RAWIRI v R [2021] NZHC 1573

RAWIRI v R [2021] NZHC 1573 [29 June 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2021-404-000239[2021] NZHC 1573BETWEEN CHASE TYRONE RAWIRIAppellantAND THE QUEENRespondentHearing: 29 June 2021Appearances: S J Galler for the AppellantA Al-Janabi for the RespondentJudgment: 29 June 2021ORAL JUDGMENT OF VAN BOHEMEN JSolicitors/Counsel:SJ Galler, AucklandCrown Solicitor, Kayes Fletcher Walker Limited, ManukauIntroduction[1] Chase Rawiri appeals the sentence of three years' imprisonment imposed byJudge D J McNaughton in the District Court at Manukau1 after Mr Rawiri had pleadedguilty to:(a) Five charges of unlawful possession of a firearm;2(b) Five charges of unlawful possession of explosives;3(c) One charge of failing to stop for red and blue lights on a third orsubsequent occasion;4 and(d) One charge of unlawfully using a motor vehicle.5[2] Mr Galler, counsel for Mr Rawiri, submits that the end sentence was manifestlyexcessive. Mr Galler says that the Judge erred by setting the starting point too highfor the lead firearms offending, failing to take the totality principle into account whenuplifting the starting point, and giving manifestly excessive uplifts to take account ofMr Rawiri's previous convictions and offending while on bail.[3] The Crown opposes the appeal.Background[4] Mr Rawiri's convictions relate to three instances of offending in 2018 and2019.1 R v Rawiri [2021] NZDC 6482.2 Arms Act 1983, s 45(1). Maximum penalty four years' imprisonment or a $5,000 fine.3 Arms Act, s 45(1).4 Land Transport Act 1998, s 52A(1)(a)(ii) and (5). Maximum penalty three months' imprisonment.The Court must also order that the offender be disqualified from holding or obtaining a driverlicence for two years.5 Crimes Act 1961, s 226(1). Maximum penalty seven years' imprisonment.December 2018[5] In December 2018, a black Mercedes Benz was stolen from Glendene duringa burglary. It was located three weeks later outside Mr Rawiri's partner's address inMāngere East, with false registration plates. A handbag located inside the carcontained a modified .22 calibre Colt M4 carbine with an attached 24-round magazine.The firearm was loaded with 10 live rounds in the magazine. Two containerscontaining a further 59 live rounds were located in the handbag.May 2019[6] In May 2019, in the Tauranga area, Mr Rawiri was driving a silver MercedesBenz which belonged to his brother. Police pursued the vehicle after Mr Rawirirefused to stop when signalled. When the vehicle was later found and searched, Policefound a 5.56 mm calibre M4 military-style semi-automatic rifle with 18 live rounds inthe 30-round capacity magazine located in the rear footwell. Police also located a 12-gauge pump action shotgun with no stock and a pistol grip, loaded with three liverounds. Police also found a spent shell in the boot of the car.July 2019[7] In July 2019, the Police executed a search warrant at a Māngere Bridge addresswhere Mr Rawiri was living at the time and found a further two firearms. These werea modified .22 calibre AK47 derivative rifle with a 24-round magazine attached, whichwas found under the mattress in Mr Rawiri's bedroom, and a cut down single barrel12-guage shotgun, which was also found in the room, together with a bag containing13 live 12-guage ammunition rounds.Sentence Indication[8] On 1 July 2020, Judge A M Wharepouri gave Mr Rawiri a sentence indicationof a headline starting point of three years five months' imprisonment. This comprisedthree years and two months for the firearms and ammunition charges, one month forthe other charges and an uplift of two months for previous convictions and offendingwhile on bail. Judge Wharepouri indicated that modest deductions would be made atsentencing for any mitigating circumstances raised, together with a guilty pleadiscount of 25 per cent.6[9] This sentence indication was not accepted by Mr Rawiri.Application for an extension of time to file appeal[10] Mr Rawiri seeks an extension of time to file his appeal because he filed theappeal in this Court on 17 May 2021, four days beyond the 20 day appeal periodprovided for in s 248(2) of the Criminal Procedure Act 2011 (CPA). Mr Gallerexplains that the appeal was initially filed in error, but within the appeal period, in theCourt of Appeal.The District Court decision[11] Judge McNaughton adopted an initial starting point of three and a half years'imprisonment. He considered this to be the minimum available starting point "giventhe nature of these firearms, given how dangerous they are, that they were modifiedand loaded with loaded magazine and readily available".7 The Judge stated that he didnot accept the explanation Mr Rawiri had given for having the guns (that he was goingto use them to go hunting and to shoot cows) and said that the "blindingly obvious"reason Mr Rawiri was in possession of the guns and firearms was because of hisassociation with the King Cobras gang.8 The Judge observed that a starting point offour years could have been adopted given the climate of gang activity and the use offirearms in South Auckland. The Judge considered that a starting point of three yearssix months' imprisonment was the minimum available.[12] In arriving at this starting point, the Judge noted that he was not bound byJudge Wharepouri's sentence indication and that, in any event, Mr Rawiri had notaccepted the indication and had entered his guilty plea just before trial.6 R v Rawiri DC Manakau CRI-2019-092-005224, 1 July 2020.7 R v Rawiri, above n 1, at [21].8 At [21].[13] The Judge applied a six-month uplift for the offending in relation to the stolenMercedes Benz, a second six-month uplift for Mr Rawiri's previous firearmsconvictions, and a three-month uplift to reflect his offending on bail and while subjectto release conditions. In arriving at these figures, the Judge considered Mr Rawiri'scriminal history, dating back some 20 years, which included two Arms Act 1983convictions (one for unlawful possession of a pistol in 2018 for which he wassentenced to 18 months' imprisonment) together with convictions and prison sentencesfor burglary, receiving, unlawful taking, assault with and without a weapon, androbbery. The Judge noted that Mr Rawiri was subject to release conditions from aprevious sentence of imprisonment when all three instances of the current offendingoccurred. Moreover, he was on bail for the December 2018 and May 2019 offendingwhen he was charged with the July 2019 offences.[14] Together, the initial starting point and uplifts resulted in a final starting pointof four years and nine months' imprisonment.Discounts[15] The Judge gave a 15 per cent discount for the guilty pleas – which heconsidered to be the absolute maximum he would apply given that the pleas were lateand the charges were laid back in 2019. 9[16] After having reviewed the cultural report and Mr Rawiri's circumstances, theJudge gave a 20 percent discount for cultural factors. He noted that while Mr Rawirihas some degree of cultural connectedness and that it was perhaps not the worstexample of systematic deprivation and disadvantage, a large discount was appropriateto reflect that Mr Rawiri had faced early exposure to violence, drugs, alcohol,disrupted education and traumatic exposure to sexual abuse. A one-month discountwas given for remorse, expressed in a letter, and the steps Mr Rawiri had taken tochange such as completing courses. The Judge noted that as Mr Rawiri had alreadybeen in custody for a year and a half and he imagined that an appearance before theparole board was not too far away.9 At [23].[17] Accordingly, a final sentence of three years was imposed together with amandatory disqualification from driving for two years in relation to the charge offailing to stop for lights and sirens.Approach on appeal[23] Section 250(2) of the CPA provides that the Court must allow an appeal againstsentence if it is satisfied that there is an error in the sentence and a different sentenceshould be imposed. In any other case, it must dismiss the appeal.[24] Section 251(1) of the CPA provides that if a Court allows an appeal againstsentence it must set aside the sentence and impose another sentence that it considersappropriate.[18] The Court of Appeal has confirmed that, in applying s 250(2) of the CPA, theCourt should continue to apply the long-established approach to reviewingsentences.10 An appeal against sentence will be successful only if the appellant canpoint to an error, either intrinsic to the Judge's reasoning, or as a result of materialssubmitted on the appeal, that vitiates the lower Court's sentencing discretion.11 Unlessthere is a material error in the end sentence, the Court will not intervene.12 There willbe a material error if the end sentence is manifestly excessive or wrong in principle.13In general, the focus is on whether the end sentence is within the available range, ratherthan the process by which the sentence was reached.14 However, there may be caseswhere there has been error that requires correction, even if the sentence imposed iswithin range.15[19] Section 248(4) provides that the first appeal court may, at any time, extend thetime allowed for filing a notice of appeal.10 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [30]; and Tamihana v R [2015]NZCA 169, at [14].11 Tamihana v R [2015], above n 10, at [29] – [30]; and Tamihana v R, above n 10, at [14].12 Te Aho v R [2013] NZCA 47 at [30]; and Tamihana v R, above n 10, at [14].13 Tamihana v R, above n 10, at [14].14 Tutakangahau v R, above n 10, at [36]; and Tamihana v R, above n 10, at [14].15 Tutakangahau v R, above n 10, at [36].Counsel submissions on the issues in contentionThe starting point[20] Mr Galler submits that a three-year starting point should have been set for thelead charges under the Arms Act. Mr Galler refers to R v Cochrane,16 where Gendall Jset a starting point of two years for a defendant who pleaded guilty to four charges ofunlawful possession of a firearm and one charge of unlawful possession ofammunition, after being found in possession of two sawn-off shotguns modified withpistol grips, a pump action shotgun and a .223 calibre assault rifle, along withammunition hidden in a secret compartment in a dwelling house. Mr Galler acceptsthat Mr Rawiri's offending was "slightly more serious" than that in Cochrane becausehe was found in possession of one more firearm and a higher number of military styleweapons. For these reasons, he says starting point of three years would be appropriate.[21] Mr Galler also refers to Gray v R17 and R v H18 where uplifts of two years'imprisonment in respect of serious Arms Act offending (as well as other offending inGray v R), were added to starting points set for serious drug offending. Mr Gallersubmits that the discussion in those cases indicates that, if those cases had involvedstand-alone firearms offending, a starting point of between three and four years'imprisonment would have been appropriate in Gray, which involved more serousfirearms offending than the present case, and that a starting point in the vicinity ofthere years would have been appropriate in R v H.[22] Ms Al-Janabi, counsel for the Crown, submits that Judge McNaughton did noterr in adopting a starting point of three years and six months' imprisonment for thefirearms offending. While the starting point may have been at the upper end of theavailable range, it reflected the number of firearms and items of ammunition foundover three separate occasions during a seven month period.[23] Ms Al-Janabi refers to two decisions where the Court has held that startingpoints of between two to three years' imprisonment are appropriate for possession of16 R v Cochrane [2020] NZHC 1485.17 Gray v R [2015] NZCA 297.18 R v H [2018] NZHC 1760.a single shotgun. In Herewini v Police,19 Moore J noted a "general trend" of upholdinga starting point of between two and two and a half years' imprisonment for possessionof a single sawn- off shotgun. In Atkinson v Police,20 Heath J held that a starting pointof three years and six months' imprisonment was appropriate where the offender hadbeen found with a single loaded cut-down pump action shotgun together with adetonator attached to a fuse and a stick of Powergel explosive. Ms Al-Janabi alsosubmits that the decisions in Gray and R v H are of limited assistance because thefirearms offending was dealt with as an uplift and the cases did not articulate thediscrete starting point that would have been appropriate if the firearms charges hadbeen the lead offences.[24] For these reasons, Ms Al-Janabi submits that the starting point of three yearsand six months' imprisonment was within range, and that the Judge did not err in theemphasis he placed on the aggravating features of the offending, especially itsrecidivism and its apparent gang-related context.Uplifts[25] Mr Galler submits that the uplift of six months' imprisonment for the chargesof failing to stop and unlawfully using a motor vehicle was excessive and has led to amanifestly excessive starting point. He submits, with reference to the Court ofAppeal's comments in R v Barker,21 that a three-month uplift was appropriate to takeinto account the totality principle.[26] Mr Galler says the Judge further erred in the six month uplift for previousconvictions and in the three month uplift for offending while on bail and while subjectto release conditions. He notes that Mr Rawiri's firearms charge in 2014 related onlyto the possession of one shotgun shell. While he accepts the 2018 conviction forpossession of a pistol is relevant, he points to decisions which, he says, support thesubmission that an uplift of two months would have been appropriate.2219 Herewini v Police [2014] NZHC 2396 at [26].20 Atkinson v Police HC Auckland CRI-2006-404-0395, 20 March 2007.21 R v Barker CA57/01, 30 July 2001.22 Gunbie v New Zealand Police [2019] NZHC 250; Smith v New Zealand Police [2014] NZHC2196; and Aspinall-Su'a v New Zealand Police [2020] NZHC 3022.[27] Ms Al-Janabi submits that the Judge's six-month uplift for the vehicle-relatedoffending was within range. She notes that uplifts of greater magnitude have routinelybeen upheld on appeal for similar offending, and refers to this Court's decisions inBirch v Police23 and Duxfield v Police24 where uplifts of between 12 and 18 monthswere imposed for the charge of unlawfully taking a motor vehicle, which carries thesame maximum penalty as the charge to which Mr Rawiri pleaded guilty.[28] Ms Al-Janabi also says the offending was moderately serious and, inaccordance with s 85 of the Sentencing Act 2002, warranted separate recognitionprovided the total period of imprisonment was not wholly out of proportion to thegravity of the overall offending. She also submits that an uplift of six months cannotbe excessive when this offending, would on its own, attract a starting point of 12months' imprisonment.[29] Ms Al-Janabi also argues that the uplift of nine months' imprisonment to reflectMr Rawiri's offending while on bail and his previous convictions was appropriate.She notes Mr Rawiri had only been on EM bail for one month when he committed theJuly offending which resulted in new charges of the same kind as those for which hewas on EM bail. Moreover, Mr Rawiri has 47 previous convictions for offendingwhile on bail – including all three of his previous firearms offences. Ms Al-Janabinotes that Mr Rawiri has two firearms convictions and that this pattern of offendingdemonstrates a recidivist pattern of unlawful involvement with firearms which posesa danger to the community.Was the end sentence manifestly excessive?[30] Mr Galler submits if his submissions on starting point and uplifts are accepted,that would result in an end sentence of two years and four months' imprisonment. Onthis basis the end sentence of three years was manifestly excessive.[31] Ms Al-Janabi submits that the final sentence of three years' imprisonment,taken overall, was not manifestly excessive because:23 Birch v Police [2020] NZHC 878.24 Duxfield v Police [2015] NZHC 3018.(a) Even if the Court considers that the starting point was high, generousdiscounts were applied for personal mitigating factors and Mr Rawiri'slate guilty plea; and(b) The end sentence appropriately reflects the need for deterrence giventhe seriousness of Mr Rawiri's offending and the frequency with whichMr Rawiri has been before the Court for similar offending.DiscussionExtension of time to file notice of appeal[32] I am satisfied that an extension of time should be granted. The delay in filingthe notice of appeal was a matter of a few days and arose from a mistake by counsel.Starting Point[33] There is no tariff case for firearms offending and, as counsel have observed,there are few decisions where sentences have been set on the basis that the firearmsoffending was the lead. However, where there is a single firearm with no mitigatingcircumstances, a starting point in the vicinity of two to three years has been adoptedby this Court.25 And, as the Court of Appeal has stated in Torea v R, possession offirearms, particularly by those with gang connections, will require a sentence that isan effective deterrent to the offender and to others who may be similarly minded.26While I note Mr Galler's submission that there is no evidence to establish thatMr Rawiri's possession of the firearms was directly connected to Mr Rawiri's gangmembership, I consider Judge McNaughton's observations about that connection to bebased on an inference available to the Judge, given that it is well-established thatfirearms use by gangs has become more prevalent.25 In addition to the cases referred to by Crown counsel see also R v Fonotia [2007] NZCA 188,[2007] 3 NZLR 338 at [41] (loaded shotgun in the boot of car, offender claimed it was forprotection, court accepted the two year starting point but considered it at the lower end); and Toreav R [2011] NZCA 96 (starting point of two years and six months appropriate where the singlefirearm was loaded and ready to use with obvious gang overtones).26 Torea v R, above n 25, at [15].[34] I have taken note of the decisions referred to by Mr Galler. I acknowledge thatR v Cochrane has some similarities to the facts of the present case. However, that wasa case where, in a single incident, the Police found four firearms and a quantity ofammunition hidden in a secret compartment. That is rather different from the multipleinstances of firearms being found in the present case, some of which were loaded andstored in locations allowing ready access and use. I consider the offending here to besignificantly more serious.[35] I also consider the decisions in Gray and R v H to be of marginal assistancebecause they involved sentences imposed for firearms offending in a context wherethat offending was not a lead offence.[36] I consider that the starting point of three years six months' imprisonmentadopted by Judge McNaughton was within the range available. The Judge identifiedthe appropriate aggravating features of the offending, including the readily availablenature of the five firearms, the fact that many were loaded, the volume of ammunition,the gang-related context of the offending, the military style nature of the weapons, andthe circumstances that suggested that Mr Rawiri was regularly in possession offirearms and ammunition and had a ready means of access to these (even while on EMbail). The Judge was entitled to place the emphasis which he did on these factors.[37] The maximum penalty under s 45 is four years' imprisonment, even forpossession of a single firearm. Where the offending involving five charges for fivefirearms and five charges for possession of a large quantity of ammunition in thecircumstances described above, I am satisfied that a starting point of three and a halfyears' imprisonment was within the range available to the Judge.Uplifts[38] I am satisfied that an uplift of six months for the motor vehicle offending wasappropriate in the circumstances. This offending was different in kind from the leadfirearms offending. In accordance with s 85(1) of the Sentencing Act, the sentenceimposed for that offending should reflect the seriousness of the offending. While I donot consider this offending to be especially serious, an uplift of six months is hardlydisproportionate given that significantly higher uplifts have been applied for similaroffending carrying the same maximum penalty.27[39] Of course, the sentence must reflect the totality of the offending, but that is aconsideration to be applied when assessing the end sentence, as recognised in s 85(2)of the Sentencing Act. For that reason, I do not consider that Judge McNaughton canbe faulted for not mentioning totality considerations when setting this uplift.[40] I agree the six-month uplift imposed for Mr Rawiri's previous two firearmsconvictions was high and carries the risk of punishing Mr Rawiri twice for the sameoffending. I consider that an uplift of two months would have been more appropriate.However, whether the uplift of six months has resulted in a manifestly excessivesentence requires consideration of the end sentence, including the discounts appliedby Judge McNaughton.[41] On the other hand, I do not accept that the three-month uplift for offendingwhile on EM bail and subject to release conditions was excessive. Not only didMr Rawiri offend while subject to release conditions for all the charges, heaccumulated charges in July of the same nature while on EM bail.Was the end sentence manifestly excessive?[42] As Mr Galler has emphasised, Judge McNaughton did not refer to the principleof totality in setting the sentence. That omission is not of consequence as long as thesentence imposed is in proportion to the gravity of the offending.28 In addition, it iswell established that, provided the sentence reflects the totality of the offending, it isnot for an appellate Court to determine that the total sentence should have beenconstructed in any particular way.29[43] Here, Mr Rawiri's final sentence was one of three years. That was the resultof Judge McNaughton:27 Birch v Police, above n 23; and Duxfield v Police, above n 24.28 Kite v R [2018] NZCA 485 at [21].29 See for example R v William CA91/00, 31 May 2000 at [11]; R v Barker CA57/01, 30 July 2001at [10]; R v Xie [2007] 2 NZLR 240; (2006) 22 CRNZ 949 (CA) at [p16]; Houston v R [2013]NZCA 581 at [11]; and R v Dodd [2013] NZCA 270 at [32] – [33].(a) Setting a starting point of three years and six months' imprisonment;(b) Adding uplifts of six months for the motor vehicle offending, sixmonths for the previous firearms offending and three months foroffending while on EM bail and subject to release conditions; and(c) Making deductions of 35 per cent for Mr Rawiri's guilty plea (15 percent) and cultural factors (20 per cent).[44] Given that Mr Rawiri pleaded guilty on the morning of a six day stand-byfixture, the deduction of 15 per cent for his guilty plea could be considered verygenerous, having regard to the Supreme Court's comments in Hessell v R that a "realjustification" for a discount will be required if the plea is entered after the trial hascommenced.30 In the circumstances, the deduction for Mr Rawiri's guilty plea couldhave been much lower and limited to the order of five per cent.[45] I accept that the deduction for cultural factors was appropriate. Nonetheless,even if the uplift of six months for the previous firearms offending was too high, I amsatisfied that the generous discount applied by the Judge for the guilty plea broughtthe final sentence down to one which was within the available range and reflected thetotality of the three sets of offending over a seven month period as a whole.[46] For these reasons, I am satisfied that the final sentence of three years'imprisonment was not manifestly excessive.Result[47] The time for filing the notice of appeal is extended.30 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [76].[48] The appeal is dismissed.______________________G J van Bohemen J