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Pou v Police

Pou v Police

Case [2021] NZHC 1068 13 May 2021

Sentencing

Rehabilitative Sentence

Discounts for Personal Mitigating Factors

Time Spent on Custodial Remand

Home Detention

Reparation Orders

Criminal Law

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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.…

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 Pou v Police

Details

AGLC: Pou v Police [2021] NZHC 1068
Case: [2021] NZHC 1068
Decision Date: 13 May 2021

CaseChat Overview and Summary

The appellant, Gustavo Pou, appeals against a sentence of nine months' home detention imposed by Judge Shortland in the Auckland District Court, which was for charges including burglary, theft, assault, and failing to appear. The appeal was on the basis that the sentence was manifestly excessive. The Crown supported the sentence imposed, asserting that the discounts given were appropriate and that the sentence was not manifestly excessive in all the circumstances. The appeal court found that the Judge had erred by not deducting the time spent on remand in custody from the adjusted starting point sentence before considering the home detention option, which is required to ensure equality of treatment for offenders. The appeal court also found that the Judge should have imposed special conditions designed to ensure that Pou received the rehabilitation that he requires, and should have made reparation orders in open court. The appeal was allowed and the sentence was quashed, with the matter remitted to the District Court for resentencing.

Orders