Poihipi v Police

[2018] NZHC 1538

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-000045 [2018] NZHC 1538

BETWEEN

PENNY RANGIORA POIHIPI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

21 June 2018

Appearances:

J Tupaea for Applicant

S L Dayal for Respondent

Judgment:

26 June 2018

JUDGMENT OF NICHOLAS DAVIDSON J

Introduction

[1]        Ms Poihipi was sentenced to 25 months imprisonment on one charge of burglary and three charges of failing to answer bail.1 She appeals that sentence as manifestly excessive.

The offending

[2]        The lead charge was a residential burglary in July 2017. During the day and while the victim was not at home, Ms Poihipi entered her house through an open window. She took property valued at over $12,500, including jewellery, a vacuum

1      Police v Poihipi [2018] NZDC 10130.

POIHIPI v NEW ZEALAND POLICE [2018] NZHC 1538 [26 June 2018]

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 failed to answer to bail.

District Court sentencing

[3]        The Judge said this was a “serious residential burglary” and that a number of items of low financial but irreplaceable sentimental value had been taken from the victim.

[4]        Ms Poihipi has no burglary history, but has committed a number of other dishonesty offences. She has a long history of non-compliance with Court orders, including bail, sentences of supervision, community detention, community work, and driving disqualifications.

[5]        The pre-sentence report said that Ms Poihipi is homeless, and pitched a tent each night close to the City Mission. She has serious substance abuse problems and is in a vulnerable state. The report was pessimistic about her motivation to change her lifestyle. She has five children who live in the North Island, but no productive relationship with them.

[6]        The Judge said a community based sentence was not appropriate. Aggravating features of the burglary were unlawful entry, the loss to the victim, premeditation, and previous convictions. Citing Arahanga v R, the Judge said low-end residential burglaries attract starting points between 18 and 30 months imprisonment.2 The Judge took a starting point of 25 months. For the three other charges, he applied an uplift of four months, and a further three months for her previous convictions. The Judge then allowed a seven month discount for guilty plea (approximately 22%), which he thought 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 reparation order of $1300 to meet the victim’s insurance excess. That meant she would be eligible for parole after eight and a half months and the Judge stressed the importance

2      Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.

of Ms Poihipi taking part in a drug rehabilitation programme to give her the best chance 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 is satisfied that there is an error in the sentence imposed and that an alternative sentence should be imposed.4 If the sentence under appeal is justified under sentencing principles, this Court will not substitute its own views for those of the sentencing Judge, and will do so only if the sentence is manifestly excessive or inappropriate. On appeal, the focus is on the sentence imposed rather than the process by which the sentence was reached.5 An error in reasoning does not thus dictate the result on appeal.

Submissions

Appellant

[8]        Mr Tupaea for the appellant made empathetic and helpful submissions. His work has taken him to the front line with those like Ms Poihipi who have been reduced by drug use and poverty. He submits the starting point was too high, although he accepts 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 where aggravating features included that there were two burglars, and the victim was at home.6 In Povey v R, a 24 month starting point was taken where there were two burglars, one of whom had a concealed spear gun.7 Mr Tuapaea says the offending in both of these was more serious than the present case, and here a starting point of no more than 22 months was available.

[9]        Mr Tuapaea says the cumulative sentencing for failing to answer bail charges was 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’s willingness to attend restorative justice by applying a further discount. A letter from Restorative Justice Services showed that restorative justice was deemed “not appropriate” due to their inability to contact the victim, but Ms Poihipi was willing to face up to the victim and that should be recognised.

Respondent

[11]      Ms Dayal, counsel for the New Zealand Police, submits that the burglary should 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 compliance with court orders. It is clear that Ms Poihipi was in a vulnerable state and substance abuse drives her offending. There was not a lot of motivation evident for her to change, according to the Pre-Sentence Report. There was no EM Bail address available, and apart from that, her ability to comply with a community based sentence was doubtful.

[13]      Ms Dayal referred to the need for Ms Poihipi to be held accountable, for a sense of responsibility to be instilled in her, to denounce and deter her and others from this sort of offending, to sustain a lifestyle and to protect the community because of her previous dishonesty convictions and the seriousness of this matter.

[14]      The uplifts were supported, four months for the charges of failing to answer District Court bail, and three months for previous convictions.

[15]      Ms Dayal says that this was a straightforward burglary, forcibly entering through a bathroom window when the occupants were not present, damaging the window. 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 of the items taken. As to Stepanicic, she notes that in that case there were two burglary charges 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 of imprisonment

(1)Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.

(2)Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.

(3)In determining for the purpose of this section whether 2 or more offences 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 court considers relevant.

[17]      As to the other charges for which uplift was ordered, they were different in kind and not connected to the lead charge of burglary, and as such a cumulative sentence was available to the Judge. A cumulative sentence provides denunciation and deterrence, and on that basis, the uplifts are supported.

[18]      The appellant’s criminal history is of dishonesty, breach of court orders, and serious driving offences, but it is the repetition rather than the seriousness of the offending which stands out. It reflects the sorry state to which Ms Poihipi has been reduced.

Analysis

[19]      The Judge took the orthodox approach to the lead offence with an uplift to recognise the further offending. The four month uplift itself for failing to answer bail was not excessive given that there were three separate breaches in a long line of similar breaches. Her criminal history warranted uplift.

[20]      As to restorative justice, the Courts have remarked that a mere willingness to attend restorative justice will usually mean little unless coupled with other evidence

showing the offender has taken responsibility for his or her offending and wishes to atone.8 It is the genuine will to engage in a restorative process for the benefit of the victim and to accept responsibility which counts, otherwise it is opportunistic, to gain some sentencing advantage. Here the Pre-Sentence Report was pessimistic, saying that “her attitudes towards compliance, responsibility, acceptance and the like are far from ideal”, although it did record she was motivated to combat her serious addiction to synthetic cannabis. The report writer was unable to confirm that the offer for restorative justice had been made.

[21]      The starting point adopted by the sentencing Judge was at the higher end. In Arahanga, the Court of Appeal refrained from setting a tariff for burglary because the circumstances 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 other aggravating features were the loss to the victim and premeditation.

[22]      The conclusion that the offending was premeditated and planned is not obvious on the material before the Court. Ms Poihipi was living rough, and the evidence is that she was very drunk at the time. She says she remembers nothing. The window had been left open, and it appears more likely opportunistic than premeditated offending.

[23]      On the other hand, this was a serious burglary. Over $12,500 worth of property was taken, some with significant sentimental value to the victim, a serious aggravating factor. Ms Poihipi’s culpability in comparison with other burglars is nuanced. The value of property taken is a matter of chance – few burglars once they gain unlawful entry 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. The victim 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 range were Wilson v R and Dudley v Police.9 In Wilson, the offender entered a second storey bedroom window at night. The victim was asleep in the bedroom, woke up when the offender entered, and left without taking any property. A 20 month starting point was reduced to 18 on appeal. In Dudley, the offender entered a dwelling place at night while the victim was home. She took a backpack, a golf bag, CDs, shoes, a wooden elephant, two watches, a bank card, keys, and a camera. An 18 month starting point was adopted.

[26]      In R v Phillips, a 24 month starting point was upheld where the offender burgled two residential properties on the same day.10 At one property he took $390 worth of property, and at the other $4000 worth.

[27]      A lower starting point was available, however, 25 months was not manifestly excessive or unjust given the broad range of sentence available and the serious aggravating feature of the value of property taken.

[28]      Ms Poihipi is in a bad way, and the most important thing for her and society is to address her addiction problems. Reducing the sentence by a few months could have the paradoxical effect of delaying her eligibility for parole. As it is, Ms Poihipi might not seem a likely candidate for parole, but a closer eligibility date might give her 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 and the 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’s assistance, and that of Corrections, that she will complete her sentence having made progress and having marked out a pathway forward. To return to her former ways, of

9      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 a rehabilitative purpose in reducing the sentence, which has not been reflected in the Judge’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 plight is referred to Corrections, with Mr Tupaea’s emphasis. Ms Poihipi is a problem to herself and Society, and each are best served by rehabilitation, which must include economic assistance and rehabilitation for drug use. Further, although it is not a measure of sentencing, to allow the appeal to the degree that Mr Tupaea sought, would have a detrimental consequence in terms of her eligibility for parole and that seems counterproductive to the rehabilitative aim of sentencing.

[31]For these reasons, the appeal is dismissed.

………………………………………………..

Nicholas Davidson J

Solicitors:

Raymond Donnelly & Co., Christchurch Ebborn Law Limited, Christchurch