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 to appear at the District Court to answer bail.

District Court decision

[8]    Judge Bouchier reviewed the pre-sentence report and Provision of Advice to the Court dated 16 November 2021 and noted the following: the address proposed for home detention was considered unsuitable due to the lack of co-operation from the

occupant and a sentence of imprisonment was recommended; offending-related factors were identified as current lifestyle, associates, and attitudes; and the risk of re- offending on bail was identified as high. The Judge agreed with the assessment that Ms Poupouare’s current offending was a continuation of a lengthy history of offending relating to property, dishonesty, non-compliance, driving, violence, alcohol and drugs, in both the Adult and Youth Courts.

[9]    Ms Poupouare was reported as showing a lack of remorse or insight. In relation to the dishonesty offending, Ms Poupouare was reported as saying that she “just needs it”, and in relation to the failure to answer bail and assault, she said that she did not mean to do it.

[10]   In regard to her domestic and cultural circumstances, the Judge noted that  Ms Poupouare is affiliated with Ngāpuhi and Ngāti Whātua; she is aged 33, currently single, and has five children; her parents are very supportive, and take care of her children; she was on a jobseeker benefit at the time of the offending, has no previous work experience and has failed to complete training courses in parenting and computer skills.

[11]   The Judge considered submissions made on behalf of Ms Poupouare by defence counsel but disagreed with counsel’s submissions regarding length of sentence and  intensive  supervision.   She  considered  that  it  was  unrealistic  to  expect    Ms Poupouare to pay reparation to the victims.

[12]   Judge Bouchier identified the dishonest use of a document (the debit card) as the lead charge and set a starting point of nine months. She then imposed an uplift of six months for all the other charges, and an uplift of three months for previous convictions. The Judge considered that a discount of 25 per cent was appropriate for the guilty pleas, and that the number of pleas effectively offset the delay in entering them. A further discount of one and a half months was given for time spent on electronically monitored (EM) bail. The end sentence was therefore 12 months’ imprisonment.

[13]   The Judge remitted Ms Poupouare’s outstanding fines but declined to add a further month to the sentence in recognition of the defendant’s guilty pleas and limited means.

[14]   A sentence of 12 months’ imprisonment was imposed on the dishonest use of a document charge, and three months on all other charges, to be served concurrently. Release conditions requiring attendance at rehabilitation and budgeting programmes were also imposed.

Approach on appeal

[15]   Appeals against sentence may be brought as of right under s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the sentence and that a different sentence should be imposed.5 The Court of Appeal has confirmed that a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.6 This Court will therefore only intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and cannot be justified by the relevant sentencing principles.7

[16]   If an appeal is allowed, this Court will substitute a sentence in accordance with the sentencing principles set out in the Sentencing Act 2002 (the Act).

Submissions

Appellant’s submissions

[17]   Counsel for Ms Poupouare, Mr Spika, submits that theft under $500 should be treated as the lead offence in this case. He argues that 15 instances of theft, totalling

$1943.95 in stolen goods, constitutes more serious offending than one instance of dishonest use of a document to procure goods to the value of $191.83.

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

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

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

[18]   Mr Spika refers to Horrell v Police8 and Henry v Police9 (discussed below) to argue that the starting point and uplift should have been lower in this case.

[19]   Mr Spika acknowledges that Ms Poupouare has a history of shoplifting and a predilection to offend in a specific way. However, with reference to Reedy v Police10 and Columbus v R,11 he submits that any uplift must remain proportionate to the fixed starting point to avoid unfairly punishing an offender twice for the same offending, and suggests an uplift of 10 per cent or one month’s imprisonment.

[20]   In summary, Mr Spika submits that Ms Poupouare’s sentence should be structured as follows:

(a)Lead offence identified as theft under $500;

(b)Starting point of six months’ imprisonment to reflect 15 charges of theft under $500;

(c)Uplift of three to four months to reflect remaining four charges, being dishonest use of a document, assault, failure to answer bail (x2);

(d)Uplift of 10 per cent to reflect relevant previous convictions;

(e)Reduction of 35 per cent to reflect guilty pleas and time spent on EM bail (as imposed);

(f)End sentence of six – seven months’ imprisonment.

[21]Ms Poupouare takes no issue with the post-imprisonment conditions.

8      Horrell v Police [2016] NZHC 820.

9      Henry v Police [2016] NZHC 800.

10     Reedy v Police [2015] NZHC 1069 at [19].

11     Columbus v R [2008] NZCA 192 at [15].

Respondent’s submissions

[22]   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. In short, the respondent says that settled sentencing practice identifies the lead offence as the most serious charge, and that the starting point while high was within the available range of six to 12 months’ imprisonment. The uplifts were appropriate and consistent with comparative case law.

Analysis

Identification of lead offence

[23]   Judge Bouchier identified the dishonest use of a document as the lead offence. The maximum penalty for this offence is seven years’ imprisonment. By contrast, the maximum penalty for theft under $500 is three months’ imprisonment. I accept the respondent’s submission that the difference in maximum penalty reflects the inherent difference in seriousness between these types of offences.

[24]   I also accept the respondent’s submissions that charges should not be taken together as a lead charge. This error was identified on appeal in Henry v Police, where Clark J stated that the “orthodox approach to sentencing [is to] identify a lead charge, impose a sentence that reflect[s] the criminality of that lead charge and then impose sentences for the remaining charges”.12 Clark J also observed that “where there is a departure from the orthodox approach to sentencing there is a greater vulnerability to error”.13

[25]   In my view, it is not appropriate to group charges together in order to assess the relative seriousness of the offending. If theft under $500 were taken as the lead offence in Ms Poupouare’s case, the proper approach would be to identify the most serious instance of offending out of the 15 separate instances as the lead offence. Other offending would then be accounted for by an uplift, in accordance with the totality principle. Here, the most serious single instance of theft under $500 by Ms Poupouare

12 Above n 9, at [23].

13 Above n 9, at [25].

involved goods to the value of $250. It cannot be argued that this is more serious than one charge of dishonest use of a document where $191.83 was obtained, in light of the overall respective seriousness of the two offences, theft and dishonest use of a document. The value of the monetary loss is only one factor in a range of considerations relevant to an assessment of dishonesty offending.

[26]   Further, as the respondent submits, if theft under $500 were taken as the lead offence, and all 15 charges taken together, the starting point and end sentence suggested by Mr Spika would exceed the maximum penalty available for the offence. Where concurrent sentences are to be imposed, s 85(4) of the Act provides that “the most serious offence, subject to any maximum penalty provided for that offence, must receive the penalty that is appropriate for the totality of the offending”.

[27]   Mr Spika responds by submitting that although a starting point in excess of the three month maximum would be adopted, the ultimate sentence could be constructed by imposing cumulative sentences of say two months’ imprisonment on several of the charges and making the rest of the sentences concurrent. In that way, no individual sentence would be in excess of the maximum available sentence.

[28]   There are two difficulties with that submission. First, s 84(1) of the Act provides that cumulative sentences of imprisonment are generally appropriate if the offences are different in kind, whether or not they are a connected series of offences. Here the theft charges were all of the same kind.

[29]   Second, the charge under s 228(1)(b), carrying with it the connotation of fraud, is more serious than the individual charges of theft in this case. Although the value of the goods stolen in the ‘worst’ of the theft charges was $250, compared to $191.83 in the charge under s 228(1)(b), as noted above, the value of the monetary loss is only one of the considerations in a charge under s 228(1)(b).

[30]   For the above reasons, I consider the District Court Judge was entirely correct when she identified the lead offence as dishonest use of a document and set the starting point accordingly.

Starting point

[31]   The Judge set a starting point of nine months for the lead offence of dishonest use of a document, for which the maximum available penalty is seven years’ imprisonment.

[32]   There is no guideline judgment for dishonesty offending. However, the Court of Appeal in R v Varjan set out the relevant factors to be considered when assessing culpability for dishonesty offending, as follows:14

Culpability is to be assessed by reference to the circumstances and such factors as the nature of the offending, its magnitude and sophistication; the type, circumstances and number of the victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved; and the impact on the victims.

[33]   I accept that in this case, the offending was opportunistic and unsophisticated, occurred within one day, and the monetary value of the loss was relatively low. There was one victim and no breach of trust. The starting point should therefore be set at the lower end of the available range of up to seven years’ imprisonment.

[34]   In Horrell v Police, the appellant obtained a debit card from the victim’s home and used it to obtain over $600 through four transactions, resulting in six charges of dishonestly taking and using documents to obtain a pecuniary advantage. On appeal, the High Court imposed a starting point of six months’ imprisonment.15

[35]   In Palmer v Police,16 a starting point of nine months was imposed on appeal, where the appellant and his partner had used a debit card belonging to an elderly woman to withdraw a total of $10,200 over five days.

[36]   In Te Au v Police, the appellant stole a chequebook and obtained over $2,000 through seven transactions. The judge set a starting point of eight months.17

14     R v Varjan CA97/03, 26 June 2003 at [22].

15     Horrell v Police [2016] NZHC 820.

16     Palmer v Police HC Rotorua CRI-2009-463-82, 4 November 2009.

17     Te Au v Police HC Nelson CRI-2007-442-19, 10 December 2007 at [15].

[37]   In Doctor v Police, the appellant stole several pay wave cards and made purchases with those cards. The total sum involved is not clear. He pleaded guilty to six charges of using a document for pecuniary advantage and two charges of theft, one relating to goods valued at over $1,000 and the other relating to goods under $500. A starting point of 12 months’ imprisonment was considered appropriate.18

[38]   In my view, the offending is most similar to that which occurred in Horrell v Police which attracted a starting point on appeal of six months’ imprisonment. In Horrell, there was one victim, the stolen debit card was used the same day, an associate was involved, the total value of the transactions was just over $650, and the number of transactions was low. I consider the offending in Horrell is arguably slightly worse than the present case, but it provides a reasonable benchmark for this case.

[39]   It may be that in selecting the starting point of nine months’ imprisonment the Judge was led into error by incorrectly adding into her considerations the number of items taken in the theft charges. The Judge said:19

… Taking the charge under s 228(1)(b) as the lead charge, I am of the view that taking into account all of the factors, including the numbers of the items which were taken, …

[40]   The starting point of nine months’ imprisonment, by reference to the case law discussed above, was too high. In light of the case law referred to, I consider that a starting point of five months’ imprisonment for the charge of dishonest use of a document is appropriate in Ms Poupouare’s case.

Uplift for other offending

[41]   An uplift of six months was imposed to reflect the other offending, comprising 15 charges of theft under $500, two charges of failure to answer District Court bail and one charge of assault.

[42]In Samuels v Police an uplift of five months for seven charges of theft under

$500 and breach of release conditions, was imposed on appeal. The charges related to

18     Doctor v Police [2017] NZHC 1084 at [13].

19     Police v Poupouare [2021] NZDC 22528 at [8].

the theft of goods totalling $553.18 in value and related to shoplifting over a period of four months.20

[43]   The other cases cited by the respondent concern setting the starting point in relation to multiple shoplifting offences, rather than imposing an uplift. These cases may, however, still assist.

[44]   In Henry v Police the defendant pleaded guilty to 13 charges relating to shoplifting, as well as other charges. Five charges were for theft $500 - $1000, and the remaining eight were for theft under $500. The total value of the goods stolen was

$5,568.23. The sentencing Judge set a starting point of eight months’ imprisonment for all the shoplifting charges and an uplift of two months for 92 previous dishonesty convictions. On appeal, the High Court upheld the end sentence “despite the unusual route by which the Judge reached that outcome”.21

[45]   In McKenzie v Police four charges of theft under $500, relating to shoplifting over a period of four months, attracted a starting point on appeal of six months’ imprisonment.22

[46]In McMurtrie v Police five charges of theft under $500 and one charge of theft

$500 - $1000, relating to shoplifting over the course of one month, attracted a starting point on appeal of six months’ imprisonment.23

[47]   With  regard  to  the  considerations  for  dishonesty  offending  set  out   in   R v Varjan,24 the offending relating to the 15 charges of theft under $500 was opportunistic and unsophisticated. When questioned, Ms Poupouare stated that she was motivated by need. In relation to the offending at Briscoes, Ms Poupouare stated that she stole the items in order to sell them.

[48]   The monetary value of the loss was relatively low. The goods stolen on the 15 separate occasions of theft range in value from $10 to $250, with an average value

20     Samuels v Police [2019] NZHC 694.

21 Above n 9, at [26].

22     McKenzie v Police [2015] NZHC 2742 at [27].

23     McMurtrie v Police [2015] NZHC 1031 at [27].

24     Above n 13.

of around $130 and a total value of approximately $1,950. On four occasions, food and groceries were taken from a supermarket. On seven occasions small, high-value items were taken from retail stores.

[49]   The majority of the victims of Ms Poupouare’s offending are major retailers and supermarkets. Of the 15 victims, only two are private individuals. One of these  is the WINZ staff member whose debit card was taken from their desk, and the other is a young woman whose lawn trimmer was stolen from her property. The latter has supplied a Victim Impact Statement stating that she is upset and frustrated and feels the theft was an invasion of her privacy.

[50]   The period of offending covers 21 months, which is a relatively long duration. The time frame indicates an entrenched pattern of offending of this type and is consistent with Ms Poupouare’s previous convictions. For the above reasons, and in light of the number of charges, it is appropriate for an uplift to be set well above the maximum penalty for an individual instance of theft under $500, which is three months’ imprisonment.

[51]   I consider that an uplift of six months is appropriate here, 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 warrant the uplift which the District Court Judge imposed. When added to the lower starting point for the lead offence that results in a proper reflection of the overall offending.

Uplift for previous convictions

[52]   Judge Bouchier imposed an uplift of three months to reflect Ms Poupouare’s previous convictions for similar offending, consistent with s 9(1)(j) of the Act.

[53]   The Criminal History report shows 63 previous convictions spanning 17 years, including  14  Youth  Court  notations.  In  the  adult  courts,  Ms  Poupouare  has   26 convictions for dishonesty offences, including theft or shoplifting under $500 (x16), burglary (x4), taking/obtaining/using a bank card for pecuniary advantage (x3) and obtaining by deception (x1). She also has two previous convictions for common

assault, four convictions for failure to answer bail and seven convictions for breaching conditions relating to community work, supervision or home detention.

[54]   As noted above, the Court in Henry v Police imposed an uplift of two months for 92 previous dishonesty convictions that was in the context of an initial end sentence of nine months’ imprisonment.

[55]   In Horrell v Police, a three-month uplift was imposed for Mr Horrell’s “considerable” criminal history.25

[56]   In Walsh v Police an uplift of three months was applied on appeal to reflect 11 previous dishonesty convictions.26

[57]   In Rako v R the Court of Appeal stated that “an uplift greater than three months’ imprisonment” would have been justified in light of Mr Rako’s 17 previous convictions for dishonesty offences spanning 21 years.27

[58]   In McKenzie v Police an uplift of one and a half months was applied to reflect Mr McKenzie’s previous similar offending, although the judgment does not identify how many of his previous 39 convictions were dishonesty offences.28

[59]   In McMurtrie v Police no uplift was applied on appeal for eight previous convictions on the basis that Mr McMurtrie had never been previously sentenced to imprisonment and that “the progression to the inevitable sentence of imprisonment does, itself, take account of that earlier offending”. However, an uplift of one month was applied for offending on bail.29

[60]   The Court of Appeal has addressed the issue of uplift for previous convictions in the context of dishonesty offending in Columbus v R:30

25 Above n 14, at [43].

26     Walsh v Police HC Tauranga CRI-2010-470-36, 18 March 2011, at [29].

27     Rako v R [2015] NZCA 463 at [9].

28     Above n 20.

29     Above n 21.

30     Columbus v R [2008] NZCA 192 at [15].

Sentencing Judges must, however, guard against the risk of undue emphasis on past dishonesty convictions that lies in fixing the starting point by imposing a sentence which is primarily a punishment for previous offending ...

[61]   Ms Poupouare has a long history of similar types of dishonesty offending. She has also breached conditions of non-custodial sentences on multiple occasions. Her probation officer recommends a sentence of imprisonment due to her history of non- compliance with court orders and failure to appear. She has not previously been sentenced to a term of imprisonment. However, she has been sentenced to multiple non-custodial sentences and sentences of home detention, and these sentences have failed to deter her from further offending. This pattern of offending and non- compliance warrants an uplift. However, I accept that any uplift must be proportionate to the end sentence. The initial end sentence is 11 months’ imprisonment. That is made up of a five-month starting point on the lead charge with a six-month uplift for the other offending giving a total of 11 months. I consider that an uplift of two months is appropriate for Ms Poupouare’s previous convictions. The uplift of three months imposed by the Judge was excessive both by reference to its proportion of the sentence and the fact that this was Ms Poupouare’s first sentence of imprisonment.

[62]   There are then the unchallenged discounts to be applied. The Judge gave a separate discount of 25 per cent for the entry of guilty pleas and a discount of one and a half months for time spent on EM bail, rather than combining the discounts as one step.31

[63]   Ms Brown, for the respondent, properly accepted that whichever methodology (either the correct Moses methodology or the Judge’s methodology) is more favourable to Ms Poupouare is the one that should be adopted.

[64]   Using the Moses methodology, the adjusted starting point is 11 months (a five- month starting point for the lead offence, plus a six-month uplift for the rest of the offending). The two-month uplift for prior convictions is properly addressed at step two,32 as a percentage of the adjusted starting point. Similarly, a discount for time spent on EM bail should be calculated as a percentage and assessed at step two. Uplifts

31     As per Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

32     Stuart v R [2021] NZCA 539 at [15] – [16].

and discounts reflecting aggravating and mitigating factors personal to the offender are set off against each other at step two. In this case, two months (uplift for prior convictions) is 18 per cent of 11 months. One and a half months (discount for time on EM bail) is 8 per cent of 18 months (to reflect the discount applied by Judge Bouchier). Therefore, an 18 per cent uplift is set off against a 25 per cent discount for guilty pleas, and an 8 per cent discount for time spent on EM bail. This results in an overall discount of 15 per cent, which equates to a period of two months (rounded up in favour of Ms Poupouare). The Moses methodology would therefore generate an end sentence of nine months’ imprisonment.

[65]   Using the Judge’s methodology, the adjusted starting point is 13 months (including the two-month uplift for prior convictions). A discount of 25 per cent (for guilty pleas) is three and a half months (rounded up in Ms Poupouare’s favour). That results in a sentence of nine and a half months’ imprisonment. In her judgment, Judge Bouchier notes that Ms Poupouare spent over three months subject to EM bail but breached her bail conditions on one occasion by removing her bracelet and leaving the address.33 This observation indicates that the Judge considered a discount of one and a half months to reflect the actual time spent on EM bail and intended this discount to be applied as months, rather than as a percentage of the adjusted starting point. Deducting the one and a half months for time spent on EM bail would give a final sentence of eight months. As the most favourable outcome for Ms Poupouare is eight months’ imprisonment, that is the final sentence I will adopt.

Result

[66]   The starting point for the lead sentence was beyond the range that could properly be justified by sentencing principles. That has resulted in a sentence that is manifestly excessive. The appeal is allowed. The sentence of 12 months’ imprisonment on the lead charge is quashed and a sentence of eight months’ imprisonment is imposed on that charge.

33 At [7].

[67]   The sentences on all the other charges remain at three months’ imprisonment as imposed by the Judge. Those sentences remain concurrent with the lead charge and with each other.

[68]The post-imprisonment conditions remain as imposed by the Judge.

Gordon J