Pou v Police

[2021] NZHC 1068

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-000071

[2021] NZHC 1068

BETWEEN

GUSTAVO POU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	10 May 2021
Appearances:	R A van Boheemen for Appellant O S Klinkum for Respondent
Judgment:	13 May 2021

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 13 May 2021 at 3.45 pm

Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:

Crown Solicitor, Auckland

C G Farquhar/R A van Boheemen, Auckland

POU v NEW ZEALAND POLICE [2021] NZHC 1068 [13 May 2021]

Introduction

[1]                   The appellant, Gustavo Pou, appeals a sentence of nine months’ home detention imposed by Judge Shortland in the District Court at Auckland on 20 January 2021.1 The sentence was imposed in respect of the following charges:

(a)burglary (x 2);2

(b)theft (x 4);3

(c)assault on a person in a family relationship;4 and

(d)failing to appear.5

[2]                   Mr Pou appeals his sentence on the ground that it is manifestly excessive. He says that the Judge gave insufficient discounts for his personal mitigating factors and that he should have been given an allowance to reflect the time he spent in custodial remand prior to sentencing.

[3]                   The Crown supports the sentence imposed, submitting that the discounts given were appropriate and that, in any event, the sentence is not manifestly excessive in all the circumstances.

Background

Burglary (x 2)

[4]                   At about 4.40pm on 28 June 2020, Mr Pou arrived at an address in Panmure. He entered the property by forcing open a side window that leads into a storage area. He took six large boxes containing 24 new mini ovens. He loaded these into his vehicle and left. The burglary was captured on CCTV. The ovens belonged to a person known to Mr Pou. The items were worth $480 in total.

1      Police v Pou [2021] NZDC 7421.

2      Crimes Act 1961, s 231. Maximum penalty 10 years’ imprisonment.

3      Crimes Act 1961, ss 219 and 223(d). Maximum penalty three months’ imprisonment.

4      Crimes Act 1961, s 194A. Maximum penalty two years’ imprisonment.

5      Bail Act 2000, s 38. Maximum penalty one year’s imprisonment or a fine not exceeding $2,000.

[5]                   At about 3.30pm on 3 July 2020, Mr Pou went to an address in Dominion Road, Mount Roskill. The address is a fully fenced residential home with CCTV cameras. The occupier was known to Mr Pou. He was not at home and he had not given Mr Pou permission to enter his property. Mr Pou parked his vehicle in a driveway in front of the address. He entered the property through the front gate and looked around to check if anyone was around. He proceeded to walked to a car port and then helped himself to a can of coke from a fridge. He then entered an unlocked shed at the rear of the property. He picked up a tool bag filled with tools belonging to the victim. The tools have an approximate value of $1,500. Mr Pou took the tools and subsequently left the address through the side gate and drove away in his vehicle. In explanation, he stated that he had taken the items because he needed money.

Theft (x 4)

[6]                   On 12 February 2020, Mr Pou arrived at a gym in St Johns. He got out of his vehicle and wandered around the premises, looking up at CCTV cameras while doing so. He then picked up a portable barbecue and gas bottle. The items belong to the victims of this offending and are worth about $500. Mr Pou loaded the barbecue and gas bottle into his vehicle and left the premises. In explanation, Mr Pou said that he thought the items had been left out as rubbish and that he took them as scrap metal.

[7] At about 12.05pm on 18 April 2020, Mr Pou arrived at the same premises in Panmure noted at [4] above. He walked through an open rear door and uplifted a box containing a portable oven. He returned to his vehicle with the box and left the premises. The oven is the property of the victim and is valued at $125.

[8]                   At 10.51pm on 24 June 2020, Mr Pou arrived in his vehicle at a service station in Newmarket. He filled up his vehicle with $75 worth of 91 octane petrol. He then drove away without paying for the petrol.

[9]                   At around 6.44pm on 2 July 2020, Mr Pou arrived in his vehicle at a service station in St Heliers. He filled up his vehicle with $50 worth of 91 octane petrol. He drove away without paying for the petrol.

[10]               In explanation, Mr Pou said that he had committed these various thefts because he needed to fund his methamphetamine habit.

Assault on a person in a family relationship

[11]               At about 4.45pm on 23 June 2020, Mr Pou was travelling in a vehicle with his partner, the victim of this offending. She was 37 weeks pregnant at the time. He was driving while she was in the front passenger seat. They began to argue after Mr Pou asked the victim to buy methamphetamine for him. He stopped the vehicle and punched the victim at least three times in the head with a closed fist. When spoken to, he said that he had not punched the victim but had hit her with the back of his hand while driving.

Failing to appear in Court

[12]               On 15 June 2020, Mr Pou, having been released on bail on 25 May 2020, failed without reasonable excuse to attend at the Auckland District Court.

District Court sentencing

[13]               Judge Shortland began by acknowledging the presence in Court of Mr Pou’s family. He also acknowledged the victims who had been impacted by Mr Pou’s offending. He summarised the relevant facts and noted that Mr Pou had spent some time in custody. He accepted that Mr Pou was remorseful and that he had participated in rehabilitative programmes. The Judge identified the relevant purposes of sentencing in this case as being the need to hold Mr Pou accountable for his actions, the need to protect the community and the victims, and the need to recognise the gravity of his offending. He acknowledged Mr Pou’s personal circumstances.

[14]               On the lead charge of burglary, the Judge held that an aggravating feature was the fact that one of the target premises in Panmure had been “hit not once but twice” (noting that Mr Pou had only been charged with one burglary for his offending at these premises when he could have been charged with two burglaries). He adopted a starting point of 18 months’ imprisonment for this burglary. This was uplifted by six months for the other offending (noting that it had been committed while Mr Pou was on bail)

and then by a further two months for Mr Pou’s previous dishonesty related offending. This brought the starting point sentence to 26 months’ imprisonment.

[15]               The Judge then took into account Mr Pou’s guilty pleas, the rehabilitative work he had done and the letters of remorse he had written to the victims and the Court. He also took into consideration Mr Pou’s drug addiction issues and his need for professional help. The Judge reduced Mr Pou’s sentence by eight months to recognise these matters. This brought the starting point sentence down to 18 months’ imprisonment.

[16]               The Judge noted the recommendation of home detention in the pre-sentence report. He considered that this would assist Mr Pou in gaining entry to a residential programme and help him to go forward and deal with his drug addiction and the associated offending. The Judge noted that Mr Pou has a family who are willing to support him. He sentenced Mr Pou to nine months’ home detention.

The appeal

[17]               The appeal is brought pursuant to s 244(1) of the Criminal Procedure Act 2011. This Court must allow the appeal if it is satisfied that, for any reason, there is an error in the sentence imposed on conviction and that a different sentence should be imposed.6 This Court does not start afresh. Nor does it simply substitute its own opinion for that of the original sentencer. Rather, it must be shown that there was an error by the original sentencer, whether intrinsically or as a result of additional material submitted on appeal. If there is an error, the Court will then consider whether that error is material and whether it has resulted in a manifestly excessive sentence. The focus is on whether the sentence imposed is within range, rather than the process by which it was reached.7

Submissions

[18]               Ms van Boheemen, for Mr Pou, recorded that he is grateful that the Judge imposed a rehabilitative sentence and advised that he is doing well at the Grace

6      Criminal Procedure Act 2011, s 250(2).

7      Tutakangahau v R [2014] NZCA 279 at [30]-[36].

Foundation where he is currently a resident. Nevertheless, she submitted that his sentence is too long. She argued that the Judge’s overall discount of eight months – approximately 30 per cent – to recognise Mr Pou’s early guilty pleas, his rehabilitative efforts, his remorse, and his addiction issues, was insufficient. She argued that the Judge erred in his approach as he had not apportioned out the different factors making up the total discount given. She submitted that Mr Pou should have received discounts of 25 per cent for his guilty pleas, at least 15 per cent for his addiction issues and rehabilitative efforts, and 10 per cent for remorse. She also submitted that the Judge erred in not reducing Mr Pou’s sentence to acknowledge a period of three and a half months he spent on custodial remand. She argued that Mr Pou’s sentence should have been reduced to 10 months’ imprisonment, which she submitted should be commuted to five months’ home detention.

[19]               Ms Klinkum, for the respondent, submitted that the discounts given were sufficient and that, in any event, the end sentence was within the available range. She argued that the appropriate guilty pleas discount should have been 15 to 20 per cent. She submitted that a discount of around 10 to 15 per cent would have been appropriate to recognise that Mr Pou’s offending was fuelled by addiction and to recognise his willingness to engage in rehabilitation. She submitted that the Judge acknowledged Mr Pou’s remorse and that a 5 per cent discount would have been sufficient for this factor. Adding these discounts together, Ms Klinkum submitted that the global discount given of approximately 30 per cent was within the available range and was a matter for the Judge in the exercise of his discretion. It was further submitted that even if this Court considers that the discounts should have been higher, this should be balanced by the generous starting point adopted by the Judge. She submitted that the Judge’s sentencing notes implicitly suggest that he did take the time spent on remand into account in reaching the eight-month discount afforded to Mr Pou. She accepted that this should have been expressly taken into account but argued that the end sentence remains appropriate and that it best meets the purposes of rehabilitation and reintegration.

Analysis

[20]               There has been no challenge to the starting point adopted by the Judge for the lead offending or to the uplift applied for the balance of the offending and for Mr Pou’s

relevant previous convictions. Rather, this appeal centres on whether Mr Pou was afforded adequate discounts for his personal mitigating factors and whether the Judge should have made a further deduction to the sentence imposed for the time he spent on remand.

[21]               The Judge did not specify the discount given for each personal mitigating factor he took into account. Instead he granted an overall discount for Mr Pou’s guilty pleas, his addiction issues, his efforts at rehabilitation and his remorse. The overall discount of eight months granted by the Judge equated to approximately 30 per cent of the indicated starting point sentence of 26 months’ imprisonment. It would have been preferable if the Judge had itemised the discount given for each personal mitigating factor and then applied the total percentage discount to the starting point sentence. That is the approach taken in relevant authorities, for example, Moses v R.8 It was there held that, as a first step, the Court should determine the starting point sentence for the offending in issue as if it had been committed by an adult offender after a defended trial. It should incorporate into this the aggravating and mitigating factors of the offending to reach an adjusted starting point. As a second step, the Court should tailor the adjusted starting point to the offender, incorporating his or her personal aggravating and mitigating circumstances. These circumstances are generally considered individually. They can be expressed as a number of months (or years) or as a percentage of the adjusted starting point sentence. Either way, listing the discounts individually makes it clear to both the defendant and to an appellate court what factors have led to a discount and what allowance has been made for each factor. A failure to do this is not however fatal on appeal; it is the end sentence reached which is relevant rather than the process adopted. Nevertheless, a failure to identify the personal circumstances individually and to indicate how each affects the adjusted starting point does make it more burdensome for an appellate court.

[22]               I turn to consider each relevant personal factor separately to see whether the overall discount allowed by the Judge was appropriate:

(a)The guilty pleas: Credit given for guilty pleas should reflect all of the circumstances in which the pleas were entered, including when they

8      Moses v R [2020] NZCA 296 at [5]-[10].

were entered and the strength of the prosecution case.9 Here, Mr Pou pleaded guilty at an early stage. The Crown’s case however was very strong. Mr Pou’s offending was captured on CCTV in relation to a number of the offences. There was an independent witness to the domestic assault. I consider that a 20 per cent discount would have been appropriate, taking into account these factors.

(b)Addiction and rehabilitation: Discounts of up to 30 per cent can be granted where a defendant has a drug addiction and there is a causal nexus between the addiction and the offending.10

Here, Mr Pou’s methamphetamine addiction is self-reported. Normally,  more  is  required.  However,  the  Judge  accepted  that  Mr Pou’s drug addiction issues led to his offending. 11 Mr Pou’s comments to the police and comments attributed to him in the pre- sentence report suggest that obtaining money to feed his drug addiction motivated the burglaries and perhaps some of the thefts. Ms Klinkum reasonably accepted that Mr Pou is a drug addict and that there was the link between Mr Pou’s addiction and some of his offending. I agree with her assessment, albeit noting that the link with the thefts of petrol, the assault by Mr Pou on his partner and the failure to appear, is less obvious.

The report writer recorded Mr Pou’s desire to complete a residential rehabilitation programme for his drug addiction. At the time of sentencing he had applied for The Bridge Programme at Odyssey House or the Solutionz Course at the Grace Foundation. While on custodial remand, he had completed the Dynamics of Whanaungatanga and Mindfulness course. The Judge commended Mr Pou’s efforts and considered that he deserved a credit for his participation in these programmes.

9      Hessell v R [2010] NZSC 135.

10     Zhang v R [2019] NZCA 507 at [148].

11     Police v Pou [2021] NZDC 7421 at [8], [17] and [18].

Counsel for Mr Pou initially advised that Mr Pou had been accepted by the Grace Foundation and that he was residing at its premises in Otahuhu. I was told that he had started the “Solutionz” course and had approximately five weeks left to complete it. Shortly before I was about to release this judgment, I received a further memorandum from Mr Pou’s counsel advising that Mr Pou has left the Grace Foundation premises. Apparently he did not adhere to the rules of the Grace Foundation’s programme and he was asked to leave.

Before receiving this advice, I had considered that a discount of 20 per cent would have been appropriate to recognise Mr Pou’s drug addiction and rehabilitative efforts. Given recent events, I am not now prepared to indicate what discount if any should be applied to Mr Pou for these matters.

(c)Remorse: Remorse is identified as a mitigating factor by s 9(2)(f) of the Sentencing Act 2002 and the Courts have recognised that remorse, where demonstrated and genuine, is a distinct mitigating factor from a guilty plea discount.12

Here, Mr Pou’s remorse is evidenced in a letter of apology he wrote to one of the victims of his offending. He also attended a restorative justice conference with the same victim and he expressed genuine remorse to the report writer. He offered reparation. Counsel advise that he has put an arrangement in place to make regular payments by way of reduction from his benefit payments. Those payments have not as yet been paid out to the victims because of this appeal. Separate reparation was paid by his family to the service stations involved.

In my view, a 10 per cent discount would have been appropriate for remorse and the reparation payments made and to be made.

12     Moses v R, above n 8, at [24].

[23]               I now turn to the issue of time spent on custodial remand. It was common ground that Mr Pou spent 14 weeks – or three and a half months – on remand in custody.

[24]               The Judge did note that Mr Pou had been “inside for a period of time” when discussing the rehabilitative courses he had completed while in custody.13 He did not however deduct the time spent in custody before considering the home detention option.

[25]               While time spent on remand in custody is automatically factored in when the end sentence is a sentence of imprisonment, this is not the case where the sentence ultimately imposed is one of home detention.14 Instead, a sentencing Judge must make a reduction for any time spent in custody. This will normally be the actual time the offender has spent in custody.15 Giving a credit for time spent in custody is important as it ensures equality of treatment for offenders regardless of the type of end sentence imposed (imprisonment or home detention).16 The reduced term can be commuted to a sentence of home detention in appropriate cases. The generally accepted methodology when a sentence is commuted involves halving the sentence of imprisonment.17

[26]               In my judgment, the Judge should have deducted three and a half months, being the time spent by Mr Pou on custodial remand, from the adjusted starting point sentence before going on to consider whether to commute the sentence into a sentence of home detention. He erred in not doing so.

[27]There are other problems with the sentence imposed.

[28]               The Judge did not, in his sentencing notes, fix an address at which the sentence was to be served. This was contrary to s 80A(4) of the Sentencing Act. The address

13 Police v Pou [2021] NZDC 7421 at [11].

14 See Sentencing Act 2002, s 80X(1); compare s 82.

15 Gotty v R [2020] NZHC 2035 at [18]; Longman v Police [2017] NZHC 2928 at [19]; Parkinson v Police [2019] NZHC 1710.

16 Gotty v R [2020] NZHC 2035 at [18]; Longman v Police [2017] NZHC 2928 at [8]-[9].

17  Laloni v R [2015] NZCA 55 at [14]; though note that this methodology is not prescribed by law and what is ultimately required is an evaluative assessment of all the circumstances: R v Bisschop [2008] NZCA 229; S v R [2011] NZCA 178.

of the Grace Foundation has been entered on the Court record for some of the charges. This is irregular and improper. Fixing an address for a sentence of home detention is part of the sentence imposed. It is not an administrative exercise. It should have been dealt with in open Court and while the defendant was present.

[29]               An offender serving a sentence of home detention becomes subject to the standard conditions set out in s 80C(2) of the Sentencing Act and to any special conditions that may be imposed by the Court under s 80D. The Judge, in his sentencing notes, did not impose any special conditions. He simply recorded that he had looked at the recommendations (presumably in the Provision of Advice to Courts report) and that he was prepared to look at home detention. He ventured the opinion that it would assist Mr Pou if he could get into a residential programme. In my view, the Judge should have imposed special conditions designed to ensure that Mr Pou received the rehabilitation that he requires pursuant to s 80D of the Act.

[30]               Finally, the Judge in his sentencing notes said that he was making reparation orders and recorded that he had discussed them with Mr Pou. No further detail was given, although notes requiring the payment of reparations were made on some of the charging documents forming part of the Court file. This is also irregular. Reparation is a sentence which can be imposed in relation to any particular offence, either on its own or in addition to any other sentence.18 Such orders should be made in open Court and they should have been set out clearly. They should not have been treated as an administrative task to be endorsed on the Court file.

[31]               Initially I had intended to allow the appeal, quash the sentence imposed, impose a shorter sentence of home detention, fix an address at which the sentence was to be served, incorporate conditions relating to Mr Pou’s rehabilitation and make reparation orders. However, given the recent turn of events disclosed by counsel, I am not in a position to do so. I no longer have an address at which any sentence of home detention can be served. Further, Mr Pou’s recent behaviour may suggest that a sentence of home detention is no longer appropriate.

18     Sentencing Act 2002, s 12(2).

[32]               Accordingly, I allow the appeal and quash the sentence of nine months’ home detention imposed by Judge Shortland. I remit the matter to the District Court, so that it can re-sentence Mr Pou, taking into account the observations made in this judgment and matters as they stand at the time Mr Pou is resentenced.

Wylie J