POIHIPI v NEW ZEALAND POLICE [2018] NZHC 1538

POIHIPI v NEW ZEALAND POLICE [2018] NZHC 1538 [26 June 2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2018-409-000045[2018] NZHC 1538BETWEEN PENNY RANGIORA POIHIPIAppellantAND NEW ZEALAND POLICERespondentHearing: 21 June 2018Appearances: J Tupaea for ApplicantS L Dayal for RespondentJudgment: 26 June 2018JUDGMENT OF NICHOLAS DAVIDSON JIntroduction[1] Ms Poihipi was sentenced to 25 months imprisonment on one charge ofburglary and three charges of failing to answer bail.1 She appeals that sentence asmanifestly excessive.The offending[2] The lead charge was a residential burglary in July 2017. During the day andwhile the victim was not at home, Ms Poihipi entered her house through an openwindow. She took property valued at over $12,500, including jewellery, a vacuum1 Police v Poihipi [2018] NZDC 10130.cleaner, clothing, and toiletry items. Ms Poihipi was unknown to the victim.Following her arrest, twice in July 2017 and once in December 2017, Ms Poihipi failedto answer to bail.District Court sentencing[3] The Judge said this was a "serious residential burglary" and that a number ofitems of low financial but irreplaceable sentimental value had been taken from thevictim.[4] Ms Poihipi has no burglary history, but has committed a number of otherdishonesty offences. She has a long history of non-compliance with Court orders,including bail, sentences of supervision, community detention, community work, anddriving disqualifications.[5] The pre-sentence report said that Ms Poihipi is homeless, and pitched a tenteach night close to the City Mission. She has serious substance abuse problems andis in a vulnerable state. The report was pessimistic about her motivation to change herlifestyle. She has five children who live in the North Island, but no productiverelationship with them.[6] The Judge said a community based sentence was not appropriate. Aggravatingfeatures of the burglary were unlawful entry, the loss to the victim, premeditation, andprevious convictions. Citing Arahanga v R, the Judge said low-end residentialburglaries attract starting points between 18 and 30 months imprisonment.2 The Judgetook a starting point of 25 months. For the three other charges, he applied an uplift offour months, and a further three months for her previous convictions. The Judge thenallowed a seven month discount for guilty plea (approximately 22%), which hethought was generous given the delay of seven months before her plea was entered.That left a final sentence of 25 months, which the Judge imposed with a reparationorder of $1300 to meet the victim's insurance excess. That meant she would beeligible for parole after eight and a half months and the Judge stressed the importance2 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.of Ms Poihipi taking part in a drug rehabilitation programme to give her the bestchance before the Parole Board.Jurisdiction and principles on appeal[7] Ms Poihipi appeals as of right.3 This Court will only allow the appeal if it issatisfied that there is an error in the sentence imposed and that an alternative sentenceshould be imposed.4 If the sentence under appeal is justified under sentencingprinciples, this Court will not substitute its own views for those of the sentencingJudge, and will do so only if the sentence is manifestly excessive or inappropriate. Onappeal, the focus is on the sentence imposed rather than the process by which thesentence was reached.5 An error in reasoning does not thus dictate the result on appeal.SubmissionsAppellant[8] Mr Tupaea for the appellant made empathetic and helpful submissions. Hiswork has taken him to the front line with those like Ms Poihipi who have been reducedby drug use and poverty. He submits the starting point was too high, although heaccepts the Judge was correct in referring to the 18-30 month range in Arahanga.In Stepanicic v R, the Court of Appeal adopted a starting point of 24 months whereaggravating features included that there were two burglars, and the victim was athome.6 In Povey v R, a 24 month starting point was taken where there were twoburglars, one of whom had a concealed spear gun.7 Mr Tuapaea says the offending inboth of these was more serious than the present case, and here a starting point of nomore than 22 months was available.[9] Mr Tuapaea says the cumulative sentencing for failing to answer bail chargeswas excessive and the sentences should have been concurrent.3 Criminal Procedure Act 2011, s 244.4 Criminal Procedure Act, s 250.5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].6 Stepanicic v R [2015] NZCA 211,7 Povey v R [2009] NZCA 362.[10] He submits that the Judge should have taken into account Ms Poihipi'swillingness to attend restorative justice by applying a further discount. A letter fromRestorative Justice Services showed that restorative justice was deemed "notappropriate" due to their inability to contact the victim, but Ms Poihipi was willing toface up to the victim and that should be recognised.Respondent[11] Ms Dayal, counsel for the New Zealand Police, submits that the burglaryshould be assessed as serious given the fact that a large amount of property was taken,and then the appellant failed to answer bail on 12 July, 25 July and 4 December 2017.[12] Previous convictions demonstrate a history of dishonesty and poor compliancewith court orders. It is clear that Ms Poihipi was in a vulnerable state and substanceabuse drives her offending. There was not a lot of motivation evident for her tochange, according to the Pre-Sentence Report. There was no EM Bail addressavailable, and apart from that, her ability to comply with a community based sentencewas doubtful.[13] Ms Dayal referred to the need for Ms Poihipi to be held accountable, for asense of responsibility to be instilled in her, to denounce and deter her and others fromthis sort of offending, to sustain a lifestyle and to protect the community because ofher previous dishonesty convictions and the seriousness of this matter.[14] The uplifts were supported, four months for the charges of failing to answerDistrict Court bail, and three months for previous convictions.[15] Ms Dayal says that this was a straightforward burglary, forcibly enteringthrough a bathroom window when the occupants were not present, damaging thewindow. The victim was disturbed and upset by the loss of items of sentimental value.While she was not at home, in this case Ms Dayal emphasises the kind and value ofthe items taken. As to Stepanicic, she notes that in that case there were two burglarycharges and sentences of two years imprisonment were imposed concurrently.[16] Ms Dayal says that s 84 of the Sentencing Act 2002 has application. It reads:84 Guidance on use of cumulative and concurrent sentences ofimprisonment(1) Cumulative sentences of imprisonment are generally appropriate ifthe offences for which an offender is being sentenced are different inkind, whether or not they are a connected series of offences.(2) Concurrent sentences of imprisonment are generally appropriate if theoffences for which an offender is being sentenced are of a similar kindand are a connected series of offences.(3) In determining for the purpose of this section whether 2 or moreoffences committed by 1 offender are a connected series of offences,the court may consider—(a) the time at which they occurred; or(b) the overall nature of the offending; or(c) any other relationship between the offences that the courtconsiders relevant.[17] As to the other charges for which uplift was ordered, they were different inkind and not connected to the lead charge of burglary, and as such a cumulativesentence was available to the Judge. A cumulative sentence provides denunciationand deterrence, and on that basis, the uplifts are supported.[18] The appellant's criminal history is of dishonesty, breach of court orders, andserious driving offences, but it is the repetition rather than the seriousness of theoffending which stands out. It reflects the sorry state to which Ms Poihipi has beenreduced.Analysis[19] The Judge took the orthodox approach to the lead offence with an uplift torecognise the further offending. The four month uplift itself for failing to answer bailwas not excessive given that there were three separate breaches in a long line of similarbreaches. Her criminal history warranted uplift.[20] As to restorative justice, the Courts have remarked that a mere willingness toattend restorative justice will usually mean little unless coupled with other evidenceshowing the offender has taken responsibility for his or her offending and wishes toatone.8 It is the genuine will to engage in a restorative process for the benefit of thevictim and to accept responsibility which counts, otherwise it is opportunistic, to gainsome sentencing advantage. Here the Pre-Sentence Report was pessimistic, sayingthat "her attitudes towards compliance, responsibility, acceptance and the like are farfrom ideal", although it did record she was motivated to combat her serious addictionto synthetic cannabis. The report writer was unable to confirm that the offer forrestorative justice had been made.[21] The starting point adopted by the sentencing Judge was at the higher end. InArahanga, the Court of Appeal refrained from setting a tariff for burglary because thecircumstances of the offence are so varied. The range of 18 to 30 months for"dwelling house burglaries at the relatively minor end of the scale" demonstrates this.That range recognises the aggravating feature of unlawful entry into a dwelling place.The Judge took previous offending into account by a discrete uplift, so the only otheraggravating features were the loss to the victim and premeditation.[22] The conclusion that the offending was premeditated and planned is not obviouson the material before the Court. Ms Poihipi was living rough, and the evidence isthat she was very drunk at the time. She says she remembers nothing. The windowhad been left open, and it appears more likely opportunistic than premeditatedoffending.[23] On the other hand, this was a serious burglary. Over $12,500 worth of propertywas taken, some with significant sentimental value to the victim, a serious aggravatingfactor. Ms Poihipi's culpability in comparison with other burglars is nuanced. Thevalue of property taken is a matter of chance – few burglars once they gain unlawfulentry and take property will pass up the chance to take as much of value as they can.A planned burglary may invoke targeting known property.[24] Otherwise, Ms Poihipi acted alone and she did not use or carry a weapon. Thevictim was not home, and the offending did not happen at night.8 See for example Henare v R [2017] NZHC 2397.[25] Two cases cited in Arahanga as authority for the 18 month low end of the rangewere Wilson v R and Dudley v Police.9 In Wilson, the offender entered a second storeybedroom window at night. The victim was asleep in the bedroom, woke up when theoffender entered, and left without taking any property. A 20 month starting point wasreduced to 18 on appeal. In Dudley, the offender entered a dwelling place at nightwhile the victim was home. She took a backpack, a golf bag, CDs, shoes, a woodenelephant, two watches, a bank card, keys, and a camera. An 18 month starting pointwas adopted.[26] In R v Phillips, a 24 month starting point was upheld where the offenderburgled two residential properties on the same day.10 At one property he took $390worth of property, and at the other $4000 worth.[27] A lower starting point was available, however, 25 months was not manifestlyexcessive or unjust given the broad range of sentence available and the seriousaggravating feature of the value of property taken.[28] Ms Poihipi is in a bad way, and the most important thing for her and society isto address her addiction problems. Reducing the sentence by a few months couldhave the paradoxical effect of delaying her eligibility for parole. As it is, Ms Poihipimight not seem a likely candidate for parole, but a closer eligibility date might giveher some motivation to participate in programmes in prison and address her problems.Conclusion[29] Although the starting point was stern, there was no error in the sentence andthe appeal is dismissed.[30] I have a degree of sympathy for Ms Poihipi, who is in a much-reduced state.She cries out for rehabilitative intervention, and I only hope that with Mr Tupaea'sassistance, and that of Corrections, that she will complete her sentence having madeprogress and having marked out a pathway forward. To return to her former ways, of9 Wilson v R [2012] NZHC 65; Dudley v Police HC Christchurch, CRI-2009-409-1,26 February 2009.10 R v Phillips [2008] NZCA 440.homelessness and addiction, will lead her back to court. If I could identify arehabilitative purpose in reducing the sentence, which has not been reflected in theJudge's thinking, I would have allowed the appeal, but it is simply not identifiable,even with Mr Tupaea's help. I can only ask that the Court's recognition of her plightis referred to Corrections, with Mr Tupaea's emphasis. Ms Poihipi is a problem toherself and Society, and each are best served by rehabilitation, which must includeeconomic assistance and rehabilitation for drug use. Further, although it is not ameasure of sentencing, to allow the appeal to the degree that Mr Tupaea sought, wouldhave a detrimental consequence in terms of her eligibility for parole and that seemscounterproductive to the rehabilitative aim of sentencing.[31] For these reasons, the appeal is dismissed...Nicholas Davidson JSolicitors:Raymond Donnelly & Co., ChristchurchEbborn Law Limited, Christchurch