Pound v Police

[2025] NZHC 2040

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2025-409-116 [2025] NZHC 2040

BETWEEN  ASHLEY GRACE POUND

Appellant

AND  NEW ZEALAND POLICE

Respondent

Hearing:                   17 July 2025 further memorandum 18 July 2025 Appearances: R I J Crean for Appellant

L Fiennes for Respondent

Judgment:                25 July 2025

JUDGMENT OF EATON J

(appeal against sentence)

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

POUND v POLICE [2025] NZHC 2040 [25 July 2025]

[1]    On 21 May 2025, Judge Couch sentenced Ashley Pound to two years and four months’ imprisonment1 following her guilty pleas to charges of burglary,2 theft (over $1000),3 driving while disqualified (third or subsequent),4 and being found unlawfully in an enclosed yard.5 Ms Pound appeals that sentence. She says it is manifestly excessive.

Facts

[2]    On 24 September 2024 at 3.24 am, the appellant and a co-offender entered a laundromat. They spent several minutes opening the filter trays of each machine, using a torch to look inside for items. The appellant retrieved two cardboard boxes and filled them with the victim’s clothes from inside a dryer. The appellant and her co-offender then left with the two boxes containing $2,620 worth of the victim’s clothing.

[3]    On 25 September the appellant was stopped by Police for failing to wear her seatbelt while driving. She was a disqualified driver with nine prior convictions for driving while disqualified.

[4]    During daylight hours on 7 October the appellant jemmied the side window of a home on Grahams Road. She then searched the house stealing $5,925.40 of property including a military uniform, foreign currency and the victim’s wallet and passport.

[5]    On 23 October at around 5.35 am the appellant, along with the same co-offender from the laundromat theft, attempted to open the rear door of a house on Chester Street. They were found by police. The appellant had a small torch, the co-offender was wearing gloves and had two jemmy bars.

1      Police v Pound [2025] NZDC 10677.

2      Crimes Act 1961, s 231(1)(a); maximum penalty 10 years’ imprisonment.

3      Sections 219 and 223(b); maximum penalty seven years’ imprisonment.

4      Land Transport Act 1998, s 32(1)(a) and (4); maximum penalty two years’ imprisonment or $6000 fine.

5      Summary Offences Act 1981, s 29(1)(b); maximum penalty three months’ imprisonment.

District Court Decision

[6]    The Judge adopted a discrete starting point for each offence. Sixteen months’ imprisonment was adopted for the burglary described by the Judge as substantial, involving a forced entry and a real risk of encountering the occupants. A starting point of six months was applied for the laundromat theft which the Judge described as mean spirited and clearly premeditated: “You went there to steal other people’s clothes”. The Judge observed that the driving while disqualified was Ms Pound’s 10th driver licencing offence (either driving while disqualified or driving while suspended), and her fourth in three years. A starting point of 15 months was adopted. On the charge of being unlawfully in an enclosed yard, a starting point of three months (the maximum penalty) was adopted.

[7]    From a global starting point the Judge calculated as 42 months’ imprisonment (in fact 40 months), the Judge allowed a totality deduction of eight months. The adjusted starting point of 34 months was uplifted by 10 per cent to reflect the appellant’s criminal history. Deductions of 22 per cent were allowed for guilty pleas and five per cent for background  factors.  The  end  sentence  of  two  years  and four months’ imprisonment was imposed on the burglary charge with concurrent sentences imposed for all other offending.

[8]    Ms Pound was ordered to pay reparation totalling $1,710 and was disqualified from holding or obtaining a driver licence for one year and six months.

Principles on appeal

[9]    Appeals against sentence are allowed  as  of  right  by  s  244  of  the  Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.6 As the Court of Appeal observed in Tutakangahau v R, with reference to the lower court’s decision, a “court will not intervene where the sentence is within

6      Criminal Procedure Act 2011, ss 250(2) and 250(3).

the range that can properly be justified by accepted sentencing principles”.7 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.8

Submissions

Appellant’s submissions

[10]   Ms Crean, for the appellant, submits the Judge erred in adopting separate starting points for each offence, leading to a manifestly excessive overall starting point. She contends the Judge should have adopted a starting point for the burglary and applied modest uplifts for the theft and unlawfully in a yard charges, with a discrete starting point for the driving while disqualified charge. Ms Crean submits, with reliance on case law,9 that an appropriate global starting point for all offending is between 22- and 30-months’ imprisonment.

[11]   Ms Crean further submits there was a lack of parity between the starting points adopted for Ms Pound and her co-accused, that the totality deduction was inadequate and that the Judge erred in not allowing a remorse deduction and in allowing only a five per cent deduction for factors addressed in the s 27 report. She highlights that the Judge made an arithmetical error in calculating the global starting point to be 42 not 40 months’ imprisonment.

[12]   Ms Crean contends that an end sentence of 18 months’ imprisonment with leave to apply to home detention is the appropriate sentence.

Respondent’s submissions

[13]   Ms Fiennes, for the respondent, accepts that although it would have been appropriate and preferable for the Judge to have adopted a starting point that reflected all dishonesty offending, the focus on appeal is on the end sentence rather than the

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

8      Ripia v R [2011] NZCA 101 at [15].

9      Police v Smyth [2016] NZDC 26050; and Gunn v Police [2012] NZHC 3278.

methodology adopted. Ms Fiennes submits the starting points for theft and unlawfully in an enclosed yard were stern, and accepts the Judge made factual, arithmetical, and legal errors. However, she submits the 16-month starting point applied to the burglary charge was too low and that the end sentence was not manifestly excessive.

Analysis

Approach to sentence

[14]   While Ms Crean submits the Judge erred in adopting individual starting points and then making an adjustment to reflect totality, the focus on appeal is not on the methodology applied, but on whether the end sentence is manifestly excessive.10 I agree with Ms Crean that a better approach would have been to adopt discrete starting points for the dishonesty and driving offending. The Judge applied cumulative starting points for each offence, but then imposed concurrent sentences. Ms Pound’s criminal history records that she was sentenced to two years and four months’ imprisonment for the burglary. In my view that is misleading. The Judge had adopted a starting point for that offence of 16 months’ imprisonment. The sentence imposed and recorded in her criminal record reflects a more culpable burglary.

[15]   Ms Fiennes sought an opportunity to file further submissions addressing this issue and particularly whether it was appropriate for this Court to correct the record. In a memorandum filed on 18 July, Ms Fiennes confirmed the respondent did not wish to be heard on that issue.

[16]   In my view it is wrong that a defendant’s criminal history should record a sentence for a particular offence that is significantly higher than the starting point adopted by the Judge for that particular offence. A likely consequence is that in the event the defendant reoffends and is to be sentenced for the same or a similar offence, the sentencing Judge is influenced by the sentence imposed for the prior offending. In all likelihood the defendant would be represented by different counsel who would not be aware of or have immediate access to the earlier sentencing notes recording the actual starting point adopted. The issue could and, in my view, should have been

10     R v Barker CA57/01, 30 July 2001 at [10] and [12].

avoided by the Judge in imposing a lesser sentence for the burglary, concurrent terms for the lesser dishonesty offending and a cumulative sentence for the unrelated aggravated disqualified driving. A sentence constructed in that manner would reflect the true culpability.

Starting point for laundromat theft

[17]   Ms Crean submits, and Ms Fiennes accepts, that the Judge erroneously found that Ms Pound had entered the laundromat with the sole intention of stealing clothes. In fact, she and her co-offender had entered the laundromat with their own laundry. Notwithstanding that error, I am not persuaded that the starting point of six months’ imprisonment for an offence involving over $2,000 of stolen property, committed with a co-offender and involving a breach of trust was too high.

[18]   Ms Crean further highlights that a different Judge took a starting point of  five months’ imprisonment when sentencing the co-offender for the same theft. She submits that the starting point adopted by the Judge breaches the principle of parity. Ms Fiennes sought to justify the higher starting point taken for Ms Pound as a reflection of her more active role in the theft. I do not accept that submission. This was plainly a joint enterprise.

[19]   The Judge made no reference to the earlier sentencing of the co-defendant. I proceed on the understanding the Judge was not aware of those sentencing notes. That of itself highlights a shortcoming. The Judge should have been made aware of the earlier sentencing.

[20]   Regardless, I am satisfied the principle of parity was not breached. Ms Crean’s submission overlooks that the Judge allowed a 20 per cent deduction for totality. That equates to about a month, and therefore an adjusted starting point of five months for the laundromat theft, the very same starting point adopted for the co-offender.

Starting point for unlawfully in an enclosed yard

[21]   The Judge adopted the maximum penalty of three months’ imprisonment as the starting point for this offending. In doing so the Judge observed that the offence had

originally been charged as burglary and expressed surprise that it had been amended to the lesser offence. The Judge considered all elements of burglary were present as was the aggravating factor of premeditation.

[22]   Ms Crean submits the Judge should not have referred to the elements of burglary and again submits the starting point offended the principle of parity given a different Judge imposed only a one-month concurrent sentence on the co-offender.11

[23]   I am satisfied the starting point of three months’ imprisonment was appropriate. It is difficult to conceive of a more serious offence of being unlawfully in an enclosed yard. This offending had all the hallmarks of a residential burglary. I agree with the Judge that if an offender, together with a co-offender, at 5.35 am in the morning, is found within the enclosed yard of a residential address in possession of gloves, jemmy bars and a torch while attempting to enter the property through the rear door, that a charge of burglary would ordinarily prevail. It is unclear why a different Judge concluded that a one-month concurrent sentence was appropriate for that offending, although the sentencing notes indicate that the co-offender had been recalled to prison. That might have tainted the sentencing exercise.

[24]   As the Court of Appeal acknowledged in Kulu v R, when an appellate court is dealing with an offender whose sentence appears to it to be proper, the fact a co-offender has received a sentence which the appellate court considers too lenient is not of itself a ground for interfering with the appellant’s longer sentence.12 In my view, the sentence imposed on the co-defendant was manifestly inadequate, therefore overcoming the principle of parity.

Uplift for aggravating disqualified driving

[25]   Ms Crean takes no issue with the 15-month uplift applied by the Judge to reflect Ms Pound’s 10th conviction for driving whilst disqualified. That concession is appropriate. In Osikai v Police, a starting point of no more than 15 months’ imprisonment was considered appropriate for the appellant’s eighth conviction for

11     The sentencing notes for the co-offender do not record the starting point for the unlawfully in a yard offence, only the concurrent end sentence of one month’ imprisonment.

12     Kulu v R [2022] NZCA 284 at [33].

driving while disqualified where the deterrent effect of imprisonment was imposed for the first time and there was no concern about the appellant’s driving.13

[26]   Ms Pound was sentenced to terms of imprisonment (with leave to apply for home detention) on her last two appearances before the District Court on charges of aggravated disqualified driving. Those sentences have not deterred her from further offending. I am satisfied the starting point adopted was within range and that it was appropriate for the Judge to adopt a discrete starting point for that offending. The only error I discern, as I have observed, is that the Judge ultimately imposed a concurrent sentence for this offending. In my view the sentence of imprisonment imposed for this offending should have been cumulative.

Arithmetical error/totality adjustment

[27]   The Judge calculated the global starting point for all offending, prior to applying the uplift for personal factors, to be 42 months’ imprisonment. The correct starting point was 40 months’ imprisonment. The Judge then allowed a totality deduction, reducing the starting point to one of 34 months’ imprisonment. The Judge did not indicate how that deduction was calculated or otherwise assessed. That adjustment, from 42 months, equates to approximately 20 per cent.   Applying a     20 per cent totality deduction to the correct starting point leads to an adjusted starting point of 32, rather than 34 months’ imprisonment.

[28]   Ms Crean submits that this arithmetical error ought to be corrected on appeal. Ms Fiennes submits it is unclear whether the Judge intended to impose a percentage totality deduction or had otherwise identified 34 months as being the adjusted starting point considered to be proportionate for the overall offending.

[29]   In my view, the interests of justice require the Court to correct what appears to be an error made by the Judge and to treat the adjusted starting point as being one of 32 months’ imprisonment.

13     Osikai v Police [2015] NZHC 2952 at [7].

[30]   Ms Crean submits the totality deduction allowed by the Judge was inadequate. I disagree. A 20 per cent deduction resulting in an adjusted starting point of 32 months’ imprisonment for the totality of the offending was, in my view, proportionate to the overall gravity of the offending.

The starting point for the burglary offending

[31]   Ms Crean supports the starting point of 16 months adopted by the Judge for the burglary. Ms Fiennes submits it fell outside the recognised range for a lower-end residential burglary. Ms Fiennes points to the observation of the Court of Appeal in Arahanga v R:14

[78] This Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied. Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting  point  of  approximately  18 months’  to  two  years  and  six months’ imprisonment.

[32]   Whilst there is no tariff for burglary given the variety of circumstances in which that offence can arise,15 I agree with Ms Fiennes that  a sentence  of around  20 months’ imprisonment would more appropriately reflect the index burglary offending. A starting point at that level was adopted in both French v Police16 and Ivar v Police17 for daytime  residential  burglaries  similar  to  that  committed  by  Ms Pound. This is a relevant factor in considering whether the end sentence was manifestly excessive.

Mitigating personal circumstances

[33]   Both in written and oral submissions in the District Court, Ms Crean had sought a discrete deduction to reflect Ms Pound’s remorse. Her remorse was said to be evidenced in an apology letter she had written to the Court and in her willingness to participate in restorative justice with the victim of the burglary. That victim had been willing to meet with Ms Pound but a conference was unable to be convened before the

14     Arahanga v R [2012] NZCA 480 at [78] (footnotes omitted).

15     R v Nguyen CA110/01, 2 July 2001 at [18].

16     French v Police [2015] NZHC 2635.

17     Ivar v Police [2021] NZHC 493.

victim left New Zealand. Ms Pound had written a letter to the victim, recording her apology. Ms Crean submits a deduction of around 2.5 per cent ought to have been allowed. Ms Fiennes acknowledges that the Judge erred in not considering the issue of remorse but submits that it was open to the Judge not to allow a deduction.

[34]   I agree the Judge should have considered a remorse deduction. Sufficient material was put before the Judge to require the Court to engage on the issue. Another Judge might have allowed a modest deduction to reflect letters of apology and a willingness to participate in a restorative justice conference, however in my view a deduction for a recidivist offender for formal apologies and a willingness to meet in a restorative justice setting, is by no means automatic.

[35]   Ms Pound has an appalling history of criminal offending. She is a recidivist disqualified driver. She is a recidivist thief and fraudster. She has been acting dishonestly over many years. Her offending must have involved multiple victims. That she continues to offend in a like manner suggests any expression of remorse or regret are shallow. If she had genuine remorse for her current offending, she would have ensured that the victim’s military uniform, stolen during the course of the burglary, would be returned. She has failed to do so. Ms Crean says it was difficult for her to do so given her custodial remand. I do not accept that submission.

[36]   Finally, Ms Crean submits the appellant should have been allowed more than a five per cent deduction for background factors as evidenced in a s 27 report prepared when Ms Pound was sentenced following her guilty plea to a charge of blackmail in June 2022. A significant, albeit unquantified, deduction was allowed to reflect background factors at the blackmail sentencing. The Judge observed that since the June 2022 sentencing, Ms Pound had been sentenced on 12 October 2023. The Judge then said, “[t]he higher courts have recently said that it is not appropriate to take the factors discussed in the s 27 report into account repeatedly in successive sentences”.18

18     Police v Pound, above n 1, at [18].

[37]   As Ms Fiennes responsibly acknowledges, that observation does not reflect the law.  The Judge may have had in mind the observation of Palmer J in Carroll v Police:19

[While] some level of discount was justified for Mr Carroll’s reduced agency because of his background, it should have been at a rate that was lesser than his previous discount, to reflect the heightened need to denounce his conduct, and to protect the community, and to recognise the lower likelihood of rehabilitation.

[38]   In Carroll, Palmer J had considered the deduction range for the subsequent offending to be zero to eight per cent.

[39]   The observations of Palmer J were recently considered by the Court of Appeal in Cooper v R.20 The Court of Appeal considered the deduction range for background offending and repeat offending must be considered in the context of the facts to hand. The Court agreed with and endorsed the observations made in other decisions that the range proposed in Carroll did not express a general legal sentencing principle.21 The Court considered that Carroll “must be seen in the specific context and facts to which it relates; it does not fix a tariff for reduced agency deductions for repeat offenders”.22

[40]   It follows that background matters including those set out in a s 27 report will appropriately be considered notwithstanding repeat offending if they reflect reduced agency, but the particular facts may lead a sentencing Judge to conclude that a lesser level of deduction than that applied to a previous occasion is appropriate.

[41]   Notwithstanding the Judge’s view as to the availability of a deduction for background factors, a five per cent deduction was allowed. Ms Crean submits that was inadequate. Ms Fiennes submits it was within range.

[42]   Ms Crean submits the offending occurred at a time the appellant was being harassed, stalked and abused by her ex-husband, causing her to flee her home and activating a ‘fight or flight’ response. Counsel submits Ms Pound’s offending was

19     Carroll v Police [2023] NZHC 3293 at [29].

20     Cooper v R [2025] NZCA 272.

21     At [29], citing Edwards v R [2024] NZHC 1762 at [28]–[29] and Smith v Police [2024] NZHC 858 at [21].

22     Cooper v R, above n 20, at [29].

shaped by her ingrained patterns of independence and desperation, as reflected in the s 27 report. I accept there was evidence before the Judge confirming the appellant’s current challenging personal circumstances. But, as Ms Fiennes submits, it is difficult to conceive a strong causal connection between those circumstances and the appellant’s repeated disqualified driving and her other dishonesty offending. At interview for her pre-sentence report, Ms Pound was unable to offer any explanation for her offending. Her motivation to steal the victim’s military uniform is a mystery.

[43]   It was open to the Judge to allow a greater deduction for personal background factors, but I am not satisfied the Judge erred in fixing the level of deduction at     five per cent.

Overall

[44]   I am satisfied that it is necessary to correct what I consider was an arithmetical error made by the Judge. I consider it necessary to correct the record so it reflects the appellant’s true culpability for the burglary. The overall end sentence will be reduced from one of 28 months to one of 26 months. That sentence will be imposed by way of a cumulative sentence for the aggravated disqualified driving.

[45]   I am not satisfied the other errors identified have given rise to a manifestly excessive end sentence. In particular, I agree with Ms Fiennes that the starting point for the residential burglary was low.

Result

[46]   The appeal is allowed. All sentences of imprisonment imposed in  the  District Court are quashed and substituted as follows:

(a)on the charge of burglary, a sentence of 15 months’ imprisonment;

(b)on the charge of theft, a sentence of four months’ imprisonment to be served concurrently;

(c)on the charge of unlawfully in an enclosed yard, a sentence of two months’ imprisonment to be served concurrently; and

(d)on the charge of disqualified driving (third or subsequent), a sentence of 11 months’ imprisonment to be served cumulatively on the sentence of 15 months’ imprisonment imposed for the burglary.

[47]   The reparations and the disqualification from holding or obtaining a driver licence imposed in the District Court remain.

...................................................

Eaton J

Solicitors:
Crown Solicitors, Christchurch

Counsel:
K L Chalmers, Barrister, Christchurch