BETWEEN JESSE TYRONE POIHIPI Appellant AND NEW ZEALAND POLICE Respondent
[2024] NZHC 2577
•9 September 2024
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2024-443-23
[2024] NZHC 2577
BETWEEN JESSE TYRONE POIHIPI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 27 August 2024 (via VMR) Appearances:
H M Fairey for Appellant H Bullock for Respondent
Judgment:
9 September 2024
JUDGMENT OF McQUEEN J
[1] On 10 June 2024, in the Hawera District Court, Mr Poihipi was sentenced to two years and eight months’ imprisonment and ordered to pay $750 in reparation for the following charges:
(a)six burglaries;1
(b)common assault under the Crimes Act 1961;2 and
(c)common assault under the Summary Offences Act 1981.3
[2] Mr Poihipi appeals the sentence imposed upon him, submitting that the starting point of 36 months’ imprisonment for the burglary charges was manifestly excessive
1 Crimes Act 1961, s 231(1)(a): maximum penalty 10 years’ imprisonment.
2 Crimes Act 1961, s 196: maximum penalty one year imprisonment.
3 Summary Offences Act 1981, s 9: maximum penalty six months’ imprisonment.
POIHIPI v NEW ZEALAND POLICE [2024] NZHC 2577 [9 September 2024]
and the Court erred in not considering concurrency for the burglary charges. The Crown opposes Mr Poihipi’s appeal and submits that the sentence was within range.
[3]For the reasons below, I consider that Mr Poihipi’s appeal should be dismissed.
Background
The offending
[4] Mr Poihipi’s assault charges arose from his offending on 29 July 2023, and the six burglaries all occurred between 12 and 13 September 2023. Mr Poihipi pleaded guilty to the charges. This description of the offending is drawn from the summary of facts.
[5] On 29 July 2023, Mr Poihipi was in the victims’ motel room in New Plymouth. He was intoxicated. The first victim had at that time recently undergone a caesarean birth. Without warning Mr Poihipi tackled the first victim onto the bed and held her down. Witnesses intervened, Mr Poihipi got off the first victim and she left the room. She told her partner what had happened and asked him to remove Mr Poihipi.
[6] The victim’s partner (the second victim) entered the room. Mr Poihipi grabbed the second victim in a bear hug and threw him across the room. The second victim got to his feet and Mr Poihipi began punching him. The second victim punched back in self-defence. The second victim hit Mr Poihipi’s nose which stunned him, stopping the assault. The second victim then assaulted Mr Poihipi.
[7] Between 12 and 13 September 2023, Mr Poihipi committed multiple burglaries, sometimes with others, in Hawera and Stratford. On separate occasions, Mr Poihipi has entered various properties without permission and has taken items such as household items, a large amount of cash, a laptop, clothing, steel cap boots, a Stihl battery lawn mower, another lawn mower, a blow up pool, a weed eater, an extender brush for cleaning windows, garden shovels, work boots and a tarpaulin. Some of these incidents were caught on CCTV and Police were able to locate some of the items. Mr Poihipi’s fingerprints were found at one of the addresses.
[8] Of those six burglaries, on one occasion Mr Poihipi smashed a window of the car shed and gained entry to the main dwelling house and on another he entered a sleepout occupied by a victim’s daughter. The other burglaries involved entering sheds on the properties.
Criminal history
[9] Mr Poihipi has a lengthy criminal history of 32 previous convictions between April 2018 to December 2023, and several periods of imprisonment. Mr Poihipi has five dishonesty convictions and seven convictions for violence offending including for family violence, common assault and violence against a police officer. A large majority of Mr Poihipi’s other convictions are for breaching bail conditions. A family violence bail report shows that in December 2018 Mr Poihipi was issued with a protection order against him.
Pre-sentence report
[10] A Provision of Advice to Courts (PAC) report was prepared for Mr Poihipi’s sentencing. Mr Poihipi is 34 years old and is of Ngati Kahungunu Ki Heretaunga descent. Mr Poihipi indicated a desire to reconnect with his Māori culture as he felt a sense of disconnection and loss of identity. He wished to attend a tikanga Māori programme to begin this journey. Mr Poihipi advised the report writer that he was previously a recipient of the sickness benefit due to a forklift accident which caused him to experience depression and anxiety. Mr Poihipi self-reported other mental health conditions following what he described as kidnapping by a gang in New Zealand.
[11] Mr Poihipi left New Zealand and moved to Australia when he was 14 years old. In 2019, Mr Poihipi moved back to New Zealand to look after his ill grandfather.
[12] The report writer noted that Mr Poihipi has a concerning level of violence and number of previous convictions since returning to New Zealand. Mr Poihipi has previously been subject to sentences of imprisonment and community work and has been released on bail conditions. The report writer assessed Mr Poihipi as having a high risk of reoffending, which is supported by the level of offending over a short period since his return. The report writer also assessed Mr Poihipi as having a high
risk of harm to others which they say is evident by the level of violence displayed in his previous convictions, especially violence towards women.
[13] The report writer noted that Mr Poihipi struggles with substance abuse, and this contributes towards his lack of impulse control, irrational behaviour and mental health issues. Mr Poihipi told the report writer that he cannot recall what had happened on the days of his offending as he was under the influence of methamphetamine and heroin. Mr Poihipi said that he used substances to “numb the pain away” from his injuries.
[14] Mr Poihipi has no support in New Zealand as his family live in Australia. His grandfather died while Mr Poihipi was incarcerated. Mr Poihipi was therefore unable to provide an address for electronic monitoring purposes. In all the circumstances, including the escalation of and the seriousness of offending, violence, attitude, prior convictions and transient lifestyle, the report writer recommended a sentence of imprisonment was appropriate. The report writer noted that depending on the length of the sentence, it could provide Mr Poihipi an opportunity to address his substance abuse issues and the other factors that contribute to his offending.
The decision under appeal
[15] The Judge considered Mr Poihipi’s assault charges and his history of offending involving violence. The Judge agreed with counsel for Mr Poihipi that the most serious burglary was the incident where Mr Poihipi broke into the main dwelling house.
[16] The Judge acknowledged that it was a positive step that, at a restorative justice meeting, Mr Poihipi had apologised and accepted full responsibility for his actions. Mr Poihipi had explained he was homeless, and that he could not remember doing all the things that he accepted responsibility for.
[17] The Judge noted the victim impact statements and mentioned that the victims of Mr Poihipi’s burglary offending were concerned about having someone on their property where their family was sleeping. Other victims described the damage to their property, the fact they had their belongings stolen when they worked hard for them and their feelings of violation as a result of Mr Poihipi entering their property.
[18] The Judge noted that the PAC report recorded Mr Poihipi’s concerning level of violence, assessed him as having a high risk of re-offending and harm to others, that a sense of entitlement underpins his offending, and notes his drug addiction. The Judge also noted that Mr Poihipi suffered an accident which was traumatic and resulted in anxiety and other self-reported mental health issues.
[19] Against this background and in combination with Mr Poihipi’s criminal history, the PAC report and a mental health screening report, the Judge recorded that he had been reminded of relevant case law by counsel and that three to four years would usually be an appropriate range for sentencing this type of offending. He noted that the prosecution had referred to Harrison v R in which there were four burglaries, and a starting point of four years was regarded as in range.4
[20] The Judge determined that six months for each burglary was appropriate which meant 36 months for the burglaries. The Judge then added three months for the violence offending and a further six months for Mr Poihipi’s history of violent offending and to cover all historical convictions. Before discounts, the sentence was 45 months’ imprisonment. The Judge then granted a maximum guilty plea discount and reached an end sentence of 34 months’ imprisonment, noting that this took into account Mr Poihipi’s health issues that were referred to in the screening report. Mr Poihipi was also required to pay reparation of $750.
Approach to appeal
[21] Sentence appeals are brought under s 244 of the Criminal Procedure Act 2011 and determined in accordance with s 250 of that Act. An appeal against a sentence is an appeal against the exercise of a discretion. For Mr Poihipi to be successful, the Court must be satisfied that there was an error in the sentence imposed upon conviction and a different sentence should be imposed.5 If these factors are not satisfied, the Court does not retain any discretion and must dismiss the appeal.6 When considering whether a different sentence should be imposed, the Court will have regard to the end sentence,
4 Harrison v R [2011] NZCA 80.
5 Criminal Procedure Act 2011, s 250(2).
6 Section 250(3).
rather than the process by which it was reached.7 It is appropriate for the Court to intervene where the sentence being appealed is “manifestly excessive” and is not justified by the relevant sentencing principles.8
[22]As the Court of Appeal recently observed in Te Ao v R:9
[16] ... It is the end sentence which must be shown to be manifestly excessive. It is the end sentence which will be the Court's focus. Where one component of a sentence is criticised, the Court's inquiry, if the criticism is found justified, will be whether the end sentence is nevertheless within the range available to the sentencing Judge.10
[17] We use the term “range” advisedly. Determining a sentence is not a mathematical exercise. It is a judicial evaluation. Different judges could quite properly weigh factors relevant to a sentence differently.
[18] A sentence might lie in a range from lenient to stern and be unimpeachable.
[19] For a sentence to be manifestly excessive it must be beyond the upper end of the range available to the sentencing Judge. In other words, it will be significantly more severe than it ought to have been having regard to the seriousness of the offence and the culpability of the defendant.
[23] The Court cannot ‘tinker’ with a sentence imposed where that sentence is nevertheless in range.11
Parties’ positions
[24] Counsel for Mr Poihipi, Mr Fairey, submits that the starting point of 36 months’ imprisonment for the six burglaries was manifestly excessive, and that the Court erred in not considering concurrency for the burglary charges. Mr Fairey submits that the Judge, having agreed that the burglary where Mr Poihipi broke into the main dwelling house was the most serious and carries a benchmark of six months, should have given sentences of three months for the other burglaries, proportional to their lower degree of seriousness. This would then result in a starting point of 21 months’ imprisonment.
7 Larkin v Ministry of Social Development [2015] NZHC 680 at [26], citing Ripia v R [2011] NZCA 101 at [15]. See also Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
8 Tutakangahau v R, above n 7, at [32]–[36].
9 Te Ao v R [2023] NZCA 327.
10 Tutakangahau v R, above n 7, at [39], citing Green v Police [2014] NZHC 444 at [21].
11 Kay v R [2024] NZCA 1 at [36], citing R v Boyd (2004) 21 CRNZ 169 at [38].
[25] Mr Fairey says that Harrison was not a suitable case for considering totality of sentence given that case concerned four home burglaries (not outhouses) and the value of goods taken was $66,000, which is more than ten times the value of goods in question here. In addition, the burglaries in Harrison were conducted over a month, not over two days as is the case here.
[26] Mr Fairey further submits that from the perspective of Mr Poihipi the burglaries were conducted as a continuous act, unplanned and opportunistic. Therefore, Mr Fairey says that the Court erred in not considering the events as part of a continuum and applying concurrent sentences for the burglaries.
[27] Counsel for the Crown, Ms Bullock, says that a global starting point of three years’ imprisonment was within range, having regard to relevant caselaw.12 She says a cumulative sentence was appropriate given the violence offending. Ms Bullock acknowledges that the appropriate end sentence consistent with s 85 of the Sentencing Act 2002 would be one of cumulative and concurrent sentences but says the end sentence of imprisonment is not one that is manifestly excessive.
Analysis
[28] As set out above, an appellate court will not usually intervene where the end sentence is within the range that can properly be justified on sentencing principles, particularly when any adjustment would be minor. The focus is on the sentence imposed rather than the process by which the sentence was reached.
[29] As submitted by Ms Bullock, this means that it does not matter that the Judge set an overall starting point for the burglary offending as opposed to going through an exercise of setting a sentence for the most serious of the burglary charges and then providing an uplift for the remaining burglary charges. This is consistent with Dunningham J’s observation in Cleghorn v Police that:13
…In the end, however, whether a starting point for sentence on multiple burglaries is arrived at through selecting a lead burglary and then uplifting for
12 Taylor v Police HC Whangarei CRI-2006-488-37, 29 August 2006; and Cleghorn v Police [2018] NZHC 2553.
13 Cleghorn v Police, above n 12, at [29].
the balance, or adopting a global starting point for the total number of burglary charges, the focus must be on whether the sentence as a whole is manifestly excessive.
[30] There is no tariff for burglary because the range of circumstances in which the offence can be committed is so varied.14
[31] Mr Fairey referred me to Harrison and Skipper v R in support of his argument that in those cases there was violence that does not exist in the present case, and so there should be a greater distinction between the respective starting points of four years and four and a half years’ imprisonment in those cases, and Mr Poihipi’s position.15 I accept that Harrison in particular can be distinguished on the facts from the present case but that in itself does not support the argument that the three-year starting point used in the decision under appeal is wrong.
[32] Ms Bullock focused on Taylor v Police as the key comparator case in the circumstances, and I find it to be of greater assistance. Taylor involved an appeal against a starting point of three years six months’ imprisonment for three burglaries of residential dwellings by three co-offenders.16 The dwellings were in reasonably close proximity in a country area. Each case involved a forced entry through a door causing damage to the door and relatively minor thefts of alcohol and other property with a total value of approximately $4,000. The offenders were stopped in a car in the vicinity of the burglaries and made full admissions. All stolen property was recovered.
[33] Ms Bullock submits that the same aggravating features considered by Simon France J in Taylor are relevant here. She emphasises the fact the properties were all residential properties, there were two offenders and some of the offending occurred in the middle of the night increasing the risk of confrontation, two of the burglary offences involved entering into a dwelling house (one the main house and the other a sleepout). Ms Bullock notes that Simon France J considered that as the burglaries were of houses within a targeted area in quick succession, a stern response
14 Arahanga v R [2012] NZCA 480 at [78].
15 Harrison v R, above n 4; and Skipper v R [2011] NZCA 250.
16 Taylor v Police, above n 12.
was required and “[i]t must always be recalled that each venue is a separate offence with separate victims”.17
[34] Here, there were six burglaries rather than three, and two offenders rather than three. While in Taylor all burglaries were of dwelling houses, effectively only two were in the present case. While it appears property was recovered in Taylor, that is not consistently the case here, notably the large amount of cash taken in the incident involving entry into the dwelling house.
[35] Cleghorn is also of some assistance.18 This was a successful appeal where Dunningham J accepted that the starting point of three years’ imprisonment for the burglary that was the subject of the lead charge was too high. Dunningham J described it as having little “that would elevate it beyond a standard burglary, particularly as the jewellery was recovered” and concluded that this burglary would warrant a starting point of no more than two years’ imprisonment.19 The four burglaries all involved entry into a dwelling house and took place during the day. Dunningham J noted that there was no actual violence, nor risk of that and there was only one offender. The key aggravating factors were that there was damage done and property of high value was taken, although it was recovered. Dunningham J concluded that a global starting point of three years and six months was appropriate for the four burglaries.20
[36] Compared to Cleghorn, here there were six burglaries rather than four and two offenders rather than one. As I also noted in comparing the present case to Taylor, only two of the burglaries relate to dwelling houses but a large amount of cash is involved here which was not recovered.
[37] I asked Mr Fairey whether the Judge’s allocation of a six-month sentence to the most serious burglary charge reflected relevant case law. Mr Fairey referred to the application of the principles in Senior v Police but was not specific about its relevance.21 In Senior, a full bench of this Court concluded that there were three
17 At [28].
18 Cleghorn v Police, above n 12.
19 At [30].
20 At [41].
21 Senior v Police HC Christchurch A139/00, 19 December 2000, (2000) 18 CRNZ 340.
categories appropriate for applying tariff sentencing levels for burglary: the first time burglar, recidivist burglary and the spree burglar. The Court also identified a list of features that can be regarded as aggravating the offence of burglary.22 It may be that Mr Fairey wished to advance an absence of such aggravating features in the present case, but this did not assist in comparing the approach taken by the sentencing Judge with other caselaw.
[38] I consider that the starting point of three years and six months, although stern, is within range.
[39] At the hearing Mr Fairey also said that the uplift for assault charges was contested by Mr Poihipi, although this is not apparent from the notice of appeal and the position was contradictory in the written submissions. Mr Fairey submits that the Judge erred in applying such an uplift. He says that the Police were seeking nothing further for the assault charges, recognising as a result of subsequent events that Mr Poihipi suffered significantly when hospitalised following a retaliatory attack on him.
[40] I consider that the uplift of four months’ imprisonment was within range for the two charges of common assault which involved an unprovoked attack on a vulnerable victim as well as a further assault on the victim’s partner when he tried to intervene. I accept that there was a retaliatory attack but do not consider that this in itself is sufficient to conclude that the uplift is inappropriate.
[41] Although the uplift of six months for Mr Poihipi’s previous conviction history was challenged in written submissions, no specific submissions were advanced on this point at the hearing.
[42] I acknowledge that while the Judge could have approached the sentencing exercise through a process of cumulative and concurrent sentences as contemplated by s 85 of the Sentencing Act, I do not consider that the failure to do so resulted in a sentence that is manifestly excessive.
22 At [19].
[43] I conclude that the global starting point of three years’ imprisonment was within range for the burglary offending. The uplifts for the earlier violence offending and Mr Poihipi’s previous convictions were also within range.
[44] Accordingly, the end sentence of two years and eight months’ imprisonment imposed by the District Court is not manifestly excessive. In the words of the Court of Appeal in Te Ao, it is not significantly more severe than it ought to have been having regard to the seriousness of the offences and the culpability of the defendant. The PAC report assesses Mr Poihipi as having a high risk of reoffending and a high risk of harm to others, thus protection of the public is a relevant factor.
Result
[45]For the reasons above, the appeal is dismissed.
McQueen J
Solicitors:
Utting Law Ltd, South Taranaki for Appellant Crown Solicitor, New Plymouth for Respondent
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