POUWHARE v NEW ZEALAND POLICE [2021] NZHC 1985

POUWHARE v NEW ZEALAND POLICE [2021] NZHC 1985 [3 August 2021]IN THE HIGH COURT OF NEW ZEALANDWHANGANUI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGANUI ROHECRI-2021-483-9[2021] NZHC 1985NGARIMU POUWHAREvNEW ZEALAND POLICEHearing (via AVL): 3 August 2021Counsel: P A Walker for AppellantR N Benic for PoliceJudgment: 3 August 2021JUDGMENT OF CHURCHMAN JIntroduction[1] On 28 April 2021 Mr Pouwhare (the appellant) was sentenced to a term of sixmonths' home detention following his conviction for two charges: one of breaching aprotection order under the Family Violence Act 2018, and one of breach of intensivesupervision conditions.1[2] Mr Pouwhare now appeals his sentence on the basis that it was manifestlyexcessive. In particular, Mr Pouwhare submits that the sentencing Judge made amistake in his assessment of the circumstances, namely by stating that Mr Pouwharewas subject to home detention at the time of offending, while in reality, he was actuallysubject to intensive supervision. It was therefore submitted that, upon commuting the1 Police v Pouwhare [2021] NZDC 7662.sentence of seven months' imprisonment to one of home detention, the Judge shouldhave halved the length of the sentence.[3] Mr Benic, for the respondent, accepts that the Judge erred in the methodologyadopted for the appellant's sentencing, but also submits that the end sentence was notone that was manifestly excessive.[4] For the reasons set out below, I allow the appeal. Counsel are correct inacknowledging that the Judge erred by assuming that Mr Pouwhare was on homedetention when he offended, when he was in fact under intensive supervision. Thismay have influenced the Judge's discretion in imposing the sentence that he did. Also,this does not appear to be a case where a departure from the general practice ofimposing a sentence of home detention equivalent to half the sentence ofimprisonment is warranted. However, I also accept Mr Benic's submission that adiscount of 25 per cent for a guilty plea in these circumstances is too generous, giventhat Mr Pouwhare pleaded guilty on the day of the Judge-alone trial for these charges.Ms Walker submitted that a discount of 20 per cent would be appropriate andemphasised that the change of plea spared the complainant from having to giveevidence. Mr Benic submitted that a discount of 15 per cent would have beengenerous. I agree with Mr Benic.BackgroundFactual background[5] Mr Pouwhare's breach of the protection order against him occurred in July2019. The victim (who Mr Pouwhare had been in a relationship with for eight years,and had two children with), returned from work to her address in Whanganui to findMr Pouwhare bathing one of the children. Mr Pouwhare and the victim began toargue. The victim said to Mr Pouwhare that if he was going to argue then he couldleave. Mr Pouwhare continued to argue with the victim regarding arrangementsrelating to the children. The victim asked Mr Pouwhare to leave repeatedly, and afterthat, he started verbally abusing her. The victim attempted to call the police and wascornered by Mr Pouwhare. The victim punched him as she thought that might deterhim, and again asked him to leave, which he eventually did.[6] Mr Pouwhare's breach of his conditions of intensive supervision occurred on18 December 2019, when he failed to report without reasonable excuse to hisprobation officer.[7] In the Provision of Advice to Courts Report (PAC report) dated 27 April 2021,the report writer noted that Mr Pouwhare had 27 previous convictions spanning backto 2009, including six previous family harm offences, drink-driving and dishonestyoffending, as well as convictions related to non-compliance with Court bail. His riskof re-offending was assessed as medium given his previous convictions and thefrequency of this type of offending, and his risk of harm was also assessed as medium.[8] The report ultimately recommended that Mr Pouwhare be sentenced to homedetention with post-detention conditions and judicial monitoring. In terms ofelectronic-monitoring considerations, Mr Pouwhare proposed to reside with his sisterat an address in Palmerston North. The property had been visited and assessed astechnically suitable to an electronically-monitored sentence. The occupants had allconsented to the address being used.District Court decision[9] The Judge firstly took the lead offence as being the breach of the protectionorder and noted that Mr Pouwhare had been previously convicted of six offences ofthe same kind. The Judge also (incorrectly) stated that Mr Pouwhare was on homedetention at the time of offence. Given those factors, the Judge considered that astarting point of 10 months' imprisonment was appropriate.[10] Turning to mitigating factors, the Judge held that Mr Pouwhare was entitled toa discount of 25 per cent for his guilty plea, and also considered that it was appropriateto give him credit for the fact that there had been no further offending of the typeMr Pouwhare was being sentenced for over the past 18 months, which was deservingof a five per cent discount. This resulted in a total discount of 30 per cent of the10 months' imprisonment.[11] The Judge noted the PAC report, and its recommendation for a sentence ofhome detention, which he agreed with. The sentence of seven months' imprisonmentwas therefore commuted into a sentence of six months' home detention atMr Pouwhare's sister's address in conjunction with special conditions, and post-detention conditions applying for six months after his release.Position of the partiesMr Pouwhare[12] As noted above, counsel submitted that the District Court Judge erred inimposing a sentence that was manifestly excessive due to his assessment of thecircumstances.[13] Counsel referred to s 86(1) of the Parole Act 2002, which states:86 Release date of sentence(1) The release date of a short-term sentence (including a short-termnotional single sentence) is the date on which the offender who is subject tothe sentence has served half of it.[14] Counsel also referred to the case of Brittin v Police, where this Court held thatthe length of a sentence of home detention is generally around half the length of theprison sentence that would otherwise have been imposed, because the released date ofa short-term sentence is the date on which half the sentence has been served.2[15] Counsel acknowledged that the decision as to whether it is appropriate toimpose home detention is at the sentencing Judge's discretion, and that the halving ofa short-term sentence was not automatic – the proper approach required an evaluativeassessment of all the circumstances.3[16] However in this case, the Judge assessed the circumstances in error – as heassumed that Mr Pouwhare was subject to home detention at the time of the offending,when he was in fact subject to intensive supervision. Consequently, counsel submittedthat had the Judge been aware of this, the period of home detention would have likely2 Brittin v Police [2017] NZHC 2410 at [59].3 In support of this proposition, counsel referred to R v Tamou [2008] NZCA 88, R v Bisschop [2008]NZCA 229, and S v R [2011] NZCA 178.been half the seven-month sentence of imprisonment, which would have beenappropriate in the circumstances.The police[17] Counsel for the police submitted that while the Judge erred in his sentencingmethodology, in a number of respects the errors in that methodology were to thebenefit of Mr Pouwhare, which meant that his end sentence was not in fact manifestlyexcessive.[18] It was submitted that: firstly, the adoption of a starting point of 10 months'imprisonment for breaches of a protection order and intensive supervision wasinadequate compared to other cases. While there is no tariff case for breach of aprotection order, counsel referred to the cases of Crean v Police and Robinson v Policeas being analogous in these circumstances.4[19] In Crean, there were two separate breaches of a protection order by theappellant. Both times involved the appellant drinking alcohol at the victim's house,and then beginning to argue with the victim, and then refusing to leave the addressafter being told to do so. In the first breach, the victim left the address herself andcontacted police, who found the appellant hiding under the victim's bed. In the secondbreach, the victim again left the house, but was followed by the appellant for arounda kilometre, until she locked herself into a public toilet until police arrived. On appeal,Brewer J found that concurrent sentences, each with a start point of 15 months'imprisonment and an uplift of four months for previous convictions would reflect thegravity of the offending, given the aggravating features of the offending (includingthat the appellant went to the victim's house and drunk alcohol, that he did not leavewhen asked, and that the police had to be called).5[20] In Robinson v Police, the appellant was at the victim's address in Hamilton (thevictim was his ex-partner). He began verbally abusing a friend of the victim whoarrived at the address. The victim told the appellant to leave but he refused. He used4 Crean v Police [2015] NZHC 3203; Robinson v Police [2019] NZHC 1412.5 At [18]-[19].her phone to call the landlord before the victim grabbed her phone back and called thepolice. The appellant continued to refuse to leave. On appeal, Jagose J upheld the 12-month sentence based on a six-month starting point and a six-month uplift to reflecteight previous convictions for breach of a protection order.[21] Counsel submitted that Mr Pouwhare's offending was similar to Robinson, andthat a starting point of 12 months would have also been appropriate here.[22] Second, counsel submitted that an uplift to the sentence was required to reflectMr Pouwhare's additional charge of breaching intensive supervision. Counsel notedthat Mr Pouwhare stopped reporting to Community Corrections after a month of thatsentence being imposed, and that the PAC reports described his compliance as"extremely poor". While the maximum penalty for that offending was six months,counsel noted that uplifts of two to three months were "routinely imposed", and thatan uplift of three months was appropriate here.[23] Third, counsel submitted that the Judge did not apply an uplift forMr Pouwhare's previous criminal convictions, and that an uplift for the personaldeterrence of the appellant which reflected his long history of repeated breaches ofsentence and Court-imposed orders would have been suitable. Counsel discussed thedelay in proceedings concerning these charges as a result of Mr Pouwhare's lack ofengagement, and that therefore, the Judge was in error by granting a discount of fiveper cent, and instead should have imposed an uplift of 10 per cent for personalaggravating factors.[24] Fourth, the 25 per cent discount for a guilty plea was too generous.Mr Pouwhare pleaded guilty on the day of the Judge-alone trial, and that a "generous"discount in those circumstances would have been 15 per cent at the most.[25] Finally, while accepting that the Judge was in error in commuting the sentenceof home detention in a manner equivalent to 85 per cent of the sentence ofimprisonment (particularly as no reasons were given for the departure from theordinary practice of applying a commuted sentence of home detention at half theequivalent sentence of imprisonment), it was submitted that despite this error inmethodology, the end sentence was not manifestly excessive, because the start and endpoint ought to have been higher in the circumstances.Approach to appeal[26] This appeal is brought under s 250 of the Criminal Procedure Act 2011. Underthis provision, an appeal against sentence is an appeal against a discretion and mustonly be allowed if the Court is satisfied that, for any reason, there was an error in thesentence imposed and a different sentence should have been imposed.6 The focus ison the final sentence and whether that was in the available range, rather than the exactprocess by which it was reached.7Relevant law and analysis[27] Both counsel correctly acknowledged that the Judge erred in stating thatMr Pouwhare offended while on home detention, rather than on intensive supervision.As noted above, the Courts have acknowledged that the length of a sentence of homedetention is generally around half the length of the prison sentence that wouldotherwise have been imposed, unless there are good reasons for departing from thisgeneral practice.8[28] Here, the Judge gave no reasons for his departure. I am not convinced that thisis a case where departure from that practice is warranted. In recent cases where thatdeparture has occurred, and home detention amounting to more than half of thesentence of imprisonment has been imposed, the principles of denunciation anddeterrence were given greater priority due to the seriousness of the offending. Forexample, in Simpson v R (which concerned an aggravated assault) Doogue J imposeda five-month period of home detention for an eight-month prison sentence becauseanything less "would have been insufficient to meet the requirements of denunciationand deterrence".96 Tutakangahau v R [2014] NZCA 279.7 Ripia v R [2011] NZCA 101 at [15].8 Brittin v Police, above n 2, at [59].9 Simpson v R [2019] NZHC 3139 at [53].[29] In Takimoana v R (which concerned a charge of dangerous driving causingdeath), Duffy J considered that a home detention sentence of more than half theimprisonment sentence that she had reached was appropriate because the fact a lifewas lost in the offending warranted a length of sentence that was close to the upperend of the range available for home detention.10[30] Finally, in Metua v R (which concerned sexual offending against children),Hinton J considered that six months' home detention was appropriate in lieu of theeight-month prison sentence due to the nature of the offending.11[31] Breaching a protection order is obviously a serious and concerning offence,but in this case the offending was not so severe as to justify a departure from thepractice of halving the sentencing of imprisonment in order to uphold the principlesof denunciation and deterrence.[32] However, because the Judge has erred in coming to this decision, I need toconsider the decision afresh and determine whether a 10-month starting point was infact warranted.[33] As noted in Jackson v Police and Pahulu v Police, the Courts haveacknowledged that sentences for breaching protection orders vary to a large extent.For that reason, a case-by-case comparison is difficult because the offending is sovariable and is always highly contextual.12[34] I consider that the cases referred to by counsel for the police are more seriousthan the offending in this case. Crean involved two separate breaches, both arguablymore serious than the current case, while Robinson involved abuse of both the victimand her friend. However, this case is more serious than Jackson, which involvedbreach of an order relating to the custody of children, and also more serious thanPahulu, which involved two breaches of a protection order.10 Takimoana v R [2021] NZHC 1028 at [64].11 Metua v R [2018] NZHC 246 at [27].12 See Jackson v Police [2019] NZHC at [43]; and Pahulu v Police [2020] NZHC 153 at [29].[35] I note that in one of the cases cited in Pahulu, Irvine v Police, a 10-monthstarting point was upheld for two breaches of a protection order where the offendercalled the victim 23 times over approximately 48 hours, then went to her address andbanged on her windows at night.13[36] I consider the facts of Irvine v Police to be more serious than those in thecurrent case. Therefore, in these circumstances, a sentence of eight months'imprisonment appears to be more appropriate. Even with an uplift of two months totake into account the breach of intensive supervision this would still only take theadjusted starting point to 10 months.[37] However, counsel for the police are correct in expressing concern in relationto the 25 per cent guilty plea. That is the maximum discount available for a guilty pleaand is more appropriately given in circumstances where the timing of that plea is muchearlier than the day before trial.14 A discount of 15 per cent is more appropriate andthe maximum that Mr Pouwhare could receive, given the lateness of his plea.[38] I agree with the sentencing Judge that the case should be commuted to one ofhome detention, given that this was recommended in the PAC report, and thatMr Pouwhare has an appropriate address. Therefore, the sentence is structured asfollows: an adjusted starting point of 10 months' imprisonment is reduced by20 per cent (to reflect a 15 per cent discount for guilty plea and five per cent discountfor recent good behaviour) to eight months' imprisonment. This is then be commutedto a sentence of four months' home detention.Result[39] The appeal is allowed. The sentence of six months' home detention is replacedwith a sentence of four months' home detention. The sentence of home detention issubject to the same conditions set out in [8]-[10] of the Judge's sentencing notes of28 April 2021.13 Irvine v Police [2017] NZHC 3085.14 Hessell v R [2010] NZSC 135 at [75].Churchman JSolicitors:Wilkinson Smith Lawyers for Policecc: P A Walker, Barrister, Palmerston North for Appellant