Pouwhare v Police
[2021] NZHC 1985
•3 August 2021
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2021-483-9
[2021] NZHC 1985
NGARIMU POUWHARE v
NEW ZEALAND POLICE
Hearing (via AVL): 3 August 2021 Counsel:
P A Walker for Appellant R N Benic for Police
Judgment:
3 August 2021
JUDGMENT OF CHURCHMAN J
Introduction
[1] On 28 April 2021 Mr Pouwhare (the appellant) was sentenced to a term of six months’ home detention following his conviction for two charges: one of breaching a protection order under the Family Violence Act 2018, and one of breach of intensive supervision conditions.1
[2] Mr Pouwhare now appeals his sentence on the basis that it was manifestly excessive. In particular, Mr Pouwhare submits that the sentencing Judge made a mistake in his assessment of the circumstances, namely by stating that Mr Pouwhare was subject to home detention at the time of offending, while in reality, he was actually subject to intensive supervision. It was therefore submitted that, upon commuting the
1 Police v Pouwhare [2021] NZDC 7662.
POUWHARE v NEW ZEALAND POLICE [2021] NZHC 1985 [3 August 2021]
sentence of seven months’ imprisonment to one of home detention, the Judge should have halved the length of the sentence.
[3] Mr Benic, for the respondent, accepts that the Judge erred in the methodology adopted for the appellant’s sentencing, but also submits that the end sentence was not one that was manifestly excessive.
[4] For the reasons set out below, I allow the appeal. Counsel are correct in acknowledging that the Judge erred by assuming that Mr Pouwhare was on home detention when he offended, when he was in fact under intensive supervision. This may have influenced the Judge’s discretion in imposing the sentence that he did. Also, this does not appear to be a case where a departure from the general practice of imposing a sentence of home detention equivalent to half the sentence of imprisonment is warranted. However, I also accept Mr Benic’s submission that a discount of 25 per cent for a guilty plea in these circumstances is too generous, given that Mr Pouwhare pleaded guilty on the day of the Judge-alone trial for these charges. Ms Walker submitted that a discount of 20 per cent would be appropriate and emphasised that the change of plea spared the complainant from having to give evidence. Mr Benic submitted that a discount of 15 per cent would have been generous. I agree with Mr Benic.
Background
Factual background
[5] Mr Pouwhare’s breach of the protection order against him occurred in July 2019. The victim (who Mr Pouwhare had been in a relationship with for eight years, and had two children with), returned from work to her address in Whanganui to find Mr Pouwhare bathing one of the children. Mr Pouwhare and the victim began to argue. The victim said to Mr Pouwhare that if he was going to argue then he could leave. Mr Pouwhare continued to argue with the victim regarding arrangements relating to the children. The victim asked Mr Pouwhare to leave repeatedly, and after that, he started verbally abusing her. The victim attempted to call the police and was cornered by Mr Pouwhare. The victim punched him as she thought that might deter him, and again asked him to leave, which he eventually did.
[6] Mr Pouwhare’s breach of his conditions of intensive supervision occurred on 18 December 2019, when he failed to report without reasonable excuse to his probation officer.
[7] In the Provision of Advice to Courts Report (PAC report) dated 27 April 2021, the report writer noted that Mr Pouwhare had 27 previous convictions spanning back to 2009, including six previous family harm offences, drink-driving and dishonesty offending, as well as convictions related to non-compliance with Court bail. His risk of re-offending was assessed as medium given his previous convictions and the frequency of this type of offending, and his risk of harm was also assessed as medium.
[8] The report ultimately recommended that Mr Pouwhare be sentenced to home detention with post-detention conditions and judicial monitoring. In terms of electronic-monitoring considerations, Mr Pouwhare proposed to reside with his sister at an address in Palmerston North. The property had been visited and assessed as technically suitable to an electronically-monitored sentence. The occupants had all consented to the address being used.
District Court decision
[9] The Judge firstly took the lead offence as being the breach of the protection order and noted that Mr Pouwhare had been previously convicted of six offences of the same kind. The Judge also (incorrectly) stated that Mr Pouwhare was on home detention at the time of offence. Given those factors, the Judge considered that a starting point of 10 months’ imprisonment was appropriate.
[10] Turning to mitigating factors, the Judge held that Mr Pouwhare was entitled to a discount of 25 per cent for his guilty plea, and also considered that it was appropriate to give him credit for the fact that there had been no further offending of the type Mr Pouwhare was being sentenced for over the past 18 months, which was deserving of a five per cent discount. This resulted in a total discount of 30 per cent of the 10 months’ imprisonment.
[11] The Judge noted the PAC report, and its recommendation for a sentence of home detention, which he agreed with. The sentence of seven months’ imprisonment
was therefore commuted into a sentence of six months’ home detention at Mr Pouwhare’s sister’s address in conjunction with special conditions, and post- detention conditions applying for six months after his release.
Position of the parties
Mr Pouwhare
[12] As noted above, counsel submitted that the District Court Judge erred in imposing a sentence that was manifestly excessive due to his assessment of the circumstances.
[13]Counsel referred to s 86(1) of the Parole Act 2002, which states:
86 Release date of sentence
(1) The release date of a short-term sentence (including a short-term notional single sentence) is the date on which the offender who is subject to the sentence has served half of it.
[14] Counsel also referred to the case of Brittin v Police, where this Court held that the length of a sentence of home detention is generally around half the length of the prison sentence that would otherwise have been imposed, because the released date of a short-term sentence is the date on which half the sentence has been served.2
[15] Counsel acknowledged that the decision as to whether it is appropriate to impose home detention is at the sentencing Judge’s discretion, and that the halving of a short-term sentence was not automatic – the proper approach required an evaluative assessment of all the circumstances.3
[16] However in this case, the Judge assessed the circumstances in error – as he assumed that Mr Pouwhare was subject to home detention at the time of the offending, when he was in fact subject to intensive supervision. Consequently, counsel submitted that had the Judge been aware of this, the period of home detention would have likely
2 Brittin v Police [2017] NZHC 2410 at [59].
3 In support of this proposition, counsel referred to R v Tamou [2008] NZCA 88, R v Bisschop [2008] NZCA 229, and S v R [2011] NZCA 178.
been half the seven-month sentence of imprisonment, which would have been appropriate in the circumstances.
The police
[17] Counsel for the police submitted that while the Judge erred in his sentencing methodology, in a number of respects the errors in that methodology were to the benefit of Mr Pouwhare, which meant that his end sentence was not in fact manifestly excessive.
[18] It was submitted that: firstly, the adoption of a starting point of 10 months’ imprisonment for breaches of a protection order and intensive supervision was inadequate compared to other cases. While there is no tariff case for breach of a protection order, counsel referred to the cases of Crean v Police and Robinson v Police as being analogous in these circumstances.4
[19] In Crean, there were two separate breaches of a protection order by the appellant. Both times involved the appellant drinking alcohol at the victim’s house, and then beginning to argue with the victim, and then refusing to leave the address after being told to do so. In the first breach, the victim left the address herself and contacted police, who found the appellant hiding under the victim’s bed. In the second breach, the victim again left the house, but was followed by the appellant for around a kilometre, until she locked herself into a public toilet until police arrived. On appeal, Brewer J found that concurrent sentences, each with a start point of 15 months’ imprisonment and an uplift of four months for previous convictions would reflect the gravity of the offending, given the aggravating features of the offending (including that the appellant went to the victim’s house and drunk alcohol, that he did not leave when asked, and that the police had to be called).5
[20] In Robinson v Police, the appellant was at the victim's address in Hamilton (the victim was his ex-partner). He began verbally abusing a friend of the victim who arrived at the address. The victim told the appellant to leave but he refused. He used
4 Crean v Police [2015] NZHC 3203; Robinson v Police [2019] NZHC 1412.
5 At [18]-[19].
her phone to call the landlord before the victim grabbed her phone back and called the police. The appellant continued to refuse to leave. On appeal, Jagose J upheld the 12- month sentence based on a six-month starting point and a six-month uplift to reflect eight previous convictions for breach of a protection order.
[21] Counsel submitted that Mr Pouwhare’s offending was similar to Robinson, and that a starting point of 12 months would have also been appropriate here.
[22] Second, counsel submitted that an uplift to the sentence was required to reflect Mr Pouwhare’s additional charge of breaching intensive supervision. Counsel noted that Mr Pouwhare stopped reporting to Community Corrections after a month of that sentence being imposed, and that the PAC reports described his compliance as “extremely poor”. While the maximum penalty for that offending was six months, counsel noted that uplifts of two to three months were “routinely imposed”, and that an uplift of three months was appropriate here.
[23] Third, counsel submitted that the Judge did not apply an uplift for Mr Pouwhare’s previous criminal convictions, and that an uplift for the personal deterrence of the appellant which reflected his long history of repeated breaches of sentence and Court-imposed orders would have been suitable. Counsel discussed the delay in proceedings concerning these charges as a result of Mr Pouwhare’s lack of engagement, and that therefore, the Judge was in error by granting a discount of five per cent, and instead should have imposed an uplift of 10 per cent for personal aggravating factors.
[24] Fourth, the 25 per cent discount for a guilty plea was too generous. Mr Pouwhare pleaded guilty on the day of the Judge-alone trial, and that a “generous” discount in those circumstances would have been 15 per cent at the most.
[25] Finally, while accepting that the Judge was in error in commuting the sentence of home detention in a manner equivalent to 85 per cent of the sentence of imprisonment (particularly as no reasons were given for the departure from the ordinary practice of applying a commuted sentence of home detention at half the equivalent sentence of imprisonment), it was submitted that despite this error in
methodology, the end sentence was not manifestly excessive, because the start and end point ought to have been higher in the circumstances.
Approach to appeal
[26] This appeal is brought under s 250 of the Criminal Procedure Act 2011. Under this provision, an appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.6 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.7
Relevant law and analysis
[27] Both counsel correctly acknowledged that the Judge erred in stating that Mr Pouwhare offended while on home detention, rather than on intensive supervision. As noted above, the Courts have acknowledged that the length of a sentence of home detention is generally around half the length of the prison sentence that would otherwise have been imposed, unless there are good reasons for departing from this general practice.8
[28] Here, the Judge gave no reasons for his departure. I am not convinced that this is a case where departure from that practice is warranted. In recent cases where that departure has occurred, and home detention amounting to more than half of the sentence of imprisonment has been imposed, the principles of denunciation and deterrence were given greater priority due to the seriousness of the offending. For example, in Simpson v R (which concerned an aggravated assault) Doogue J imposed a five-month period of home detention for an eight-month prison sentence because anything less “would have been insufficient to meet the requirements of denunciation and deterrence”.9
6 Tutakangahau v R [2014] NZCA 279.
7 Ripia v R [2011] NZCA 101 at [15].
8 Brittin v Police, above n 2, at [59].
9 Simpson v R [2019] NZHC 3139 at [53].
[29] In Takimoana v R (which concerned a charge of dangerous driving causing death), Duffy J considered that a home detention sentence of more than half the imprisonment sentence that she had reached was appropriate because the fact a life was lost in the offending warranted a length of sentence that was close to the upper end of the range available for home detention.10
[30] Finally, in Metua v R (which concerned sexual offending against children), Hinton J considered that six months’ home detention was appropriate in lieu of the eight-month prison sentence due to the nature of the offending.11
[31] Breaching a protection order is obviously a serious and concerning offence, but in this case the offending was not so severe as to justify a departure from the practice of halving the sentencing of imprisonment in order to uphold the principles of denunciation and deterrence.
[32] However, because the Judge has erred in coming to this decision, I need to consider the decision afresh and determine whether a 10-month starting point was in fact warranted.
[33] As noted in Jackson v Police and Pahulu v Police, the Courts have acknowledged that sentences for breaching protection orders vary to a large extent. For that reason, a case-by-case comparison is difficult because the offending is so variable and is always highly contextual.12
[34] I consider that the cases referred to by counsel for the police are more serious than the offending in this case. Crean involved two separate breaches, both arguably more serious than the current case, while Robinson involved abuse of both the victim and her friend. However, this case is more serious than Jackson, which involved breach of an order relating to the custody of children, and also more serious than Pahulu, which involved two breaches of a protection order.
10 Takimoana v R [2021] NZHC 1028 at [64].
11 Metua v R [2018] NZHC 246 at [27].
12 See Jackson v Police [2019] NZHC at [43]; and Pahulu v Police [2020] NZHC 153 at [29].
[35] I note that in one of the cases cited in Pahulu, Irvine v Police, a 10-month starting point was upheld for two breaches of a protection order where the offender called the victim 23 times over approximately 48 hours, then went to her address and banged on her windows at night.13
[36] I consider the facts of Irvine v Police to be more serious than those in the current case. Therefore, in these circumstances, a sentence of eight months’ imprisonment appears to be more appropriate. Even with an uplift of two months to take into account the breach of intensive supervision this would still only take the adjusted starting point to 10 months.
[37] However, counsel for the police are correct in expressing concern in relation to the 25 per cent guilty plea. That is the maximum discount available for a guilty plea and is more appropriately given in circumstances where the timing of that plea is much earlier than the day before trial.14 A discount of 15 per cent is more appropriate and the maximum that Mr Pouwhare could receive, given the lateness of his plea.
[38] I agree with the sentencing Judge that the case should be commuted to one of home detention, given that this was recommended in the PAC report, and that Mr Pouwhare has an appropriate address. Therefore, the sentence is structured as follows: an adjusted starting point of 10 months’ imprisonment is reduced by 20 per cent (to reflect a 15 per cent discount for guilty plea and five per cent discount for recent good behaviour) to eight months’ imprisonment. This is then be commuted to a sentence of four months’ home detention.
Result
[39] The appeal is allowed. The sentence of six months’ home detention is replaced with a sentence of four months’ home detention. The sentence of home detention is subject to the same conditions set out in [8]-[10] of the Judge’s sentencing notes of 28 April 2021.
13 Irvine v Police [2017] NZHC 3085.
14 Hessell v R [2010] NZSC 135 at [75].
Churchman J
Solicitors:
Wilkinson Smith Lawyers for Police
cc: P A Walker, Barrister, Palmerston North for Appellant
0
11
0