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Poole v R

Poole v R

Case [2014] NZHC 1226 3 June 2014

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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…

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.

Continue reading Poole v R

Details

AGLC: Poole v R [2014] NZHC 1226
Case: [2014] NZHC 1226
Decision Date: 3 June 2014

CaseChat Overview and Summary

Hayden Poole (appellant) appealed against his sentence, contending it was manifestly excessive. Poole pleaded guilty to charges of burglary, unlawful taking of a motor vehicle, driving with excess breath alcohol, driving dangerously, and failing to stop for a police vehicle. He was sentenced to two years seven months’ imprisonment. The appeal was heard in the High Court of New Zealand. Poole submitted that a sentence of less than two years imprisonment was available and that the appropriate sentence was home detention coupled with supervision and community work.

The legal issues involved determining whether the District Court had erred in setting the starting point for the burglary charge and whether Poole was a suitable candidate for home detention. The court considered Poole’s history of offending, his problematic use of alcohol and drugs, and the impact of his grief on his offending. The court also examined the circumstances of the offending, including Poole’s dangerous driving and the risk he posed to himself and others.

The court found that the District Court had erred in setting a starting point of three years imprisonment for the burglary charge. A starting point of 18 months imprisonment would be more in line with comparable offending and in light of Poole’s history. The court also found that Poole was not a suitable candidate for home detention. While Poole was suffering grief at the time of the driving offending, he had been offending since 2007 and needed to address his problematic use of alcohol and drugs. Home detention and supervision could facilitate this if Poole recognised his problem and was motivated to address it. However, there was nothing in the material before the court to indicate sufficiently that Poole had that recognition and motivation.

The appeal was allowed. The sentences imposed in the District Court were quashed. In their place, the court substituted 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). Poole was convicted and discharged on the failing to stop charge. The disqualification orders made in the District Court remained.

Orders