Pou v Police

[2016] NZHC 2121

IN THE HIG H COURT O F NEW ZEALAND AUCKLAND REG ISTRY

CRI-2016-404-231 [2016] NZHC 2121

BETWEEN

KUEVA POU

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	6 September 2016
Appearances:	C Wright for Appellant A Park for Respondent
Judgment:	7 September 2016

JUDGMENT O F LANG J [on appeal against sentence]

This judgment was delivered by me on 7 September 2016 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

POU v NEW ZEALAND POLICE [2016] NZHC 2121 [7 Septe mber 2016]

[1]      Mr Pou pleaded guilty in the District Court to charges of inj uring with i ntent to inj ure, male assaults female (x 3), threatening to kill and breach of a protection order.  On 17 June 2016, Judge Dawson sentenced Mr Pou to two years three months imprisonment.1

[2]      Mr Pou appeals against sentence on the basis that an error occurred during the sentenci ng process that led to the Judge i mposing a sentence that was manifestl y excessive.

Background

[3]      All of the charges arose out of a series of incidents that occurred on the morni ng of 7 June 2015.  The complainant in respect of each charge was Mr Pou’s for mer partner.  He and the complainant had been i n a relationship for approxi matel y eight years, and at the ti me of the offendi ng had three children.   There had been difficulties in the relationship for some ti me, and the couple were living apart.  The complainant had obtai ned a protection order agai nst Mr Pou on 13 Februar y 2014.

[4]      The  i ncident  occurred  after  a  verbal  argument  that  began  when  the complainant declined to make Mr Pou’s breakfast whilst he was visiting her at her home.  When the complainant went to telephone a friend, Mr Pou began assaulti ng her repeatedly.   Over the next ten mi nutes or so he punched her numerous ti mes about the face with a closed fist and also dragged her along the floor by her hair. When the complainant attempted to escape t hrough a bedroom window, Mr Pou applied  a  chokehold  around  her  neck  to  stop  her  from leaving.    This  left  the complainant hanging from the window with her feet above the ground.

[5]      The complainant was eventually able to escape from the house but Mr Pou pursued her and pushed her to the ground.  He then began strangling her with both hands, causing her to feel dizzy and short of breath.   He  also used one  hand to squeeze the complainant’s windpipe.   He then began to drag her back inside the house w hilst maintaini ng a chokehold on her neck.  Whilst doi ng this, he told the complainant he would kill her if the police were called.

[6]      Mr  Pou’s  younger  sister  then arrived  and  managed  to  cal m the  situation down.  The complainant used this opportunity to leave the house and call the police using a nearby phone box.  As she called the police, Mr Pou a pproached the phone box and attempted to prevent her from completi ng the call.  He was still at the phone box when the police arrived a few minutes later.

[7]      The assaul ts resulted in the complainant sustaining large red scratches and swelling around her neck area and throat, as well as swelling around her eyes and cheeks.

The events that occurred in t he District Court

[8]      The material before the Court does not reveal what happened to the charges between June 2015 and 16 Februar y 2016.  On 16 Februar y 2016, however, Judge Dawson agreed to a request by Mr Pou for a sentence indication. 2   The Judge took a starting poi nt of three  years imprisonment to reflect Mr Pou’s culpability on all charges.   He then allowed a discount of seven months, or 20 per cent, to reflect guilty pleas provided they were entered the same day.   The Judge noted that any further deductions would be subject to a pre-sentence report and further submissions that mi ght be made by counsel.

[9]      Mr Pou i mmediatel y accepted the sentence indication and pleaded guilty to the charges.  He was then remanded on bail for sentence on 7 April 2016.  On that date he apparentl y went to the wrong cour troom and a warrant for his arrest was issued.  Later in the day the warrant was cancelled after Mr Pou found his way to the correct courtroom.   By that stage, however, it was not possible for sentenci ng to proceed on that day.   Mr Pou was therefore further remanded on bail to appear for sentence on 17 June 2016.

[10]     The case was referred to the Restorative Justice Coordinator after Mr Pou entered his guilty pleas on 16 Februar y 2016.  In an affidavit filed in support of the appeal the complainant deposes:

3.I was contacted  by someone  in  late  February  2016 and asked  if I wanted to attend a restorative justice session.   I did not know what restorative  justice  was  at  that  stage.    The  caller  did  not  explain anything about  it to me.   I said that  I was  not  interested  as all I understood of it was that I would need to travel to a meeting.

[11]     It is common ground that the Restorative Justice Coordinator subsequentl y advised the Registry that the case was not appropriate for the restorative justice process.

[12]     The complainant confir ms i n her affidavit that she attended the sentenci ng hearing on 17 June 2016.   She says that by that stage she  had discovered what restorative justice was, and how it mi ght help her ongoi ng relationship with Mr Pou. At court she told Mr Dean, the lawyer then acting for Mr Pou, that she wanted to participate in the restorative justice process with Mr Pou.  She says she also told Mr Dean that she wanted to address the Court.

[13]     When the case was called, Mr Dean applied for a fur ther adjournment.   He told the Judge the adjour nment was needed for three reasons.  First, Mr Pou wished to undertake a “Man Alive” course as part of his rehabilitation.  Secondly, Mr Dean advised the Judge that Mr Pou and the complainant wished to undertake relationship counselling.   Thirdly, he told the Judge that the complainant was present and had indicated she wanted to attend a restorative justice conference with Mr Pou.

[14]     The following exchange then occurred:

MR DEAN:

Indeed, Sir.  Well, it’s in those circumstances, Sir, that I ask Your Honour to

–

THE COURT:

No, I’m not going to grant an adjournment.

MR DEAN:

May it please Your Honour.

THE COURT:

He’s had more than sufficient time and there is no basis for adjourning this.

[THE COMPLAINANT]:

Am I able to speak?

THE COURT:

No, you’re not.  Do the Crown wish to be heard?

[15]     The Judge then proceeded to sentence Mr Pou.  He adopted the same starti ng point and discount for guilty pleas as he had selected in the sentence indication.  He then applied a further discount of two months to reflect Mr Pou’s remorse.  On this issue the Judge observed:

… I accept  that  you are exhibit ing some remorse,  although  I suspect  it is more for your current circumstances in which you find yourself.  I will allow a further  two months  for that and on the charge  of injuring with  intent  to injure, you are sentenced to two years and three months’ imprisonment. …

Ground of appeal

[16]     The sole ground of appeal is that the Judge erred in refusing the application for an adjour nment to enable the parties to attend a restorative justice conference. Mr Wri ght submi ts that a positive outcome from such a conference would have had a signi ficant effect on the end sentence i mposed on Mr Pou.  He contends that it may have reduced the sentence of i mprisonment to one of two years or less so that the Judge could have considered imposing a sentence of home detention.

Was t he Judge required to adjourn sentencing to enable a restorative justice conference to be held?

[17]     Mr Wri ght’s primar y argument is that the Judge erred in law because he had no  discretion to  decline  the  application for  an adjour nment.    He  relies  for  this submission on s 24A of the Sentencing Act 2002, which provides:

24A      Adjournment for restorative justice process in certain cases

(1)      This section applies if —

(a)an  offender  appears  before  a  District  Court  at  any  time before sentencing; and

(b)      the offender has pleaded guilty to the offence; and

(c)      there are 1 or more victims of the offence; and

(d)no  restorative  justice  process  has  previously  occurred  in relation to the offending; and

(e)the  Registrar  has  informed  the  court  that  an  appropriate restorative justice process can be accessed.

(2)      The court must adjourn the proceedings to—

(a)enable   inquiries   to   be   made   by   a   suitable   person   to determine whether a restorative justice process is appropriate in  the  circumstances  of  the  case,  taking  into  account  the wishes of the victims; and

(b)enable a restorative justice process to occur  if the inquiries made  under  paragraph  (a)  reveal that a  restorative  justice process is appropriate in the circumstances of the case.

[18]     Mr  Wright submits  that this Court should i nterpret the requirements of s

24A(2) liberally because it was enacted with the interests of victi ms i n mi nd.   He effectively contends that s 24(2)(b) requires a sentencing court to adjourn a proceeding to  enable  a  restorative  justice  process  to  occur  whenever  it receives advice that a complainant is willing to participate in that process.  Mr Wright submi ts that the Judge was therefore obliged by law to adjourn the proceeding once Mr Dean advised him that the complainant wished to participate in a restorative justice conference with Mr Pou.

[19]     I do not accept this submission.   The wording used in s 24(2)(b) makes it clear that the Court is only required to adjour n a proceeding for a restorative justice process to occur where enquiries carried out under s 24(2)(a) have revealed that such a process is appropriate in the circumstances of the case.   In the present case the enquiries carried out under s 24A(2)(a) had already revealed that the restorative justice process was not appropriate because the complainant did not wish to participate.  For that reason Mr Dean’s advice to the Judge that the complainant had changed her mi nd and now wished to participate in a restorative justice conference did not trigger the obligation to adjourn the proceedi ng under s 24A(2)(b).

[20]     It was therefore a matter for the Judge’s discretion as to whether to grant the

adjournment based on the i nfor mation he received from Mr Dean a t the hearing.

Did t he Judge err in exercising his discretion not to adjourn the sentencing?

[21]     Although the Judge did not give reasons for his decision, several factors are likely to have influenced  hi m in making it.   First, it is evident from the Judge’s remar ks set out above that he considered Mr Pou had already had ample opportunity to engage i n the activities in respect of w hich he sought the adjour nment.

[22]     Secondly, the charges against Mr Pou had been before the Court since June

2015.   The Judge would also have been aware that sentencing had already been adjourned on one occasion.   He was no doubt concerned to ensure the proceeding was brought to a conclusion.

[23]     Thirdly, the victi m i mpact statement provided by the complainant did not

assist Mr Pou’s cause.  It read as follows:

We have had a lot of past history  of Domestic  Violence  between  me and Kuera  Pou,  this is the reason  we don’t  live together,  I always  hope for a change  everytime  I come  up for visits  but it always  ends in violence  this time I have had enough.  It’s not worth the pain and stress as we have 3 kids. Another on the way I need to keep my attention on my kids.   I recommend him to go rehab as he is a bad meth/p abuser and to get h elp for himself. Nobody deserv es to live in violence.

[24]     Further more, Mr Pou has an extensive list of previous convictions stretchi ng back to 2006.   They i nclude convictions for speaki ng threateningl y, male assaults female and being in possession of cannabis and  methamphetami ne.   He also has numerous previous convictions for failing to compl y with Court orders.  These may have led to the Judge bei ng sceptical regarding the practical utility of the restorative justice process given the nature and seriousness of the present offendi ng.

[25]     In addition, the Judge intended to appl y a discount of two months to reflect Mr Pou’s remorse.  He did so even though he obviousl y suspected any remorse was principally for the situation in which Mr Pou found hi mself.   The Judge therefore probably considered that a further adjour nment would serve little practical purpose in ter ms of likely discount.

[26]     The onl y issue that gives me cause for concer n arises out of the fact that the Judge refused the complainant’s request that she be per mitted to address the Court i n relation to the issue of the proposed adjournment.

[27]     Any challenge to the exercise of a judicial discretion must establish er ror of principle.  This can i nclude failing to take i nto account a relevant consideration.  In the present case I consider that the complainant’s views were clearly relevant to the exercise of the discretion to adjour n the proceeding further.   Had the complainant made her views known to a member of court staff, a police employee or a probation officer, that person would have been obliged to refer the request to a suitable person

so that a restorative justice conference could be arranged. 3   For that reason the Judge

ought to  have  taken the complainant’s views into  account when considering the application  for  an  adjour nment.    Further more,  he  ought  to  have  agreed  to  the complainant’s request that she  be  given the opportunity to explain w hy she  had changed her mi nd and now considered the restorative justice process could be of benefi t to her and her family.

[28]     Had the complainant been given that opportunity, it is likely she would have told the Judge that in practical ter ms she has no option but to deal with Mr Pou in the future because he is the father of her children.  She may also have told the Judge that restorative justice provided a means by which she and Mr Pou could discuss the manner i n w hich he was to conduct hi mself in the future.  Those considerations were not  necessarily directly relevant  to  the  issue  of sentence  but  they were  clearly important  to  the  complainant.    They  were  also  in  the  wider  interests  of  the community because it is not i n the communi ty’s interests for Mr Pou to continue to offend in this way in the future.

[29]     The complainant may not  ulti matel y have persuaded  the Judge  that these considerations warranted a further adjournment but that is by no means certai n.  Had he listened to the complainant, however, the Judge may have been persuaded that her interests outweighed the desirability of disposing of the proceeding without further

delay.   For that reason I consider the Judge erred in not taki ng into account the

3       Victims’ Rights Act 2002, s 9.

complainant’s views regarding the proposed adjournment.   It is now necessary to consider whether that error may have affected the ul ti mate outcome.

Might t he error have affected the ultimate outcome ?

[30]     It is obviously i mpossible to predict whether the Judge’s refusal to grant an adjournment would have affected the end sentence the Judge i mposed.   Mr Wright has  nevertheless referred me  to  decisions of this Court in which remorse and a positive  outcome  to  the  restorative  justice  process  have  materially  reduced  the sentence  i mposed.4      Had  the  restorative  justice  process  been  undertaken  in  the present case, it would have provided Mr Pou with a  further  means by w hich to demonstrate his remorse, acknowledgement of responsibility and desire to act differentl y i n the future.  That i n tur n may have persuaded the Judge to provide hi m with a greater discount to reflect those factors.

[31]     I do not consider it practicable to remit the proceeding to the District Court for Mr Pou to be re-sentenced taking i nto account the outcome of any restorative justice  conference  that  might  now  be  held.    Instead  I  consider  the  appropriate remedial  action is  to  provide  Mr  Pou with  the  additional  benefit  he  may  have received if he had participated positively in the restorative justice process.

[32]     Several factors suggest that any additional discount would have been limited. As the complainant’s victi m i mpact statement demonstrates, the present charges are symptomatic of a lengthy histor y of discord and violence i n the relationship.  The manner in w hich Mr Pou reacted to the perceived slight by the complainant on the present occasion suggests strongl y that physical violence is his immediate response to any action by her that displeases hi m.   His previous convictions lend weight to that concer n.  Further more, Mr Pou would have participated in the restorative justice process knowing that his performance could materially affect his sentence.   This could call into question the genuineness of that perfor mance.  The very fact that Mr Pou offended i n the way that he did on the present occasion would also cause the

Cour t to regard promises he mi ght make about the future with caution.

4       R v Khan HC Rotorua CRI 2009 063 509, 13 August 2010; R v Daljit Singh HC Auckland CRI

2014 004 7419, 14 July 2015.

[33]     These factors persuade me that it is highl y unlikely that the Judge would have reduced  the  sentence  further  by  more  than  two  months  even  if  Mr  Pou  had performed  creditably at a  restorative  justice  conference.    I  therefore  propose  to reduce the end sentence by that amount.

Result

[34]     The   appeal   is   allowed.     The   sentences   of   two   years   three   months imprisonment i mposed on the lead charges of i njuring with intent to  inj ure and assaulting a female are quashed.  In their place I substitute concurrent sentences of

two years one month i mprisonment.  All other sentences remai n intact.

Lang J

Solicitors:

Crown Solicitor, Auckland