the time of the offending. The Judge considered these undoubtedly contributed to the offending. He then applied discounts of three per cent each to reflect remorse that Mr Poumako had expressed and rehabilitative efforts he had undertaken.[12] Finally, the Judge applied a discount of 20 per cent to reflect guilty pleas. Mr Poumako was charged on 1 September 2020 and entered not guilty pleas on 5 November 2020. He then changed his pleas shortly after declining a sentence indication on 3 March 2021.[13] The combined discounts amounted to just over 50 per cent but the Judge elected to restrict the overall discount to one of 50 per cent. This ought to have produced an end sentence of two years three months imprisonment but a mathematical error led the Judge to impose an end sentence of two years two months imprisonment.Grounds of appeal[14] On Mr Poumako's behalf Ms McTavish accepts that the sentencing methodology the Judge adopted was open to him given the fact that several separate incidents had occurred. She also acknowledges that a starting point of two years imprisonment was justified on the charge relating to the intentional collision with the camera van. In addition, Ms McTavish accepts that the twelve month uplift the Judge applied to reflect the theft of his employer's vehicle and the three assault charges was within range. She contends, however, that the uplift of 18 months to reflect theoffending that occurred following the collision with the camera van was manifestly excessive.[15] In addition, Ms McTavish contends the Judge ought to have allowed a discount of 25 per cent, rather than 20 per cent, to reflect Mr Poumako's guilty pleas.[16] On behalf of the Crown Mr Bird contends that, although it was stern, the end starting point of four years six months imprisonment was open to the Judge. He also contends the credit given for guilty pleas was within range.DecisionThe level of uplift to reflect the offending that followed the collision with the speed camera van[17] On Mr Poumako's behalf Ms McTavish referred me to several cases that she contends demonstrate that the overall starting point of three years six months imprisonment on the driving charges was too high.2 For the Crown, Mr Bird refers me to cases that he says justify the starting point the Judge selected. 3[18] The collision with the police camera van could easily have caused very serious injury to the occupant. The offending that followed immediately thereafter involved a prolonged period of very bad driving that placed not only the pursuing police officer but also other road users at risk. It then involved the deliberate attempt to ram the parked police vehicle after Mr Poumako saw it in Kaingaroa Village. This was followed by a concerted effort to ram the police officer's vehicle from the rear whilst travelling at high speeds both in Kaingaroa Village and on the open road. Mr Poumako is extremely fortunate that he did not cause the police officer serious injury as a result of his determined attempts to ram the officer's vehicle with his own vehicle. Other motorists and pedestrians are also fortunate they escaped injury as a result of Mr Poumako's dangerous driving.2 Fortune v Police [2019] NZHC 3500; Manuel v Police [2014] NZHC 2648; R v AJW [2018] NZHC 405.3 Waa v Police High Court Masterton CRI-2004-435-2, 21 May 2004; Roberts-Tuahuru v Police[2019] NZHC 1444.[19] Mr Poumako was subsequently diagnosed as suffering from bipolar affective disorder presenting as a mixed psychotic and affective state. This meant he could present with an abnormal state of mind characterised by mood instability, grandiosity and paranoid delusions. However, Mr Poumako's mental illness was not sufficient to provide a basis for a defence based on insanity. I accept that it would have been open to the Judge to reduce the starting point to reflect the fact that Mr Poumako was clearly mentally unwell at the time of the offending. However, the Judge subsequently recognised this as a mitigating factor for which he applied a discount of 22.5 per cent.[20] The cases to which counsel have referred suggest the combined starting point of three years six months imprisonment was at the upper end of the available range. However, it needs to be borne in mind that in the present case all three attempts by Mr Poumako to cause his vehicle to collide with a police vehicle were deliberate acts rather than acts of recklessness. This is not a case where poor or reckless driving has created the risk of injury to others. Given that factor I am not prepared to say the starting point was outside the available range.Credit for guilty pleas[21] I accept that another Judge may have given a greater discount than 20 per cent to reflect Mr Poumako's guilty pleas because these were delayed in part by the need to ascertain whether he was fit to stand trial and instruct counsel. His counsel also needed to investigate the possibility of an offence based on insanity.[22] A discount of 25 per cent amounts to 13.5 months whereas a discount of 20 per cent amounts to approximately 11 months. The difference may be important when the end sentence is around two years imprisonment because a sentence at that level gives rise to the option of home detention. It also means the offender is automatically released after serving half the sentence rather than being dependent on the decision of the Parole Board.[23] In the present case, however, it might also be said that another Judge would have applied a discount of around 15 per cent rather than 22.5 per cent to reflect Mr Poumako's mental health issues and deprived upbringing. Mr Poumako alsoreceived a gratuitous deduction of one month from his sentence because of the Judge's mathematical error.[24] The ultimate issue in the present appeal is whether the end sentence is manifestly excessive. This requires the Court to take into account not only the offending that flowed from the driving incidents but also the burglary and theft of his employer's vehicle and the three assaults. When these are taken into account I do not consider an end sentence of two years two months imprisonment can realistically be regarded as manifestly excessive.Result[25] The appeal against sentence is dismissed.Lang J