Poupouare v Police - [2022] NZHC 209

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-000517

[2022] NZHC 209

BETWEEN
MARIA NGAWINI POUPOUARE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 15 February 2022

Appearances:

A Spika for Appellant

H Brown for Respondent

Judgment:

17 February 2022

JUDGMENT OF GORDON J

This judgment was delivered by me
on 17 February 2022 at 4.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Public Defence Service (A Spika), Auckland

Meredith Connell (Office of the Crown Solicitor), Auckland

POUPOUARE v NZ POLICE [2022] NZHC 209 [17 February 2022]

Introduction

[1] The appellant, Maria Poupouare, was sentenced to 12 months’ imprisonment by Judge A-MJ Bouchier in the Auckland District Court on 17 November 2021, having pleaded guilty to the following charges:

(a)Dishonest use of a document (x 1);1

(b)Theft (under $500) (x 15);2

(c)Common assault (x 1);3 and

(d)Failing to answer District Court bail (x 2).4

[2] Ms Poupouare now appeals that sentence as manifestly excessive on the grounds that:

(a)The starting point was manifestly excessive; and

(b)The uplifts were too high having regard to the totality of the overall offending.

Factual background

[3] On 24 June 2019, Ms Poupouare attended an appointment at Work and Income New Zealand (WINZ). While waiting, she removed a staff member’s debit card from a desk. She used the card to make purchases totalling $191.83, that same day.

[4] Between 24 June 2019 and 29 March 2021, Ms Poupouare committed 15 thefts, as set out in the table below:

1      Crimes Act 1961, s 228(1)(b); maximum penalty seven years’ imprisonment.
2      Crimes Act, ss 219 and 223(d); maximum penalty three months’ imprisonment.
3      Crimes Act, s 196; maximum penalty one year’s imprisonment.
4      Bail Act 2000, s 38; maximum penalty one year’s imprisonment or $2,000 fine.

Date Victim Context Items Value (rounded)

24 June 2019 TS WINZ Debit card $10

27 December

2019
JL Private residence Lawn trimmer $250

10 February

2020
Tai Ping Supermarket Meat products $50

6 April 2020 Mobil Petrol station Confectionary $25

29 June 2020 Briscoes Retailer Bed linen $240

3 September

2020
Martha’s Backyard Retailer Homeware $50

29 January

2021
Panmure Pharmacy Pharmacy Candle and diffusers $150

20 February

2021
Paper Power Retailer Pens $85

21 February

2021
Super Liquor Retailer Alcohol $45

25 February

2021
Countdown Supermarket Groceries $250

8 March 2021 Acquisitions Retailer Home decor $150

12 March

2021
Smith & Caughey’s Department store Perfume $240

13 March

2021
Pak ‘n’ Save Supermarket Meat products $50

27 March

2021
Countdown Supermarket Groceries $100

29 March

2021
Noel Leeming Retailer Bluetooth speaker $250

[5]The goods stolen totalled an approximate value of $1,945.

[6] On 10 February 2020, staff of the Tai Ping supermarket pursued Ms Poupouare in order to recover the food she had stolen. She threw rocks at them. No injuries were sustained. This incident gave rise to the assault charge.

[7] On 5 December 2019 and 29 October 2020, Ms Poupouare failed…

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.

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Details

Case: [2022] NZHC 209
Decision Date: 17 February 2022

CaseChat Overview and Summary

In this case, Maria Poupouare appeals against her sentence, arguing that it was manifestly excessive. The appellant was sentenced to 12 months’ imprisonment by the Auckland District Court, having pleaded guilty to 16 charges of theft under $500, one charge of dishonest use of a document, two charges of failing to answer District Court bail, and one charge of common assault. The appellant argues that the starting point was manifestly excessive and that the uplifts were too high having regard to the totality of the overall offending. The respondent submits that the District Court judge did not err in her approach to sentencing, and that the end sentence imposed is within the available range.

The court first identified the lead offence. The appellant submitted that the lead offence should be theft under $500, but the court accepted the respondent’s submission that the difference in maximum penalty reflects the inherent difference in seriousness between the two types of offences. The court found that the dishonest use of a document was the lead offence and set a starting point accordingly. The court then reviewed the starting point. The court considered the offending in the present case to be most similar to that which occurred in Horrell v Police, which attracted a starting point on appeal of six months’ imprisonment. In light of the case law referred to, the court considered that a starting point of five months’ imprisonment for the charge of dishonest use of a document was appropriate in this case.

The court next reviewed the uplift for other offending. The court considered that an uplift of six months was appropriate, and consistent with relevant case law. The high number of theft charges, combined with the additional charges of assault and failure to answer bail, clearly warranted the uplift which the District Court Judge imposed. The court also reviewed the uplift for previous convictions. The court accepted that any uplift must be proportionate to the end sentence, and found that an uplift of two months was appropriate. Finally, the court reviewed the discounts applied by the District Court Judge. The court found that the most favourable outcome for the appellant was a sentence of eight months’ imprisonment.

The court concluded that the starting point for the lead sentence was beyond the range that could properly be justified by sentencing principles. The appeal was allowed, and the sentence of 12 months’ imprisonment on the lead charge was quashed and replaced with a sentence of eight months’ imprisonment on that charge. The sentences on all the other charges remain at three months’ imprisonment as imposed by the Judge, and the post-imprisonment conditions remain as imposed by the Judge.

Orders