Pou v Police [2016] NZHC 2121 (7 September 2016)

High Court of New Zealand

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Pou v Police [2016] NZHC 2121 (7 September 2016)

Last Updated: 10 November 2016

IN THE HIG H COURT O F NEW ZEALAND AUCKLAND REG ISTRY

CRI-2016-404-231 [2016] NZHC 2121

BETWEEN	KUEVA POU Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	6 September 2016
Appearances:	C Wright for Appellant A Park for Respondent
Judgment:	7 September 2016

JUDGMENT O F LANG J [on appeal against sentence]

This judgment was delivered by me on 7 September 2016 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

_{Date...............}

POU v NEW ZEALAND POLICE [2016] NZHC 2121 [7 Septe mber 2016]

[1] Mr Pou pleaded guilty in the District Court to charges of inj uring with i ntent to inj ure, male assaults female (x 3), threatening to kill and breach of a protection order. On 17 June 2016, Judge Dawson sentenced Mr Pou to two years three months imprisonment.¹

[2] Mr Pou appeals against sentence on the basis that an error occurred during the sentenci ng process that led to the Judge i mposing a sentence that was manifestl y excessive.

Background

[3] All of the charges arose out of a series of incidents that occurred on the morni ng of 7 June 2015. The complainant in respect of each charge was Mr Pou’s for mer partner. He and the complainant had been i n a relationship for approxi matel y eight years, and at the ti me of the offendi ng had three children. There had been difficulties in the relationship for some ti me, and the couple were living apart. The complainant had obtai ned a protection order agai nst Mr Pou on 13 Februar y 2014.

[4] The i ncident occurred after a verbal argument that began when the complainant declined to make Mr Pou’s breakfast whilst he was visiting her at her home. When the complainant went to telephone a friend, Mr Pou began assaulti ng her repeatedly. Over the next ten mi nutes or so he punched her numerous ti mes about the face with a closed fist and also dragged her along the floor by her hair. When the complainant attempted to escape t hrough a bedroom window, Mr Pou applied a chokehold around her neck to stop her from leaving. This left the complainant hanging from the window with her feet above the ground.

[5] The complainant was eventually able to escape from the house but Mr Pou pursued her and pushed her to the ground. He then began strangling her with both hands, causing her to feel dizzy and short of breath. He also used one hand to squeeze the complainant’s windpipe. He then began to drag her back inside the house w hilst maintaini ng a chokehold on her neck. Whilst doi ng this, he told the complainant he would kill her if the police were called.

[6] Mr Pou’s younger sister then arrived and managed to cal m the situation down. The complainant used this opportunity to leave the house and call the police using a nearby phone box. As she called the police, Mr Pou a pproached the phone box and attempted to prevent her from completi ng the call. He was still at the phone box when the police arrived a few minutes later.

[7] The assaul ts resulted in the complainant sustaining large red scratches and swelling around her neck area and throat, as well as swelling around her eyes and cheeks.

The events that occurred in t he District Court

[8] The material before the Court does not reveal what happened to the charges between June 2015 and 16 Februar y 2016. On 16 Februar y 2016, however, Judge Dawson agreed to a request by Mr Pou for a sentence indication. ² The Judge took a starting poi nt of three years imprisonment to reflect Mr Pou’s culpability on all charges. He then allowed a discount of seven months, or 20 per cent, to reflect guilty pleas provided they were entered the same day. The Judge noted that any further deductions would be subject to a pre-sentence report and further submissions that mi ght be made by counsel.

[9] Mr Pou i mmediatel y accepted the sentence indication and pleaded guilty to the charges. He was then remanded on bail for sentence on 7 April 2016. On that date he apparentl y went to the wrong cour troom and a warrant for his arrest was issued. Later in the day the warrant was cancelled after Mr Pou found his way to the correct courtroom. By that stage, however, it was not possible for sentenci ng to proceed on that day. Mr Pou was therefore further remanded on bail to appear for sentence on 17 June 2016.

[10] The case was referred to the Restorative Justice Coordinator after Mr Pou entered his guilty pleas on 16 Februar y 2016. In an affidavit filed in support of the appeal the complainant deposes:

3. I was contacted by someone in late February 2016 and asked if I wanted to attend a restorative justice session. I did not know what restorative justice was at that stage. The caller did not explain anything about it to me. I said that I was not interested as all I understood of it was that I would need to travel to a meeting.

[11] It is common ground that the Restorative Justice Coordinator subsequentl y advised the Registry that the case was not appropriate for the restorative justice process.

[12] The complainant confir ms i n her affidavit that she attended the sentenci ng hearing on 17 June 2016. She says that by that stage she had discovered what restorative justice was, and how it mi ght help her ongoi ng relationship with Mr Pou. At court she told Mr Dean, the lawyer then acting for Mr Pou, that she wanted to participate in the restorative justice process with Mr Pou. She says she also told Mr Dean that she wanted to address the Court.

[13] When the case was called, Mr Dean applied for a fur ther adjournment. He told the Judge the adjour nment was needed for three reasons. First, Mr Pou wished to undertake a “Man Alive” course as part of his rehabilitation. Secondly, Mr Dean advised the Judge that Mr Pou and the complainant wished to undertake relationship counselling. Thirdly, he told the Judge that the complainant was present and had indicated she wanted to attend a restorative justice conference with Mr Pou.

[14] The following exchange then occurred:

MR DEAN:

Indeed, Sir. Well, it’s in those circumstances, Sir, that I ask Your Honour to

–

THE COURT:

No, I’m not going to grant an adjournment.

MR DEAN:

May it please Your Honour.

THE COURT:

He’s had more than sufficient time and there is no basis for adjourning this.

[THE COMPLAINANT]:

Am I able to speak?

THE COURT:

No, you’re not. Do the Crown wish to be heard?

[15] The Judge then proceeded to sentence Mr Pou. He adopted the same starti ng point and discount for guilty pleas as he had selected in the sentence indication. He then applied a further discount of two months to reflect Mr Pou’s remorse. On this issue the Judge observed:

... I accept that you are exhibit ing some remorse, although I suspect it is more for your current circumstances in which you find yourself. I will allow a further two months for that and on the charge of injuring with intent to injure, you are sentenced to two years and three months’ imprisonment. ...

Ground of appeal

[16] The sole ground of appeal is that the Judge erred in refusing the application for an adjour nment to enable the parties to attend a restorative justice conference. Mr Wri ght submi ts that a positive outcome from such a conference would have had a signi ficant effect on the end sentence i mposed on Mr Pou. He contends that it may have reduced the sentence of i mprisonment to one of two years or less so that the Judge could have considered imposing a sentence of home detention.

Was t he Judge required to adjourn sentencing to enable a restorative justice conference to be held?

[17] Mr Wri ght’s primar y argument is that the Judge erred in law because he had no discretion to decline the application for an adjour nment. He relies for this submission on s 24A of the Sentencing Act 2002, which provides:

24A Adjournment for restorative justice process in certain cases

(1) This section applies if —

(a) an offender appears before a District Court at any time before sentencing; and

(b) the offender has pleaded guilty to the offence; and

(c) there are 1 or more victims of the offence; and

(d) no restorative justice process has previously occurred in relation to the offending; and

(e) the Registrar has informed the court that an appropriate restorative justice process can be accessed.

(2) The court must adjourn the proceedings to—

(a) enable inquiries to be made by a suitable person to determine whether a restorative justice process is appropriate in the circumstances of the case, taking into account the wishes of the victims; and

(b) enable a restorative justice process to occur if the inquiries made under paragraph (a) reveal that a restorative justice process is appropriate in the circumstances of the case.

[18] Mr Wright submits that this Court should i nterpret the requirements of s

24A(2) liberally because it was enacted with the interests of victi ms i n mi nd. He effectively contends that s 24(2)(b) requires a sentencing court to adjourn a proceeding to enable a restorative justice process to occur whenever it receives advice that a complainant is willing to participate in that process. Mr Wright submi ts that the Judge was therefore obliged by law to adjourn the proceeding once Mr Dean advised him that the complainant wished to participate in a restorative justice conference with Mr Pou.

[19] I do not accept this submission. The wording used in s 24(2)(b) makes it clear that the Court is only required to adjour n a proceeding for a restorative justice process to occur where enquiries carried out under s 24(2)(a) have revealed that such a process is appropriate in the circumstances of the case. In the present case the enquiries carried out under s 24A(2)(a) had already revealed that the restorative justice process was not appropriate because the complainant did not wish to participate. For that reason Mr Dean’s advice to the Judge that the complainant had changed her mi nd and now wished to participate in a restorative justice conference did not trigger the obligation to adjourn the proceedi ng under s 24A(2)(b).

[20] It was therefore a matter for the Judge’s discretion as to whether to grant the

adjournment based on the i nfor mation he received from Mr Dean a t the hearing.

Did t he Judge err in exercising his discretion not to adjourn the sentencing?

[21] Although the Judge did not give reasons for his decision, several factors are likely to have influenced hi m in making it. First, it is evident from the Judge’s remar ks set out above that he considered Mr Pou had already had ample opportunity to engage i n the activities in respect of w hich he sought the adjour nment.

[22] Secondly, the charges against Mr Pou had been before the Court since June

2015. The Judge would also have been aware that sentencing had already been adjourned on one occasion. He was no doubt concerned to ensure the proceeding was brought to a conclusion.

[23] Thirdly, the victi m i mpact statement provided by the complainant did not

assist Mr Pou’s cause. It read as follows:

We have had a lot of past history of Domestic Violence between me and Kuera Pou, this is the reason we don’t live together, I always hope for a change everytime I come up for visits but it always ends in violence this time I have had enough. It’s not worth the pain and stress as we have 3 kids. Another on the way I need to keep my attention on my kids. I recommend him to go rehab as he is a bad meth/p abuser and to get h elp for himself. Nobody deserv es to live in violence.

[24] Further more, Mr Pou has an extensive list of previous convictions stretchi ng back to 2006. They i nclude convictions for speaki ng threateningl y, male assaults female and being in possession of cannabis and methamphetami ne. He also has numerous previous convictions for failing to compl y with Court orders. These may have led to the Judge bei ng sceptical regarding the practical utility of the restorative justice process given the nature and seriousness of the present offendi ng.

[25] In addition, the Judge intended to appl y a discount of two months to reflect Mr Pou’s remorse. He did so even though he obviousl y suspected any remorse was principally for the situation in which Mr Pou found hi mself. The Judge therefore probably considered that a further adjour nment would serve little practical purpose in ter ms of likely discount.

[26] The onl y issue that gives me cause for concer n arises out of the fact that the Judge refused the complainant’s request that she be per mitted to address the Court i n relation to the issue of the proposed adjournment.

[27] Any challenge to the exercise of a judicial discretion must establish er ror of principle. This can i nclude failing to take i nto account a relevant consideration. In the present case I consider that the complainant’s views were clearly relevant to the exercise of the discretion to adjour n the proceeding further. Had the complainant made her views known to a member of court staff, a police employee or a probation officer, that person would have been obliged to refer the request to a suitable person

so that a restorative justice conference could be arranged. ³ For that reason the Judge

ought to have taken the complainant’s views into account when considering the application for an adjour nment. Further more, he ought to have agreed to the complainant’s request that she be given the opportunity to explain w hy she had changed her mi nd and now considered the restorative justice process could be of benefi t to her and her family.

[28] Had the complainant been given that opportunity, it is likely she would have told the Judge that in practical ter ms she has no option but to deal with Mr Pou in the future because he is the father of her children. She may also have told the Judge that restorative justice provided a means by which she and Mr Pou could discuss the manner i n w hich he was to conduct hi mself in the future. Those considerations were not necessarily directly relevant to the issue of sentence but they were clearly important to the complainant. They were also in the wider interests of the community because it is not i n the communi ty’s interests for Mr Pou to continue to offend in this way in the future.

[29] The complainant may not ulti matel y have persuaded the Judge that these considerations warranted a further adjournment but that is by no means certai n. Had he listened to the complainant, however, the Judge may have been persuaded that her interests outweighed the desirability of disposing of the proceeding without further

_{delay. For that reason I consider the Judge erred in not taki ng into account the}

³ Victims’ Rights Act 2002, s 9.

complainant’s views regarding the proposed adjournment. It is now necessary to consider whether that error may have affected the ul ti mate outcome.

Might t he error have affected the ultimate outcome ?

[30] It is obviously i mpossible to predict whether the Judge’s refusal to grant an adjournment would have affected the end sentence the Judge i mposed. Mr Wright has nevertheless referred me to decisions of this Court in which remorse and a positive outcome to the restorative justice process have materially reduced the sentence i mposed.⁴ Had the restorative justice process been undertaken in the present case, it would have provided Mr Pou with a further means by w hich to demonstrate his remorse, acknowledgement of responsibility and desire to act differentl y i n the future. That i n tur n may have persuaded the Judge to provide hi m with a greater discount to reflect those factors.

[31] I do not consider it practicable to remit the proceeding to the District Court for Mr Pou to be re-sentenced taking i nto account the outcome of any restorative justice conference that might now be held. Instead I consider the appropriate remedial action is to provide Mr Pou with the additional benefit he may have received if he had participated positively in the restorative justice process.

[32] Several factors suggest that any additional discount would have been limited. As the complainant’s victi m i mpact statement demonstrates, the present charges are symptomatic of a lengthy histor y of discord and violence i n the relationship. The manner in w hich Mr Pou reacted to the perceived slight by the complainant on the present occasion suggests strongl y that physical violence is his immediate response to any action by her that displeases hi m. His previous convictions lend weight to that concer n. Further more, Mr Pou would have participated in the restorative justice process knowing that his performance could materially affect his sentence. This could call into question the genuineness of that perfor mance. The very fact that Mr Pou offended i n the way that he did on the present occasion would also cause the

_{Cour t to regard promises he mi ght make about the future with caution.}

⁴ R v Khan HC Rotorua CRI 2009 063 509, 13 August 2010; R v Daljit Singh HC Auckland CRI

2014 004 7419, 14 July 2015.

[33] These factors persuade me that it is highl y unlikely that the Judge would have reduced the sentence further by more than two months even if Mr Pou had performed creditably at a restorative justice conference. I therefore propose to reduce the end sentence by that amount.

Result

[34] The appeal is allowed. The sentences of two years three months imprisonment i mposed on the lead charges of i njuring with intent to inj ure and assaulting a female are quashed. In their place I substitute concurrent sentences of

_{two years one month i mprisonment. All other sentences remai n intact.}

Lang J

Solicitors:

Crown Solicitor, Auckland