Pouwhare v Police - [2021] NZHC 1985

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…

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: [2021] NZHC 1985
Decision Date: 3 August 2021

CaseChat Overview and Summary

Ngarimu Pouwhare appeals the sentence imposed by the District Court following his conviction for two charges: one of breaching a protection order under the Family Violence Act 2018, and one of breaching intensive supervision conditions. Pouwhare contends that his sentence of six months' home detention was manifestly excessive due to an error in the District Court's assessment of his circumstances. In particular, he argues that the sentencing judge erred in assuming that he was subject to home detention at the time of the offending, when he was actually subject to intensive supervision. The police accept that there was an error in the sentencing methodology but submit that the sentence was not manifestly excessive.

The High Court found that the District Court judge erred in his assessment of the circumstances, and that this error may have influenced the sentence imposed. The High Court also found that there was no good reason to depart from the general practice of imposing a sentence of home detention equivalent to half the sentence of imprisonment. However, the High Court found that a discount of 25 per cent for a guilty plea was too generous, given that Pouwhare pleaded guilty on the day of the trial. The High Court agreed with counsel for the police that a discount of 15 per cent would have been generous. The High Court imposed a sentence of four months' home detention, reduced by 20 per cent to reflect a 15 per cent discount for guilty plea and five per cent discount for recent good behaviour.

The High Court allowed the appeal and replaced the sentence of six months' home detention with a sentence of four months' home detention, subject to the same conditions as the original sentence.

Orders