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 of the appropriate programme to be determined by a probation officer;

(c)to attend and complete an appropriate non-violence programme to the satisfaction of a probation officer, the specific details of the appropriate programme [to] be determined by a probation officer;

(d)to undertake and complete appropriate assessment, treatment/counselling as directed by and to the satisfaction of a probation officer; and

(e)not to associate with or contact any victim(s) of the offending without the prior written approval of a probation officer or [their] express consent.

[9]        Significantly, these conditions were the same as those set out in the pre- sentence report in the event a sentence of supervision is ordered.

[10]      The Crown has responsibly accepted that the appeal must be allowed. In their helpful written submissions, the Crown has pointed out that the starting point is s 54C of the Sentencing Act 2002 (“the Act”), which provides when a sentence of intensive supervision may be imposed:

54C     Guidance on use of sentence of intensive supervision

A court may impose a sentence of intensive supervision only if it is satisfied that—

(a)a sentence of intensive supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender; and

(b)the nature of the offender’s rehabilitative or other needs requires the imposition of conditions—

(i)for a period longer than 12 months; or

(ii)       that   are    not    available    through    the    sentence    of supervision.

[11]      Here, Mr Pousima’s conditions were not imposed  for a period longer than  12 months nor were any conditions imposed that were not available through a sentence of supervision (such as residential rehabilitation or judicial monitoring). As noted earlier, the pre-sentence report set out the same conditions for a sentence of supervision as it did for one of intensive supervision.

[12]     This Court faces an all but identical position as that in Colvin v R when Hinton J observed: 2

[33]   However, while I agree with the Judge’s conclusion that there needed to be a community-based sentence imposed and that it should require monitoring and treatment for 12 months, s 54C of the Act stands in the way of that sentence being intensive supervision. The Judge has not considered conditions were required for longer than 12 months (s 54C(b)(i)), nor has he imposed conditions not available through the sentence of supervision (s 54C(b)(ii)). At least in terms of the special conditions imposed by the Judge, these can be and as I understand it are, regularly imposed on a sentence of supervision.

[34]   The Judge therefore did not have jurisdiction to impose a sentence of intensive supervision. In those circumstances the sentence

2      Colvin v R [2021] NZHC 400 at [33]-[34]. Footnote omitted.

is in error and a sentence of 12 months’ supervision should be substituted.

[13]      I conclude the same situation applies here. The attempt to impose a sentence of intensive supervision in these circumstances was a logical and proportional response to the appellant’s needs. It is understandable that the Judge approached the issue as she did. Unfortunately, it was a sentence which the law says cannot be imposed in these circumstances. It was thus imposed in error and must be replaced with a sentence which the law does permit, namely supervision.

Conclusion and result

[14]Accordingly, the appeal is allowed.

[15]      I direct that the sentence of intensive supervision is quashed and replaced with a sentence of 12 months’ supervision. For the avoidance of doubt, the balance of the sentence remains.

Moore J