Pohoiwi v Police

[2025] NZHC 1915

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2025-404-000191

[2025] NZHC 1915

BETWEEN

RANGIMAREA POHOIWI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	7 July 2025
Appearances:	J Schlebusch for Appellant A L Stuart for Respondent
Judgment:	14 July 2025
Reissued:	2 September 2025

JUDGMENT OF MOUNT J

Appeal Against Sentence

This judgment was delivered by me on 14 July 2025 at 12.30 pm,

………………………………… Registrar/Deputy Registrar

Solicitors:

Meredith Connell

POHOIWI v NEW ZEALAND POLICE [2025] NZHC 1915

Introduction

[1]    In July 2024 the appellant Rangimarea Pohoiwi breached a protection order by threatening violence against his partner. This was his tenth breach of a protection order and Judge C M Ryan concluded there was no other option but to sentence him to imprisonment. She sentenced him to 14 months’ imprisonment and declined to impose home detention.1

[2]    Mr Pohoiwi appeals on the ground that the Judge should have imposed home detention.

Background

[3]Mr Pohoiwi is 59 years old and is of Ngāti Porou descent.

[4]    Mr Pohoiwi told Corrections his name has been recorded incorrectly throughout his interactions with the justice system over many decades, and the correct spelling of his name is Rangimarea Pohoiwi. That is how I will refer to him in this judgment.

[5]    A ”Provision of Advice to Courts” or PAC report says Mr Pohoiwi’s early life was fraught with violence and severe abuse by family and other caregivers responsible for his safety. He was neglected and exposed to anti-social behaviour and substance abuse. Like so many young men in similar positions, his life followed a pathway into gang membership and imprisonment. The report states that Mr Pohoiwi remains easily triggered by factors relating to his childhood trauma.

[6]    The report says Mr Pohoiwi places a very high value on the importance of his immediate whānau and has a strong motivation to make a better life for himself and his children. He has immense pride in their success with parenting his sons in a way that has mostly sheltered them from harm and the negative elements of his lifestyle. He appears to be doing his best to break the inter-generational cycle of abuse that has dominated his own life. That is to be commended and encouraged.

1      Police v Pouhiwi [2025] NZDC 8665

[7]    On Friday 12 July 2024 at approximately 8 am, Mr Pohoiwi and his partner got into an argument at home. He became increasingly aggressive towards her and threatened her, shouting “I will drag you into the garage and bash you.”

[8]    The victim left the house to get away from Mr Pohoiwi. He followed her and continued threatening to drag her into the garage and assault her. Neighbours called the police.

[9]    The victim was not the one to call the police, and she did not provide a victim impact statement. She did however support bail for her husband and participate in a restorative justice conference earlier this year. Mr Pohoiwi apologised to her, which she accepted. The victim told the conference she did not want Mr Pohoiwi to be imprisoned. She said there was community support to help him improve, and she wanted him to reconnect with his ancestors and continue the path of healing and therapy he has started.

Offending history

[10]   Mr Pohoiwi has 162 prior convictions, extending to 18 pages, including numerous violent offences. The Judge summarised the conviction history as follows:

(a)Mr Pohoiwi’s driving convictions include convictions for failing to stop and ascertain after an accident; five driving with excess breath/blood alcohol convictions between 1987 and 2016; two dangerous driving convictions; two driving while disqualified convictions; refusing to accompany an enforcement officer and failing to stop when required.

(b)He has breached periodic detention seven times. He has four convictions for failing to answer bail. He has convictions for escaping custody, breaching supervision, breaching intensive supervision four times, and breaching community detention two times.

(c)He has convictions for unlawfully taking motorbikes twice and unlawfully taking motor vehicles three times. He has five convictions for burglary. He has three convictions for receiving stolen goods, and

three convictions for theft. He has a conviction for unlawfully interfering with a motor vehicle, two for entering with intent, and one for unlawfully entering an enclosed yard (in a family violence context).

(d)He has 12 convictions for common assault. He has a conviction for carrying an offensive weapon, 10 convictions for wilful damage, four convictions for disorderly behaviour and two for disorderly behaviour likely to cause violence. He has two convictions for aggravated assault, one of which was with a weapon. Convictions for possession of an offensive weapon, two for assaulting a prison officer, and one for raping a female over the age of 16 involving a weapon.

(e)He has been convicted of assault with intent to injure, indecently assaulting a female over the age of 16, possession of or carrying a firearm, obstructing police, resisting police 13 times, attempting to rob, assaulting police 14 times, speaking threateningly twice, insulting behaviour, insulting behaviour likely to cause violence, and wilful trespass four times.

(f)He has been convicted of contravening a protection order nine previous times, threatened to kill seven times, committed an aggravated robbery, possessed a knife in a public place, committed male assaults female, assaulted a person with a blunt instrument, and twice committed intentional damage.

[11]   The Judge noted that a police family violence bail report records 172 police callouts since 1994. As Her Honour said, that means the police have had to go to an address in which Mr Pohoiwi was visiting or living on 172 occasions because someone notified them of the need for help. There have been three protection orders made against Mr Pohoiwi, two in 2002 and one in 2004. He has been the subject of 10 police safety orders, four in 2024 alone.

[12]   In 2024 he completed an eight-week relapse prevention programme with the Grace Foundation.

PAC reports

[13]   There were two PAC reports. The first, in October 2024, recommended intensive supervision. The report assessed Mr Pohoiwi as a medium risk of reoffending and a medium risk of harm.2

[14]   A second PAC report, dated April 2025, recommended a sentence of home detention at the Grace Foundation. The probation officer said that Mr Pohoiwi had made efforts to engage with a non-violence programme at Man Alive. He attended nine sessions but was exited by 3 July 2024 for having missed too many sessions. He went on to commit the current offence shortly afterwards.

[15]   He was then referred to another stopping violence programme. He was initially assessed on 5 November 2024. On 19 November 2024 there was to be a second assessment, but he did not attend. That was rescheduled for 13 December 2024, but he again did not attend. The stopping violence programme coordinator closed the referral because of Mr Pohoiwi’s non-attendance.

[16]   In January 2025, Mr Pohoiwi came to the stopping violence office. He was told that he needed to be re-referred to Man Alive. He asked his probation officer for another referral, but the probation officer took the view that this was unlikely to be successful, Mr Pohoiwi having been twice exited from the programme.

[17]   Mr Pohoiwi told the report writer that he wanted a better life for himself and a positive future for him and his partner. The records showed that throughout their relationship, they both “reciprocated aggressive arguments against each other.” However, the criminal history and family violence bail reports show that it tends to be Mr Pohoiwi who is the aggressor against his partner. This aggressive dynamic has been mirrored by the way in which one of his sons reacted to Mr Pohoiwi’s partner during a recent family harm incident.

[18]   Mr Pohoiwi told the report writer he was disappointed in himself for his years of negative examples as a father. He said he was a suspended sergeant of arms for the

2 At [10].

Mongrel Mob, having been suspended for beating up the acting president of the Mongrel Mob.

[19]   The Grace Foundation supported Mr Pohoiwi. The Judge accepted that he had completed a “modified and significantly shorter” stopping violence programme with the Grace Foundation, about half the length of standard programmes that people usually complete. The Foundation told the report writer that Mr Pohoiwi had reengaged with them, they were aware of his current situation, and they were willing to give him another chance to reside with them on an EM sentence. The proposal was that Mr Pohoiwi could live at a gated address run by the Foundation. I understand the gatehouse is staffed by a security company which visits the addresses frequently. There is a “sign in / sign out” system for occupants and visitors, with security cameras in  place.  No  female  visitors  are  allowed  on  site.  If  granted  home  detention, Mr Pohoiwi would have to remain at that address.

[20]   Grace Foundation director, David Letele agreed that Mr Pohoiwi would need a stopping violence programme. He was aware of Mr Pohoiwi’s past involvement with gangs and his relationship with the victim.

[21]   The report writer in the second PAC report recommended home detention to restrict Mr Pohoiwi’s movements and mitigate further emotional harm to the victim. The report writer recommended an order to attend and complete a stopping violence programme to address the underlying issues, and judicial monitoring to hold him to account.

Response to past sentences

[22]   Over the years, judges have imposed therapeutic sentencing options to support Mr Pohoiwi’s attempts to change. Unfortunately, further offending followed.

[23]   For example, he was given home detention in 2009 for his second, third, fourth and fifth breaches of protection orders. For the sixth and seventh breaches of a protection order, he was sentenced to intensive supervision for a year and community work. He then threatened to kill with a firearm. He was sentenced to community

detention   as  a  result.     He breached community detention twice, including a representative charge.

[24]   For Mr Pohoiwi’s eighth breach of a protection order, he was given intensive supervision. He then breached that sentence of intensive supervision .

[25]   For his ninth breach of a protection order, he was given sentences of community work and intensive supervision for 18 months. After the completion of that sentence, he reoffended, including threatening to kill, committing disorderly behaviour likely to cause violence and possessing an offensive weapon (family violence) in 2023.

Decision under appeal

Starting point

[26]   The Judge adopted a starting point of 15 months’ imprisonment. The appellant accepts this starting point was within the available range for a tenth breach, and that the Judge’s analysis of the starting point was fair.

[27]   For completeness, her Honour arrived at the starting point by first observing that the sentencing methodology for repeat breaches of a protection order differs from the usual sentencing methodology. Where there have been previous breaches of a protection order, this will normally be taken into account at step one of the sentencing calculation as a factor relevant to the offending.3

[28]   Her Honour referred to Tolliver v Police,4 and Tetau v Police.5 In Tolliver, Blanchard J adopted a starting point of 14 months’ imprisonment for a tenth breach of a protection order. This case was also a tenth breach of protection order case. However, the Judge adopted a 15-month starting point here because Tolliver involved a telephone voicemail message whereas this was a face-to-face confrontation.

3      Mitchell v R [2013] NZCA 583, (2013) 29 FRNZ 498 at [12]; and Mitchell v R [2022] NZCA 159, [2022] NZFLR 291 at [50].

4      Tolliver v Police [2024] NZHC 3624.

5      Tetau v Police [2015] NZHC 1284.

Personal factors

[29]   The appellant also does not dispute the adjustments made for personal factors and accepts the end sentence was within range, although stern. The Judge applied an uplift of four months to reflect Mr Pohoiwi’s 162 prior convictions and his 172 family violence notations. She deducted three months for the guilty plea, one and a half months for Mr Pohoiwi’s attempts at rehabilitation and for his participation in the restorative justice conference. This resulted in an end sentence of 14 and a half months’ imprisonment, which she rounded down to 14 months’ imprisonment. The Judge was satisfied this was consistent with the approach of Blanchard J in Tolliver.

Home detention

[30]   The focus of the appeal is on the Judge’s decision to decline to impose a sentence of home detention.

[31]Her Honour said it counted in favour of home detention that:

(a)There had been a gap of some five years between the last breach of a protection order and the present breach.

(b)Mr Pohoiwi had the support of the Grace Foundation, who were prepared to ensure he underwent intensive stopping violence programmes under their supervision and under the supervision of a probation officer.

(c)Judicial monitoring of the process and the likelihood of imprisonment would provide a further incentive to comply.

[32]On the other hand, her Honour observed that:

(a)During the five-year period without a breach of protection order conviction, Mr Pohoiwi continued to commit other offences including further violent offending.

(b)Mr Pohoiwi had been given many opportunities to complete the stopping violence programme with Man Alive and did not complete that programme. She observed that he did manage a short programme with the Grace Foundation, but as both the Grace Foundation and the report writer acknowledged, that programme was not sufficient.

(c)Numerous attempts at therapeutic sentences in the past had not stopped Mr Pohoiwi from going on to offending against his partner. Police had been called 172 times over the last decade in relation to family violence, the greatest number of callouts the Judge had seen.

(d)Mr Pohoiwi has in the past been sentenced to home detention but continued to offend.

The appeal

[33]   The appellant submits her Honour did not give sufficient weight to the following factors:

(a)Although Mr Pohoiwi has a lengthy history, it has been de-escalating in seriousness and intensity.

(b)Although this was Mr Pohoiwi’s tenth breach of a protection order, there was a five-year gap to the most recent breach, and a nine year breach to the offence before that.

(c)The Court “overemphasised” the family violence occurrences, particularly where the more recent callouts were disputes involving Mr Pohoiwi’s son in relation to alcohol.

(d)The positive restorative justice report and the victim’s views.

(e)The availability of a suitable address with rehabilitative programmes available at the Grace Foundation.

[34]   The appellant submitted the Court had given insufficient weight to the gap to Mr Pohoiwi’s other previous offending, and the time on remand and on restrictive bail conditions.

[35]   The respondent acknowledged that five years had passed since Mr Pohoiwi’s last conviction for breaching a protection order. However, Ms Stuart observed that Mr Pohoiwi had committed other family violence offending during that period. In 2023, Mr Pohoiwi was convicted of possessing an offensive weapon, noted as being a family violence offence. In the four months before the current offending, Mr Pohoiwi was involved in four family harm callouts and there was a further family harm callout after the offending, in January 2025. The respondent submitted that the Judge was correct to emphasise those callouts given that they reflect the ongoing risk that he faces. In response to the appellant’s submission that the more recent callouts arose in the context of alcohol use by his son, the respondent submitted that even if those callouts were put to one side, the overall pattern supported the Judge’s conclusion about risk.

[36]   The respondent submitted that Mr Pohoiwi’s time in custody will form part of the sentence calculation, and that his time on bail does not justify imposing home detention.

[37]   The respondent acknowledged that the victim’s views and the restorative justice process are relevant factors.   However, the victim’s continued support of   Mr Pohoiwi, despite his offending, highlights a need for a deterrent approach by the Court to reduce the risk of further offending against her.

[38]   Finally, the respondent submitted the Court was correct to assess the option of a further stopping violence programme with some caution given Mr Pohoiwi’s recent failure to engage in the Man Alive stopping violence programme.

Assessment

[39]   The decision whether to “commute” a short-term sentence of imprisonment to home detention is an exercise of judgment in the context of each case, informed by the statutory purposes and principles. As the Court of Appeal said in Palmer v R:6

[19] … As William Young P pointed out in R v Vhavha, there is nothing in the Sentencing Act 2002 to suggest a presumption for or against commutation, either generally or for particular types of offence. The decision calls for the case by case exercise of judgment against the statutory principles and purposes of sentencing. Those principles and purposes sometimes point, as here, in opposing directions, meaning that the sentencing judge is called upon to assess whether home detention can respond adequately to the seriousness of the offending. As the Court explained in R v D (CA253/2008), it can be very difficult in a marginal case to articulate reasons for preferring one approach to another. In consequence, the margin of appreciation extended to sentencing judges is usually significant.

[40]   Here, the Judge accurately identified the factors that went both ways and concluded:7

[59] Regrettably, the time has come to adopt a sentence of deterrence and denouncement, which protects the community and the victim and holds Mr Pouhiwi accountable. The least restrictive outcome appropriate in the circumstances of this case is imprisonment.

[41]   As against that, the report-writer of the 2024 PAC report said a sentence of imprisonment would be a setback to the progress Mr Pohoiwi had made to that point, and:

Given that unresolved trauma is the most likely trigger for his aggression, increased punitive responses are unlikely to improve his behaviour and imprisonment is not a deterrent for him. A rehabilitative community-based sentence is recommended so that Community Corrections can continue to support him with his counselling and programmes.

[42]   These appear to be reasonable and realistic observations by the report-writer. Arguably what is required to keep the community safer, to support the victim, to break the cycle of abuse, and to help prevent future offending, lies in the work Mr Pohoiwi has been trying to do with the support of his partner and whānau to address the

6      Palmer v R [2016] NZCA 541 (footnotes omitted) citing R v Vhavha [2009] NZCA 588 at [29] (this was in dissent but this point was later adopted in Osman v R [2010] NZCA 199 at [20]); and R v D (CA253/2008) [2008] NZCA 254 at [66].

7      Police v Pouhiwi, above n 1.

underlying trauma and re-wire his responses to the triggers when they come. The report-writer may well be correct that imprisonment will only set that progress back. His partner, the victim, is clearly of that view. The proposal for home detention at the Grace Foundation, with the associated support structures, was worthy of serious consideration for all those reasons.

[43]   The problem, as Mr Schlebusch acknowledged, is that we are now so far down the track and so many attempts at therapeutic outcomes have not been sufficient to avoid further offending. The Judge carefully laid out the history of Mr Pohoiwi’s interactions with the justice system and the ineffectiveness of past attempts to break the entrenched cycle of Mr Pohoiwi’s life, despite the progress that appears to have been made in recent years. She weighed the factors for and against home detention and she exercised her judgment taking into account the statutory requirements.

[44]   I am satisfied that the Judge considered and addressed the factors identified by the appellant. The conclusions she reached as to weight were available to her. I do not interpret the Judge as having any great confidence that a sentence of imprisonment will give a better chance at a successful outcome for Mr Pohoiwi and his whānau than the alternative. But the view she “regrettably” came to, that imprisonment was the least restrictive outcome appropriate in the circumstances, was available to her.

[45]There being no error in the Judge’s approach, the appeal is dismissed.

Mount J