Poipoi v Police
[2021] NZHC 2496
•22 September 2021
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2021-454-24
[2021] NZHC 2496
BETWEEN BISHOP BAYDEN POIPOI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 22 September 2021 Counsel:
J A Younger for Appellant
E R Pairman for Respondent
Judgment:
22 September 2021
JUDGMENT OF SIMON FRANCE J
[1] Mr Poipoi appeals a final sentence of 29 months’ imprisonment imposed in relation to a range of offences, the most serious of which were two charges of burglary.1 The charges were:
(a)burglary (x2);
(b)breach of release conditions (x2);
(c)theft;
(d)receiving;
(e)unlawfully taking a vehicle;
1 Police v Poipoi [2021] NZDC 14967.
POIPOI v NEW ZEALAND POLICE [2021] NZHC 2496 [22 September 2021]
(f)possession of offensive weapon (knuckleduster);
(g)driving a vehicle in a dangerous manner (x2);
(h)failing to stop (x2); and
(i)failure to answer bail.
[2]The appeal challenges both the starting points and the mitigation discounts.
Starting point
[3] The District Court took a domestic burglary as the lead offence. This involved entering the house and then spray painting CCTV camera lenses and removing the associated recording device. A number of items were piled up but seemingly not taken. A motorbike was taken but responsibility for that is not alleged against Mr Poipoi. For the offence the Judge took a starting point of 20 months.
[4] The second burglary was of a church. It was Christmas time and Mr Poipoi and others stole Christmas food parcels from a charitable organisation linked to the church. Mr Poipoi’s role was the lesser and he says he was unaware of the church context. The monetary value represented in reparation was $1,000. The aggravating context to the offending is obvious. The Court added six months2 meaning a total starting point for the burglaries of 26 months. Although issue is taken with this, I consider it a clearly available assessment for two burglaries.3
[5] Issue is also taken concerning the approach to totality, the Judge having made a totality adjustment for the two burglaries but not having overtly considered it again once the overall 36 month figure was identified. This no doubt was because the burglaries had already been subject to an adjustment. If the sentencing Court has not overtly addressed totality at the end of determining starting points, this may or may
2 This was an adjusted uplift, the Court considering that standing alone the second burglary would attract 15 months.
3 Arohanga v R [2012] NZCA 480 at [78] notes 18 months to two years starting points to be common for dwelling house burglaries at the relatively minor end.
not be called an error, but it will only be a relevant error if in fact the total period of imprisonment identified in the starting point is excessive.
[6] Here the relevant starting point is 36 months. Given the number and range of offences, including two which in themselves merited 26 months, it is unlikely to be excessive or unavailable and therefore require a totality adjustment. The driving offending was dangerous, and on separate days involved fleeing from the police with speeds twice the speed limit. Oncoming traffic was forced to take evasive action including driving off the road. There are also, as noted, two separate offences involving unlawful possession of cars. Overall, the 10 months extra was in my view appropriate, and the combined total well within range.
[7] I do not consider a four month uplift for past offending was required. Mr Poipoi had previously had a sentence of home detention, and then more recently a sentence of five months’ imprisonment, his first actual such sentence. There are no previous convictions for burglary, and an uplift almost the same length as the only previous sentence of imprisonment was not required.
[8] However, one other matter requires noting. Much of the 10 month offending was while on bail. The Judge, incorrectly, reduced the guilty plea credit by five per cent to reflect this. It is an error in approach that is capable of affecting the outcome by altering the mathematics. Offending on bail is an aggravating feature of the offending and should be reflected in the starting point. I would here add one month for this factor (recognising two months to also be available). The final outcome is therefore a starting point of 37 months’ imprisonment.
Discounts
[9] Mr Poipoi was entitled to a full 25 per cent discount for his guilty plea and on appeal an adjustment is required to give effect to that.
[10] The other issue is personal circumstances. Mr Poipoi is 26 years old with many past offences, albeit none particularly serious (as is reflected in the past sentences already described). The home detention sentence related to the selling of methamphetamine, and with that one identifies a key driver in his offending –
addiction. Mr Poipoi has long associated with a gang, as has his father, and generally has not been receptive to opportunities to change the path of his life.
[11] However, for the first time the present process has seen a change. Mr Poipoi was released from custodial remand to attend a programme run by the Grace Foundation. He was on that for 10 weeks prior to sentencing and engaged well with it. For that period he was apparently drug-free and the report provided is very positive.
[12] Ms Pairman recognises the advantages in fostering the change in attitude that has recently emerged. Further, however, on normal sentencing principles she accepts a discount for personal factors of around 20 per cent. As Ms Younger submitted, there are the factors of (relative) youth, a somewhat dislocated upbringing, and a clear link to addiction-driven offending. While some of this is self-reported, the overall information and disclosed patterns make its reality plain.
Outcome
[13]The appeal is allowed.
[14] I consider there should be a discount of 45 per cent from the starting point, leaving a final sentence of 20 months’ imprisonment.
[15] Mr Poipoi wishes to return to the residential programme. That is to be encouraged. I give leave to apply for home detention, in the expectation an application will be made when a place becomes available.
[16] The new sentence is achieved by quashing an existing sentence of two years and five months’ imprisonment imposed on a count of burglary and substituting a sentence of 20 months’ imprisonment. All other sentences are unchanged.
Simon France J
Solicitors:
Jacinda Younger, Palmerston North for Appellant Crown Solicitor, Palmerston North for Respondent
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