Poole v R

[2014] NZHC 1226

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2014-035-456 [2014] NZHC 1226

BETWEEN	HAYDEN POOLE Appellant
AND	THE QUEEN Respondent

Hearing:	3 June 2014
Counsel:	P Stevens for the Appellant I Murray for the Respondent
Judgment:	3 June 2014

JUDGMENT OF MALLON J

Introduction

[1]      Mr Poole (also known as Mr Pool) pleaded guilty to charges of burglary,1 unlawful taking of a motor vehicle,2 driving with excess breath alcohol,3 driving dangerously4 and failing to stop for a police vehicle.5  He was sentenced to two years seven months’ imprisonment.  He appeals against that sentence on the grounds that it is manifestly excessive.6    He contends that a sentence of less than two years imprisonment was available and that the appropriate sentence is home detention

coupled with supervision and community work.

1      Crimes Act 1961, s 231(1)(a) (maximum penalty of 10 years imprisonment).

2      Section 226(1) (maximum penalty of seven years imprisonment).

3      Land Transport Act 1998, s 56(1) and (4) (maximum penalty of two years imprisonment, and minimum disqualification period of one year).

4      Section 35(1)(b) (maximum penalty of three months imprisonment, and minimum disqualification period of six months).

5      Section 52(1)(c) (maximum penalty of $10,000 fine).

6      Criminal Procedure Act 2011, s 250; Vae v Police [2013] NZHC 2664 at [28]; Bruce Robertson

(ed) Adams on Criminal Law (online looseleaf ed, Brookers) at [CPA250.01].

POOLE v R [2014] NZHC 1226 [3 June 2014]

The offending

[2]      The burglary took place during the day on  30 August 2013.    Mr Poole jemmied open the back door of a Napier residential address using a garden trowel. He stole electronic items to the value of about $2,500.

[3]      The balance of the offending took place in the early hours of 30 November

2013.  Mr Poole broke into a car at a Pahiatua residential address.  He drove off.  A police patrol on State Highway 2 noted the car to be travelling at 129 km/h.  The patrol  car  pulled  in  behind  the  vehicle  and  its  flashing  lights  and  siren  were activated.  Mr Poole did not stop.  He accelerated to speeds of up to 180 km/h with the patrol car in pursuit.   He travelled more than 11 kilometres in wet conditions, cutting corners at high speed and swerving violently to pass two other vehicles.  He maintained excessive speed through a 30  km/h road works  area  and  through a

50 km/h area as he entered Masterton.  The police deployed two sets of road spikes. The second set of spikes was successful in slowing Mr Poole down.  Mr Poole damaged the car as he came to a stop.  He fled.  He was apprehended by a police dog a short time later.  A subsequent evidential breath test gave a reading of 596 µg of alcohol per litre of breath.

The offender

[4]      Mr Poole is 24 years old.  He was unemployed at the time of the offending. He has an extensive history of offending, mainly involving burglaries,7  unlawfully taking or interfering with or stealing vehicles8 and driving offences.9   He has mainly been sentenced to short sentences of imprisonment for his offending, although on occasion he has been sentenced to community detention or community work.  As

noted in the pre-sentence report Mr Poole has a problematic use of alcohol and drugs.

[5]      On his arrest for the present offending Mr Poole was remanded in custody. A

visiting doctor at the prison provided a letter to the District Court.  The letter said that Mr Poole lost his young brother in a car accident on 15 September 2013 and that

7      Four convictions from 2009 and 2010.

8      Seven convictions from 2008, 2010 and 2011.

9      Eleven convictions between 2007 and 2013. These include convictions for driving without a license, failing to stop, dangerous driving, excess blood alcohol, and careless operation of a vehicle.

his grandfather’s unveiling was on 9 September 2013.  The letter said that Mr Poole was grieving and that this was a substantial factor in his offending.  It also said that Mr Poole was motivated to seek counselling help.  A letter from Mr Poole’s partner was to similar effect. His partner had contacted counselling services. They were in a position to provide their services subject to funding.

[6]      The pre-sentence report writer recommended home detention.  Mr Poole’s mother’s address was assessed as suitable.

The District Court sentence

[7]      The District Court Judge took the burglary charge as the lead charge.   He identified the aggravating features as being that this was Mr Poole’s fifth burglary conviction, it involved a residential dwelling and property of substantial value was taken and has not been recovered.   He took a starting point of three years imprisonment.  He then applied a 25 per cent percent discount for Mr Poole’s guilty plea.   That reduced the sentence to 27 months imprisonment. To that he added a cumulative sentence of four months imprisonment for the other offending taking into account totality. Mr Poole was also disqualified from driving for 13 months from the date of sentencing. No reparation was ordered.

Assessment of appeal

[8]      The submission for Mr Poole focussed on the starting point for the burglary charge.   I agree that a three year starting point on that charge was too high.   A starting point of 18 months imprisonment would be more in line with comparable

offending and in light of Mr Poole’s history.10

10     R v Southon (2003) 20 CRNZ 104 (CA) (referring to Senior v Police (2000) 18 CRNZ 340 (HC)); Mackie v Police [2012] NZHC 1654 (property to the value of $1,500 was taken by an offender with 11 burglary convictions, including seven in the Youth Court; a starting point 18 months imprisonment was considered appropriate on appeal); Blissett v Police [2013] NZHC

156 (property to the value of $2,000 was taken in two burglaries by an offender with 13 burglary convictions; a starting point of 20 months imprisonment was considered appropriate for both offences) ; White v Police HC Rotorua CRI-2009-463-72, 12 October 2009 ($60 was taken by an individual with two burglary convictions; a starting point of 12 months imprisonment was adopted for the burglary and a charge of vehicular conversion); Tonihi v Police HC Wellington CRI-2007-485-147, 5 March 2008 (a small quantity of beer was taken by an offender with 14/15 burglary convictions; a starting point of two and a half years imprisonment was not disturbed on appeal); Tihema v Police [2012] NZHC 1329 ($280 was taken by an offender with 22 burglary convictions; a starting point of two years and six months imprisonment was considered appropriate on appeal).

[9]      However the cumulative sentence of four months imprisonment for the other offending was lenient.  The Judge noted it would have been more but for totality considerations.  With a more appropriate starting point of 18 months imprisonment for the burglary, a greater cumulative sentence was available for the other offending. Taking into account totality, cumulative sentences totalling 15 months imprisonment

for that offending in light of his history was available.11

[10]     This would have meant a total starting point of two years and nine months imprisonment.  A 25 percent discount for the guilty pleas would mean a sentence of two years and one month imprisonment.  Home detention is not available for a sentence of that length.

[11]     In any event I am not persuaded that Mr Poole is a suitable candidate for home detention.   I accept that at the time of the driving offending Mr Poole was suffering grief. However Mr Poole has been offending since 2007. To bring a halt to this he needs to address his problematic use of alcohol and drugs.  Home detention and supervision can better facilitate that when an offender recognises his problem and is motivated to address that.   There is nothing in the material before me to indicate sufficiently that Mr Poole has that recognition and motivation.  That is a shame because Mr Poole is a young man who has been to prison many times and yet is continuing to offend.  The offending is low level but some of it, in particular the driving with excess breath alcohol and the dangerous driving offending, carries with it significant risk both to himself and others using the road.  It is in the interests of Mr  Poole and  the  community that  he  takes  steps  to  address  the  causes  of  his

offending.

11     See, for example, Hall v Police [2012] NZHC 2641 (the offender faced charges of driving while disqualified (third or subsequent offence), refusing to provide a sample, dangerous driving, failing to stop, and dishonestly using a vehicle; a sentence of one year and nine months was given for the combined offences); Coles v Police [2013] NZHC 3188 (the offender faced his third convictions for driving with excess breath alcohol and driving while disqualified, as well as charges of failing to stop and dangerous driving; a starting point 20 months was given for the combined offences); Hewitt v Police [2012] NZHC 3332 (the offender faced two burglary charges in addition to various other vehicular offences such as unlawfully getting into a motor vehicle, driving with excess breath alcohol, and dangerous driving; on appeal, a starting point of

15 months was adopted for the burglaries, and 12 months imprisonment was added for the balance of the offending and his previous history of offending on a totality basis).

Result

[12]     The appeal is allowed.   The sentences imposed in the District Court are quashed.  In their place I substitute the following sentences: one year and one month imprisonment for the burglary; eight months imprisonment for the driving with excess breath alcohol third or subsequent (cumulative); two months imprisonment for the dangerous driving (cumulative); and two months imprisonment for the unlawful taking of a motor vehicle (cumulative).  He is convicted and discharged on the failing to stop charge.   The disqualification orders made in the District Court remain.

Mallon J