POUPOUARE v NZ POLICE [2022] NZHC 209

POUPOUARE v NZ POLICE [2022] NZHC 209 [17 February 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-000517[2022] NZHC 209BETWEEN MARIA NGAWINI POUPOUAREAppellantAND NEW ZEALAND POLICERespondentHearing: 15 February 2022Appearances: A Spika for AppellantH Brown for RespondentJudgment: 17 February 2022JUDGMENT OF GORDON JThis judgment was delivered by meon 17 February 2022 at 4.00 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors: Public Defence Service (A Spika), AucklandMeredith Connell (Office of the Crown Solicitor), AucklandIntroduction[1] The appellant, Maria Poupouare, was sentenced to 12 months' imprisonmentby Judge A-MJ Bouchier in the Auckland District Court on 17 November 2021, havingpleaded guilty to the following charges:(a) Dishonest use of a document (x 1);1(b) Theft (under $500) (x 15);2(c) Common assault (x 1);3 and(d) Failing to answer District Court bail (x 2).4[2] Ms Poupouare now appeals that sentence as manifestly excessive on thegrounds that:(a) The starting point was manifestly excessive; and(b) The uplifts were too high having regard to the totality of the overalloffending.Factual background[3] On 24 June 2019, Ms Poupouare attended an appointment at Work and IncomeNew Zealand (WINZ). While waiting, she removed a staff member's debit card froma desk. She used the card to make purchases totalling $191.83, that same day.[4] Between 24 June 2019 and 29 March 2021, Ms Poupouare committed 15 thefts,as set out in the table below:1 Crimes Act 1961, s 228(1)(b); maximum penalty seven years' imprisonment.2 Crimes Act, ss 219 and 223(d); maximum penalty three months' imprisonment.3 Crimes Act, s 196; maximum penalty one year's imprisonment.4 Bail Act 2000, s 38; maximum penalty one year's imprisonment or $2,000 fine.Date Victim Context Items Value(rounded)24 June 2019 TS WINZ Debit card $1027 December2019JL PrivateresidenceLawn trimmer $25010 February2020Tai Ping Supermarket Meat products $506 April 2020 Mobil Petrol station Confectionary $2529 June 2020 Briscoes Retailer Bed linen $2403 September2020Martha'sBackyardRetailer Homeware $5029 January2021PanmurePharmacyPharmacy Candle anddiffusers$15020 February2021Paper Power Retailer Pens $8521 February2021Super Liquor Retailer Alcohol $4525 February2021Countdown Supermarket Groceries $2508 March 2021 Acquisitions Retailer Home decor $15012 March2021Smith &Caughey'sDepartmentstorePerfume $24013 March2021Pak 'n' Save Supermarket Meat products $5027 March2021Countdown Supermarket Groceries $10029 March2021Noel Leeming Retailer Bluetoothspeaker$250[5] The goods stolen totalled an approximate value of $1,945.[6] On 10 February 2020, staff of the Tai Ping supermarket pursued Ms Poupouarein order to recover the food she had stolen. She threw rocks at them. No injuries weresustained. This incident gave rise to the assault charge.[7] On 5 December 2019 and 29 October 2020, Ms Poupouare failed to appear atthe District Court to answer bail.District Court decision[8] Judge Bouchier reviewed the pre-sentence report and Provision of Advice tothe Court dated 16 November 2021 and noted the following: the address proposed forhome detention was considered unsuitable due to the lack of co-operation from theoccupant and a sentence of imprisonment was recommended; offending-relatedfactors were identified as current lifestyle, associates, and attitudes; and the risk of re-offending on bail was identified as high. The Judge agreed with the assessment thatMs Poupouare's current offending was a continuation of a lengthy history of offendingrelating to property, dishonesty, non-compliance, driving, violence, alcohol and drugs,in both the Adult and Youth Courts.[9] Ms Poupouare was reported as showing a lack of remorse or insight. In relationto the dishonesty offending, Ms Poupouare was reported as saying that she "just needsit", and in relation to the failure to answer bail and assault, she said that she did notmean to do it.[10] In regard to her domestic and cultural circumstances, the Judge noted thatMs Poupouare is affiliated with Ngāpuhi and Ngāti Whātua; she is aged 33, currentlysingle, and has five children; her parents are very supportive, and take care of herchildren; she was on a jobseeker benefit at the time of the offending, has no previouswork experience and has failed to complete training courses in parenting and computerskills.[11] The Judge considered submissions made on behalf of Ms Poupouare bydefence counsel but disagreed with counsel's submissions regarding length of sentenceand intensive supervision. She considered that it was unrealistic to expectMs Poupouare to pay reparation to the victims.[12] Judge Bouchier identified the dishonest use of a document (the debit card) asthe lead charge and set a starting point of nine months. She then imposed an uplift ofsix months for all the other charges, and an uplift of three months for previousconvictions. The Judge considered that a discount of 25 per cent was appropriate forthe guilty pleas, and that the number of pleas effectively offset the delay in enteringthem. A further discount of one and a half months was given for time spent onelectronically monitored (EM) bail. The end sentence was therefore 12 months'imprisonment.[13] The Judge remitted Ms Poupouare's outstanding fines but declined to add afurther month to the sentence in recognition of the defendant's guilty pleas and limitedmeans.[14] A sentence of 12 months' imprisonment was imposed on the dishonest use ofa document charge, and three months on all other charges, to be served concurrently.Release conditions requiring attendance at rehabilitation and budgeting programmeswere also imposed.Approach on appeal[15] Appeals against sentence may be brought as of right under s 244 of theCriminal Procedure Act 2011 and must be determined in accordance with s 250 of thatAct. An appeal against sentence may only be allowed by this Court if it is satisfiedthere has been an error in the sentence and that a different sentence should beimposed.5 The Court of Appeal has confirmed that a "court will not intervene wherethe sentence is within the range that can properly be justified by accepted sentencingprinciples".6 This Court will therefore only intervene and substitute its own views ifthe sentence being appealed is "manifestly excessive" and cannot be justified by therelevant sentencing principles.7[16] If an appeal is allowed, this Court will substitute a sentence in accordance withthe sentencing principles set out in the Sentencing Act 2002 (the Act).SubmissionsAppellant's submissions[17] Counsel for Ms Poupouare, Mr Spika, submits that theft under $500 should betreated as the lead offence in this case. He argues that 15 instances of theft, totalling$1943.95 in stolen goods, constitutes more serious offending than one instance ofdishonest use of a document to procure goods to the value of $191.83.5 Criminal Procedure Act 2011, ss 250(2) and 250(3).6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].7 Ripia v R [2011] NZCA 101 at [15].[18] Mr Spika refers to Horrell v Police8 and Henry v Police9 (discussed below) toargue that the starting point and uplift should have been lower in this case.[19] Mr Spika acknowledges that Ms Poupouare has a history of shoplifting and apredilection to offend in a specific way. However, with reference to Reedy v Police10and Columbus v R,11 he submits that any uplift must remain proportionate to the fixedstarting point to avoid unfairly punishing an offender twice for the same offending,and suggests an uplift of 10 per cent or one month's imprisonment.[20] In summary, Mr Spika submits that Ms Poupouare's sentence should bestructured as follows:(a) Lead offence identified as theft under $500;(b) Starting point of six months' imprisonment to reflect 15 charges of theftunder $500;(c) Uplift of three to four months to reflect remaining four charges, beingdishonest use of a document, assault, failure to answer bail (x2);(d) Uplift of 10 per cent to reflect relevant previous convictions;(e) Reduction of 35 per cent to reflect guilty pleas and time spent on EMbail (as imposed);(f) End sentence of six – seven months' imprisonment.[21] Ms Poupouare takes no issue with the post-imprisonment conditions.8 Horrell v Police [2016] NZHC 820.9 Henry v Police [2016] NZHC 800.10 Reedy v Police [2015] NZHC 1069 at [19].11 Columbus v R [2008] NZCA 192 at [15].Respondent's submissions[22] The respondent submits that the District Court judge did not err in her approachto sentencing, and that the end sentence imposed is within the available range. Inshort, the respondent says that settled sentencing practice identifies the lead offenceas the most serious charge, and that the starting point while high was within theavailable range of six to 12 months' imprisonment. The uplifts were appropriate andconsistent with comparative case law.AnalysisIdentification of lead offence[23] Judge Bouchier identified the dishonest use of a document as the lead offence.The maximum penalty for this offence is seven years' imprisonment. By contrast, themaximum penalty for theft under $500 is three months' imprisonment. I accept therespondent's submission that the difference in maximum penalty reflects the inherentdifference in seriousness between these types of offences.[24] I also accept the respondent's submissions that charges should not be takentogether as a lead charge. This error was identified on appeal in Henry v Police, whereClark J stated that the "orthodox approach to sentencing [is to] identify a lead charge,impose a sentence that reflect[s] the criminality of that lead charge and then imposesentences for the remaining charges".12 Clark J also observed that "where there is adeparture from the orthodox approach to sentencing there is a greater vulnerability toerror".13[25] In my view, it is not appropriate to group charges together in order to assessthe relative seriousness of the offending. If theft under $500 were taken as the leadoffence in Ms Poupouare's case, the proper approach would be to identify the mostserious instance of offending out of the 15 separate instances as the lead offence. Otheroffending would then be accounted for by an uplift, in accordance with the totalityprinciple. Here, the most serious single instance of theft under $500 by Ms Poupouare12 Above n 9, at [23].13 Above n 9, at [25].involved goods to the value of $250. It cannot be argued that this is more serious thanone charge of dishonest use of a document where $191.83 was obtained, in light of theoverall respective seriousness of the two offences, theft and dishonest use of adocument. The value of the monetary loss is only one factor in a range ofconsiderations relevant to an assessment of dishonesty offending.[26] Further, as the respondent submits, if theft under $500 were taken as the leadoffence, and all 15 charges taken together, the starting point and end sentencesuggested by Mr Spika would exceed the maximum penalty available for the offence.Where concurrent sentences are to be imposed, s 85(4) of the Act provides that "themost serious offence, subject to any maximum penalty provided for that offence, mustreceive the penalty that is appropriate for the totality of the offending".[27] Mr Spika responds by submitting that although a starting point in excess of thethree month maximum would be adopted, the ultimate sentence could be constructedby imposing cumulative sentences of say two months' imprisonment on several of thecharges and making the rest of the sentences concurrent. In that way, no individualsentence would be in excess of the maximum available sentence.[28] There are two difficulties with that submission. First, s 84(1) of the Actprovides that cumulative sentences of imprisonment are generally appropriate if theoffences are different in kind, whether or not they are a connected series of offences.Here the theft charges were all of the same kind.[29] Second, the charge under s 228(1)(b), carrying with it the connotation of fraud,is more serious than the individual charges of theft in this case. Although the value ofthe goods stolen in the 'worst' of the theft charges was $250, compared to $191.83 inthe charge under s 228(1)(b), as noted above, the value of the monetary loss is onlyone of the considerations in a charge under s 228(1)(b).[30] For the above reasons, I consider the District Court Judge was entirely correctwhen she identified the lead offence as dishonest use of a document and set the startingpoint accordingly.Starting point[31] The Judge set a starting point of nine months for the lead offence of dishonestuse of a document, for which the maximum available penalty is seven years'imprisonment.[32] There is no guideline judgment for dishonesty offending. However, the Courtof Appeal in R v Varjan set out the relevant factors to be considered when assessingculpability for dishonesty offending, as follows:14Culpability is to be assessed by reference to the circumstances and such factorsas the nature of the offending, its magnitude and sophistication; the type,circumstances and number of the victims; the motivation for the offending;the amounts involved; the losses; the period over which the offendingoccurred; the seriousness of breaches of trust involved; and the impact on thevictims.[33] I accept that in this case, the offending was opportunistic and unsophisticated,occurred within one day, and the monetary value of the loss was relatively low. Therewas one victim and no breach of trust. The starting point should therefore be set at thelower end of the available range of up to seven years' imprisonment.[34] In Horrell v Police, the appellant obtained a debit card from the victim's homeand used it to obtain over $600 through four transactions, resulting in six charges ofdishonestly taking and using documents to obtain a pecuniary advantage. On appeal,the High Court imposed a starting point of six months' imprisonment.15[35] In Palmer v Police,16 a starting point of nine months was imposed on appeal,where the appellant and his partner had used a debit card belonging to an elderlywoman to withdraw a total of $10,200 over five days.[36] In Te Au v Police, the appellant stole a chequebook and obtained over $2,000through seven transactions. The judge set a starting point of eight months.1714 R v Varjan CA97/03, 26 June 2003 at [22].15 Horrell v Police [2016] NZHC 820.16 Palmer v Police HC Rotorua CRI-2009-463-82, 4 November 2009.17 Te Au v Police HC Nelson CRI-2007-442-19, 10 December 2007 at [15].[37] In Doctor v Police, the appellant stole several pay wave cards and madepurchases with those cards. The total sum involved is not clear. He pleaded guilty tosix charges of using a document for pecuniary advantage and two charges of theft, onerelating to goods valued at over $1,000 and the other relating to goods under $500. Astarting point of 12 months' imprisonment was considered appropriate.18[38] In my view, the offending is most similar to that which occurred in Horrell vPolice which attracted a starting point on appeal of six months' imprisonment. InHorrell, there was one victim, the stolen debit card was used the same day, an associatewas involved, the total value of the transactions was just over $650, and the numberof transactions was low. I consider the offending in Horrell is arguably slightly worsethan the present case, but it provides a reasonable benchmark for this case.[39] It may be that in selecting the starting point of nine months' imprisonment theJudge was led into error by incorrectly adding into her considerations the number ofitems taken in the theft charges. The Judge said:19 Taking the charge under s 228(1)(b) as the lead charge, I am of the viewthat taking into account all of the factors, including the numbers of the itemswhich were taken, [40] The starting point of nine months' imprisonment, by reference to the case lawdiscussed above, was too high. In light of the case law referred to, I consider that astarting point of five months' imprisonment for the charge of dishonest use of adocument is appropriate in Ms Poupouare's case.Uplift for other offending[41] An uplift of six months was imposed to reflect the other offending, comprising15 charges of theft under $500, two charges of failure to answer District Court bailand one charge of assault.[42] In Samuels v Police an uplift of five months for seven charges of theft under$500 and breach of release conditions, was imposed on appeal. The charges related to18 Doctor v Police [2017] NZHC 1084 at [13].19 Police v Poupouare [2021] NZDC 22528 at [8].the theft of goods totalling $553.18 in value and related to shoplifting over a period offour months.20[43] The other cases cited by the respondent concern setting the starting point inrelation to multiple shoplifting offences, rather than imposing an uplift. These casesmay, however, still assist.[44] In Henry v Police the defendant pleaded guilty to 13 charges relating toshoplifting, as well as other charges. Five charges were for theft $500 - $1000, andthe remaining eight were for theft under $500. The total value of the goods stolen was$5,568.23. The sentencing Judge set a starting point of eight months' imprisonmentfor all the shoplifting charges and an uplift of two months for 92 previous dishonestyconvictions. On appeal, the High Court upheld the end sentence "despite the unusualroute by which the Judge reached that outcome".21[45] In McKenzie v Police four charges of theft under $500, relating to shopliftingover a period of four months, attracted a starting point on appeal of six months'imprisonment.22[46] In McMurtrie v Police five charges of theft under $500 and one charge of theft$500 - $1000, relating to shoplifting over the course of one month, attracted a startingpoint on appeal of six months' imprisonment.23[47] With regard to the considerations for dishonesty offending set out inR v Varjan,24 the offending relating to the 15 charges of theft under $500 wasopportunistic and unsophisticated. When questioned, Ms Poupouare stated that shewas motivated by need. In relation to the offending at Briscoes, Ms Poupouare statedthat she stole the items in order to sell them.[48] The monetary value of the loss was relatively low. The goods stolen on the15 separate occasions of theft range in value from $10 to $250, with an average value20 Samuels v Police [2019] NZHC 694.21 Above n 9, at [26].22 McKenzie v Police [2015] NZHC 2742 at [27].23 McMurtrie v Police [2015] NZHC 1031 at [27].24 Above n 13.of around $130 and a total value of approximately $1,950. On four occasions, foodand groceries were taken from a supermarket. On seven occasions small, high-valueitems were taken from retail stores.[49] The majority of the victims of Ms Poupouare's offending are major retailersand supermarkets. Of the 15 victims, only two are private individuals. One of theseis the WINZ staff member whose debit card was taken from their desk, and the otheris a young woman whose lawn trimmer was stolen from her property. The latter hassupplied a Victim Impact Statement stating that she is upset and frustrated and feelsthe theft was an invasion of her privacy.[50] The period of offending covers 21 months, which is a relatively long duration.The time frame indicates an entrenched pattern of offending of this type and isconsistent with Ms Poupouare's previous convictions. For the above reasons, and inlight of the number of charges, it is appropriate for an uplift to be set well above themaximum penalty for an individual instance of theft under $500, which is threemonths' imprisonment.[51] I consider that an uplift of six months is appropriate here, and consistent withrelevant case law. The high number of theft charges, combined with the additionalcharges of assault and failure to answer bail, clearly warrant the uplift which theDistrict Court Judge imposed. When added to the lower starting point for the leadoffence that results in a proper reflection of the overall offending.Uplift for previous convictions[52] Judge Bouchier imposed an uplift of three months to reflect Ms Poupouare'sprevious convictions for similar offending, consistent with s 9(1)(j) of the Act.[53] The Criminal History report shows 63 previous convictions spanning 17 years,including 14 Youth Court notations. In the adult courts, Ms Poupouare has26 convictions for dishonesty offences, including theft or shoplifting under $500(x16), burglary (x4), taking/obtaining/using a bank card for pecuniary advantage (x3)and obtaining by deception (x1). She also has two previous convictions for commonassault, four convictions for failure to answer bail and seven convictions for breachingconditions relating to community work, supervision or home detention.[54] As noted above, the Court in Henry v Police imposed an uplift of two monthsfor 92 previous dishonesty convictions that was in the context of an initial end sentenceof nine months' imprisonment.[55] In Horrell v Police, a three-month uplift was imposed for Mr Horrell's"considerable" criminal history.25[56] In Walsh v Police an uplift of three months was applied on appeal to reflect11 previous dishonesty convictions.26[57] In Rako v R the Court of Appeal stated that "an uplift greater than three months'imprisonment" would have been justified in light of Mr Rako's 17 previousconvictions for dishonesty offences spanning 21 years.27[58] In McKenzie v Police an uplift of one and a half months was applied to reflectMr McKenzie's previous similar offending, although the judgment does not identifyhow many of his previous 39 convictions were dishonesty offences.28[59] In McMurtrie v Police no uplift was applied on appeal for eight previousconvictions on the basis that Mr McMurtrie had never been previously sentenced toimprisonment and that "the progression to the inevitable sentence of imprisonmentdoes, itself, take account of that earlier offending". However, an uplift of one monthwas applied for offending on bail.29[60] The Court of Appeal has addressed the issue of uplift for previous convictionsin the context of dishonesty offending in Columbus v R:3025 Above n 14, at [43].26 Walsh v Police HC Tauranga CRI-2010-470-36, 18 March 2011, at [29].27 Rako v R [2015] NZCA 463 at [9].28 Above n 20.29 Above n 21.30 Columbus v R [2008] NZCA 192 at [15].Sentencing Judges must, however, guard against the risk of undue emphasison past dishonesty convictions that lies in fixing the starting point by imposinga sentence which is primarily a punishment for previous offending ...[61] Ms Poupouare has a long history of similar types of dishonesty offending. Shehas also breached conditions of non-custodial sentences on multiple occasions. Herprobation officer recommends a sentence of imprisonment due to her history of non-compliance with court orders and failure to appear. She has not previously beensentenced to a term of imprisonment. However, she has been sentenced to multiplenon-custodial sentences and sentences of home detention, and these sentences havefailed to deter her from further offending. This pattern of offending and non-compliance warrants an uplift. However, I accept that any uplift must be proportionateto the end sentence. The initial end sentence is 11 months' imprisonment. That ismade up of a five-month starting point on the lead charge with a six-month uplift forthe other offending giving a total of 11 months. I consider that an uplift of two monthsis appropriate for Ms Poupouare's previous convictions. The uplift of three monthsimposed by the Judge was excessive both by reference to its proportion of the sentenceand the fact that this was Ms Poupouare's first sentence of imprisonment.[62] There are then the unchallenged discounts to be applied. The Judge gave aseparate discount of 25 per cent for the entry of guilty pleas and a discount of one anda half months for time spent on EM bail, rather than combining the discounts as onestep.31[63] Ms Brown, for the respondent, properly accepted that whichever methodology(either the correct Moses methodology or the Judge's methodology) is morefavourable to Ms Poupouare is the one that should be adopted.[64] Using the Moses methodology, the adjusted starting point is 11 months (a five-month starting point for the lead offence, plus a six-month uplift for the rest of theoffending). The two-month uplift for prior convictions is properly addressed at steptwo,32 as a percentage of the adjusted starting point. Similarly, a discount for timespent on EM bail should be calculated as a percentage and assessed at step two. Uplifts31 As per Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.32 Stuart v R [2021] NZCA 539 at [15] – [16].and discounts reflecting aggravating and mitigating factors personal to the offenderare set off against each other at step two. In this case, two months (uplift for priorconvictions) is 18 per cent of 11 months. One and a half months (discount for time onEM bail) is 8 per cent of 18 months (to reflect the discount applied by Judge Bouchier).Therefore, an 18 per cent uplift is set off against a 25 per cent discount for guilty pleas,and an 8 per cent discount for time spent on EM bail. This results in an overalldiscount of 15 per cent, which equates to a period of two months (rounded up in favourof Ms Poupouare). The Moses methodology would therefore generate an end sentenceof nine months' imprisonment.[65] Using the Judge's methodology, the adjusted starting point is 13 months(including the two-month uplift for prior convictions). A discount of 25 per cent (forguilty pleas) is three and a half months (rounded up in Ms Poupouare's favour). Thatresults in a sentence of nine and a half months' imprisonment. In her judgment, JudgeBouchier notes that Ms Poupouare spent over three months subject to EM bail butbreached her bail conditions on one occasion by removing her bracelet and leaving theaddress.33 This observation indicates that the Judge considered a discount of one anda half months to reflect the actual time spent on EM bail and intended this discount tobe applied as months, rather than as a percentage of the adjusted starting point.Deducting the one and a half months for time spent on EM bail would give a finalsentence of eight months. As the most favourable outcome for Ms Poupouare is eightmonths' imprisonment, that is the final sentence I will adopt.Result[66] The starting point for the lead sentence was beyond the range that couldproperly be justified by sentencing principles. That has resulted in a sentence that ismanifestly excessive. The appeal is allowed. The sentence of 12 months'imprisonment on the lead charge is quashed and a sentence of eight months'imprisonment is imposed on that charge.33 At [7].[67] The sentences on all the other charges remain at three months' imprisonmentas imposed by the Judge. Those sentences remain concurrent with the lead charge andwith each other.[68] The post-imprisonment conditions remain as imposed by the Judge.______________________________Gordon J