Pompey v Police - [2023] NZHC 2378

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-000327

[2023] NZHC 2378

BETWEEN
KARA NEIHANA POMPEY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 21 August 2023

Appearances:

K C Leung for Appellant

J L Gibson for Respondent

Judgment:

30 August 2023

JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew on 30 August 2023 at 2.00 pm
pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar
Date ………………………….

POMPEY v NZ POLICE [2023] NZHC 2378 [30 August 2023]

Introduction

[1] The appellant, Mr Kara Pompey, pleaded guilty in the Auckland District Court to six charges of burglary.1 He was sentenced by Judge B A Gibson to six years’ imprisonment.2 He appeals to this Court, contending that the end sentence was manifestly excessive.

[2] Mr Leung, on behalf of Mr Pompey, submits that an end sentence of 19 months’ imprisonment or less is appropriate and that the Court should consider imposing a sentence of home detention instead of imprisonment.

[3]There are two principal grounds of appeal:

(a)The starting point was manifestly excessive;

(b)The sentencing Judge failed to place sufficient weight on mitigating factors.

[4]The Police oppose the appeal.

Background facts

[5] Mr Pompey’s charges relate to six distinct burglaries at various commercial premises between January and August 2022. Four of the burglaries occurred in Auckland and two in New Plymouth. He managed to flee the scene successfully after the first five burglaries but was caught by Police after the final burglary.

[6] The first burglary, on 5 January 2022, was committed at George Harrison, a high-end clothing store in central Auckland. Mr Pompey and two others went to the store at night after it had closed; they entered the mall in which it was located via the automatic door. Mr Pompey proceeded to throw a large concrete slab through the window of George Harrison, causing it to smash. He entered the store and began taking garments from the racks while his two co-offenders remained at the broken

1 Crimes Act 1961, s 231(1)(a); maximum penalty 10 years’ imprisonment.
2 Police v Pompey [2023] NZDC 13238.

window, reaching through it to take garments from the window display. After Mr Pompey had filled his arms with garments, he left the store through the same window. The total value of the property stolen was $25,796.

[7] Mr Pompey returned to the same location in the early hours of 22 January 2022, accompanied by three co-offenders. The automatic door to the mall was locked on this occasion, so one of Mr Pompey’s co-offenders threw a medium sized rock through it, shattering the glass. The four offenders then entered the mall and approached the George Harrison store. Both Mr Pompey and one of his co-offenders then threw a rock through the front window of George Harrison, causing it to smash. All four offenders entered the store through this smashed window and uplifted various garments. The total value of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 2378
Decision Date: 30 August 2023

CaseChat Overview and Summary

The appeal in Pompey v Police was heard by Justice Andrew, who was tasked with determining whether the sentence imposed by the Auckland District Court was manifestly excessive. Mr Kara Pompey, the appellant, had been sentenced to six years' imprisonment for six counts of burglary, which he pleaded guilty to. Pompey argued that the starting point for his sentence was too high and that mitigating factors were not adequately considered. The Police opposed the appeal. The key issues were whether the starting point was too high and if mitigating factors were properly considered. Justice Andrew found that the starting point of eight and a half years was indeed too high, as it was not proportionate to Pompey's offending when compared to similar cases. The court considered relevant factors such as the degree of planning, the value of the stolen goods, and the damage caused, concluding that a starting point of six years was more appropriate. Additionally, the court found no error in the Judge's approach to the mitigating factors, including Pompey's guilty pleas and his background. Consequently, the appeal was allowed, and Pompey's sentence was reduced to four years and four months' imprisonment.

Orders