Pou v Police

[2012] NZHC 1266

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2012-488-12 [2012] NZHC 1266

JOSEPH HOHEPA POU

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         7 June 2012

Counsel:         J Watson for Appellant

AL Patterson for Respondent

Judgment:      7 June 2012

(ORAL) JUDGMENT OF LANG J

[on appeal against conviction and sentence]

JOSEPH HOHEPA POU V NEW ZEALAND POLICE HC WHA CRI-2012-488-12 [7 June 2012]

[1]      Mr Pou pleaded guilty in the District Court to a charge of sexual violation by unlawful sexual connection.  On 21 September 2011 Judge McDonald sentenced him to three years 11 months imprisonment.[1]   He now appeals to this Court on the basis that  the sentence  was  manifestly excessive  and/or that  the  Judge  structured  the sentence having regard to erroneous considerations.

Facts

[1] Police v Pou DC Whangarei CRI-2011-088-001790, 21 September 2011.

[2]      The offending to which Mr Pou pleaded guilty was serious.   It occurred in circumstances where he had been drinking in Whangarei City for a considerable period.  He and the victim then went to a residential address and continued drinking alcohol.  At around 5 pm, he and his associates including the victim went home, but picked up more alcohol on their journey.   They then continued to drink alcohol throughout the evening.

[3]      The victim, who was at that stage 28 years of age, went to bed at around midnight after consuming a considerable amount of alcohol.  She and her son were sleeping in a double bed, whilst Mr Pou was to sleep on a mattress on the floor in the same bedroom.

[4]      The victim awoke at around 2 am to find Mr Pou licking her vagina.  She immediately pushed him away and sat up to find her trackpants and underwear had been pulled down.  She pulled her pants up and asked Mr Pou what he was doing. He immediately apologised to her, but made other inappropriate comments relating to the fact that he had just engaged in sexual activity with her.   He also began rubbing her hip and attempted to roll her over and pull her pants down again.

The sentence

[5]      The Judge considered that the offending fell towards the top of Band 1 in R v

AM.[2]That  band  calls  for  a  starting  point  of  between  two  and  five  years imprisonment.   The Crown had submitted that an appropriate starting point was

between three and a half and four years imprisonment.   Counsel for Mr Pou had submitted that a starting point of between four and five years imprisonment was appropriate. The starting point that the Judge selected was therefore within the range proposed by both counsel.

[2] R v AM [2010] NZCA 114.

[6]      Having regard to the principles set out in R v AM and the nature of the sexual activity in which Mr Pou engaged, there can be no doubt that the starting point that the Judge selected was within the available range.

[7]      The Judge then noted that Mr Pou had many previous convictions.   These included a conviction for an indecent assault on a young boy in May 1989, for which he had received a sentence of 12 months imprisonment.  The Judge considered that the previous convictions warranted an uplift of nine months imprisonment.  He then applied a 25 per cent discount to reflect Mr Pou’s early guilty plea, but declined to apply any other discount to the starting point.  This led to the end sentence of three years 11 months imprisonment

Grounds of appeal

[8]      On appeal the only ground advanced for Mr Pou is that the Judge applied an inappropriate uplift having regard to the nature of his previous convictions.  Counsel for Mr Pou acknowledged that the conviction for indecent assault was obviously relevant in the present context, because it demonstrated that Mr Pou had engaged in highly   inappropriate   sexual   activity   even   after   having   been   sentenced   to imprisonment on a previous occasion for similar activity.  This demonstrated that he had not learned his lesson from the previous occasion and, accordingly, it made the present offending that much worse.

[9]      Counsel submitted, however, that the Judge was wrong to take into account the fact that Mr Pou also has numerous convictions for drunken driving, obstruction of the course of justice, drugs and breach of Court orders.  He submitted that those convictions were irrelevant in the present context.

Decision

[10]     I  agree  that  the  previous  convictions  for  offending  other  than  sexual offending were of little weight in terms of any uplift.   If an uplift for previous convictions is to be applied, the previous convictions in question must have some relevance to the offending for which the offender is for sentence.

[11]     Having  said  that,  the  previous  conviction  for  indecent  assault  was  also serious.  It involved a complainant who was aged 12 years and four months at the time of the offending.  The complainant was under Mr Pou’s care, and was staying overnight at Mr Pou’s address.   He went to bed and then awoke to find Mr Pou standing beside him naked.  Mr Pou then put his hand down the complainant’s pants and fondled his genitals.  This caused the complainant to pull away from Mr Pou and to run from the flat.  Mr Pou explained on that occasion that he had a problem with drugs and alcohol and that he needed help.

[12]     The circumstances of the present offending also demonstrate that Mr Pou offended whilst under the influence of alcohol and also, possibly, prescription medication.   The probation report records that he has no recollection at all of the incident and he acknowledged once again that he had a problem with alcohol.  He acknowledged,  also,  that  his  consumption  of  alcohol  left  him  vulnerable  to offending.

[13]     The circumstances of the previous conviction for indecent assault are such, in my view, that on its own it justified an uplift of the order that the Judge applied. For that reason I do not accept that the fact that the Judge may have taken into account other irrelevant convictions affected the appropriateness of the end sentence.

Result

[14]     Although I grant leave to appeal out of time, the appeal is dismissed.

Lang J

Solicitors:

Crown Solicitor, Whangarei

Counsel:

J Watson, Whangarei