Crimes Act 1961 – sentence appeal – Criminal Procedure Act 2011 – minimum period of imprisonment – s 27 report – Tutakangahu v R [2014] NZCA 279 – Lenihan v R [2015] NZHC 3127 – R v Nguyen CA 110/01, 2 July 2001

Pompey v New Zealand Police [2023] NZHC 2378.

Kara Pompey pleaded guilty in the Auckland District Court to six charges of burglary of commercial premises in Auckland and New Plymouth and was sentenced to six years’ imprisonment. Pompey appealed this sentence on the grounds it was manifestly excessive and the sentencing judge failed to place sufficient weight on mitigating factors.

When sentencing Pompey, the District Court judge referred to the defendant’s extensive previous convictions, saying he considered Pompey had displayed a disregard for the conditions of his sentence by reoffending while serving community-based sentences. The judge referred to Pompey’s explanation for the offending, saying it showed a “cavalier and arrogant attitude” that permeated all his offending. Furthermore, the District Court did not consider Pompey’s claim that he wanted to distance himself from the Killer Beez gang (in which he had been a prospect), or his apology, were genuine. The judge noted that if Pompey were truly remorseful, he would have not such a high number of convictions.

The judge set an overall starting point of eight-and-a-half years’ imprisonment and allowed for a discount of 20% for guilty pleas and 8% percent for cultural factors. The end sentence imposed was six years’ imprisonment.

On appeal, the High Court noted there was no specific tariff for burglary, as recognised by the District Court judge, but referred to several decisions as a guide to the starting point. The judge found the District Court’s starting point of eight-and-a-half years was too high and instead imposed a six-year starting point.

The High Court determined the District Court did not err in the discounts allowed for mitigating factors.

Applicable principles: burglary – relevant sentencing factors in absence of tariff decision – planning and premeditation – value of the goods stolen – damage done to businesses – whether the starting point imposed by the District Court was too high – whether the judge failed to place sufficient weight on mitigating factors.

Held: The appeal is allowed. A starting point of six years’ imprisonment is appropriate. Taken together with total discounts of 28%, an end-sentence of four years and four months’ imprisonment was imposed.

Jasmine Jackson is an Auckland criminal defence barrister and member of the ADLS Parole Law committee.

Pompey v New Zealand Police [2023] NZHC 2378.