Pousima v Police - [2024] NZHC 2395

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-413

[2024] NZHC 2395

BETWEEN
DAVID POUSIMA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 26 August 2024

Counsel:

L Burns for Appellant

H Wagner-Hiliau for Respondent

Judgment:

26 August 2024

ORAL JUDGMENT OF MOORE J

Solicitors:
Meredith Connell, Auckland

POUSIMA v POLICE [2024] NZHC 2395 [26 August 2024]

Introduction

[1] The appellant, Mr Pousima, was sentenced in the Auckland District Court on one charge of wounding with intent to injure and another of breaching bail.1

[2] Judge P J Sinclair imposed a sentence of four-and-a-half months’ community detention and intensive supervision on the conditions outlined in the pre-sentence report. These included a requirement that he undergo programmes for alcohol and drug use and non-violence or stopping violence and any counselling as directed.

[3] Mr Pousima appeals that sentence, but only in respect of the sentence of intensive supervision. His counsel, Mr Burns, submits, as he did in the District Court, that instead of imposing a sentence of intensive supervision, the Judge should have imposed a sentence of supervision.

[4] It is unnecessary to traverse the facts of the offending other than to observe that the lead charge was the wounding with intent to injure which involved the defendant head-butting his partner who, as a consequence, lost a tooth and suffered a split lip.

[5] The basis of the appeal is narrow. It is confined to the proposition that the intensive supervision aspect of the sentence is not the least restrictive outcome appropriate in all the circumstances. A sentence of supervision would meet that mandate.

District Court decision

[6] In sentencing Mr Pousima, the Judge observed that he was assessed as posing a medium risk of harm given the nature of the charge and his use of alcohol and drugs. He was also assessed as representing a low risk of reoffending due to an absence of previous convictions. However, the Judge noted that Mr Pousima had not engaged in any programmes to address violence and, more particularly, the need to adopt self- control strategies.

1 Police v Pousima [2024] NZDC 18650.

[7] From a starting point of 20 months’ imprisonment, she allocated a 15 per cent reduction on account of youth and previous good character and a full guilty plea discount of 25 per cent. This led to a nominal end sentence of 11 to 12 months’ imprisonment which could be commuted to a sentence of intensive supervision and community detention. The Judge determined that a sentence of intensive supervision was necessary given the nature of the charge and the importance of Mr Pousima engaging in a rehabilitative programme.

Analysis and discussion

[8] The intensive supervision conditions included the pre -sentence report, which were ordered as part of the sentence, included conditions:

(a)not to possess, consume or use alcohol or drugs not prescribed;

(b)to attend and complete an appropriate alcohol and drug programme to the satisfaction of a probation officer, the specific details…

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.

Continue reading Pousima v Police

Details

AGLC: Pousima v Police [2024] NZHC 2395
Case: [2024] NZHC 2395
Decision Date: 26 August 2024

CaseChat Overview and Summary

The appellant, Mr Pousima, appealed against his sentence imposed by the Auckland District Court. The sentence was for wounding with intent to injure and breaching bail, which included four-and-a-half months of community detention and intensive supervision. Mr Pousima's counsel argued that the sentence should have been one of supervision rather than intensive supervision. The appeal was limited to the intensive supervision aspect, contending that it was not the least restrictive outcome appropriate in all circumstances, and that a sentence of supervision would suffice.

The court had to determine whether the imposition of a sentence of intensive supervision was justified under section 54C of the Sentencing Act 2002. This section stipulates that a sentence of intensive supervision may only be imposed if it would reduce the likelihood of further offending through rehabilitation and reintegration of the offender and if the offender's rehabilitative needs require conditions for a period longer than 12 months or conditions not available through a sentence of supervision. The court found that Mr Pousima's conditions were neither for a period longer than 12 months nor conditions unavailable through a sentence of supervision. Consequently, the Judge did not have jurisdiction to impose a sentence of intensive supervision.

The court held that the appeal should be allowed, and the sentence of intensive supervision was quashed and replaced with a sentence of 12 months' supervision. The balance of the sentence remained unchanged. This decision aligns with the previous ruling in Colvin v R, where a similar error in imposing a sentence of intensive supervision was rectified by substituting it with a sentence of supervision. The court's ruling ensures compliance with the statutory requirements for imposing a sentence of intensive supervision.

Orders