Police v Poi [2016] NZDC 24498 (2 December 2016)

Last Updated: 3 March 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT AUCKLAND

CRI-2016-004-011001 [2016] NZDC 24498

NEW ZEALAND POLICE

Prosecutor

v

JOHN WILLIAM POI

_Defendant

Hearing:	2 December 2016
Appearances:	S Gunn for the Prosecutor A Comeskey for the Defendant
Judgment:	2 December 2016

_{NOTES OF JUDGE R J COLLINS ON SENTENCING}

[1] Mr Poi, you are for sentence in respect of four matters; two charges of burglary, a charge of failing to answer bail, and breach of community work. Clearly the burglaries are the most serious and of the two burglaries I regard the burglary in Putaruru as more serious than the Gisborne one on the information available to me. That must have occurred when you were on bail for the Gisborne matter and awaiting sentence.

[2] In any event, with respect to Putaruru, on 26 August a burglary occurred at the victim’s address there. You entered by smashing the glass front door using a spade located outside the address. So the first aggravating factor was that the home was smashed into. While inside the address you have taken a substantial amount of jewellery, a credit card, and a cellphone from the master bedroom. You have also taken a Dyson vacuum cleaner and a PlayStation from the spare bedroom and three

_{laptop computers from the lounge.}

NEW ZEALAND POLICE v JOHN WILLIAM POI [2016] NZDC 24498 [2 December 2016]

[3] During the course of the burglary a perfume box was moved from the top of the bedside table in the master bedroom and placed on the floor. Fingerprints uplifted from the perfume box were later identified as belonging to you. So given that forensic evidence, your chances of ever successfully defending the matter were quite remote.

[4] Now, in regard to that burglary, the victim has had this to say, and sadly it is typical of what we hear from a lot of victims of burglaries. She says, after referring to her age and where she lives:

I don’t know the offender. This event has left me scared to be in my own home. I don’t feel safe there and even two months’ later I still don’t like to be home alone when it’s dark. I feel like my privacy has been violated. I am angry that these people came into my house and took things that mean a lot to me. So of the items they took are heirlooms and cannot be replaced and some of them belong to my children and weren't worth any money anyway. They had no regard for my property.

[5] Well earlier in Gisborne, it is earlier in the year on 2 February 2016, you went to a residential address and you went down the back of the property and went through a storage shed. After this you went to the rear deck of the house and went to the laundry room and rummaged through some of the victim’s belongings. You have then attempted to enter the main dwelling by jemmying a window.

[6] When that was unsuccessful you have used a broom and a jacket from the victim’s laundry and attempted to break open the rear door. In doing so you have made enough noise that the victim, who was in her bedroom, heard. She has come out to her hallway and seen you through the back door holding the broom. She has yelled at you. You have said, “Sorry,” and then run off down the driveway.

[7] In her victim impact statement she also, too, sadly, sets out the impact which is all so typical of burglary victims. She said, “This is my,” gives a full name. She said:

We have rented this house for maybe three years. Since we have lived here we have never experienced anything like this before. At the time I wasn’t physically injured but I was shaken up as it was quite frightening especially as I was home alone at the time. I think this has made us a lot more cautious about securing our home. I am very disappointed.

I think she means that one of her own has done it to her and she said, “I know we’re probably Whakapapa back to the same whānau as this guy and it really does disappoint me that our own have tried to rip us off.”

[8] Against that, Mr Poi, you have, as you acknowledge in your letter to me, a list of previous convictions. There are 18 for burglary, though the majority of those are somewhat historic and that is putting aside the Youth Court notations. You have an extremely poor record of complying with Court sentences and somewhat concerningly is the sentence in 2013 of possession for supply of methamphetamine.

[9] I do not know, and it does not really make a difference to the outcome today, but it is hard not to suspect that motivation for your offending was to gain funds for the purchase and consumption of methamphetamine.

[10] I have read the pre-sentence report and have taken into account matters there. There is no other possible outcome today other than a sentence of imprisonment.

[11] I take the Putaruru burglary as being more serious. The Court of Appeal has observed that the range for residential burglaries is between 18 months and two and a half years and that has been reinforced recently by the Court of Appeal in a case of Gorgus. So here the Putaruru burglary in my view is at least in the middle of that range given that the home was smashed into, given the way that the property was searched, and given the valuable items that were stolen.

[12] The starting point is one of two years’ imprisonment. On a totality basis, I take the uplift for the Gisborne burglary being nine months. You know that on its own it would have been a sentence of 21 months because that is the indication that the Judge in Gisborne gave you but on an uplift and on a totality basis nine months.

[13] The other offending, the failing to answer bail, and the breach of community work, in my view warrants another uplift of three months and that takes me to one of three years. In my view there has to be some uplift for your 18 previous burglary convictions. If they had been more recent in time an uplift something like

18 months may well have been appropriate. But given that many of them are historic the uplift is one of four months. That takes me to 40 months’ imprisonment or three years and four months.

[14] I accept that there is some remorse on your part. It is certainly sad that when making some attempts to move from where so much of your offending has occurred, you have been involved in this offending. But I am only prepared to make a small allowance for your expressions of remorse and that is one of two months.

[15] The allowance that I make for your guilty pleas is one of six months. So that takes me to a position of 32 months or two years and eight months.

[16] So if you stand please. With respect to the burglary in Putaruru, you are sentenced to imprisonment for two years and eight months.

[17] For the burglary in Gisborne, 12 months.

[18] Those sentences of imprisonment are concurrent.

[19] On the charge of breach of community work, you are sentenced to two months’ imprisonment; also concurrent.

[20] On the breach bail, failing to answer bail, you are convicted and discharged.

[21] Just one final matter Mr Poi, I considered whether or not in terms of the Putaruru burglary a minimum period of imprisonment greater than that which will otherwise apply pursuant to the Parole Act 2002 should be imposed. I have decided against imposing that minimum period of imprisonment so you will be eligible to apply for parole at the normal time.

R J Collins

District Court Judge