POWHIRO v POLICE [2018] NZHC 2293

POWHIRO v POLICE [2018] NZHC 2293 [31 August 2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2018-409-000066CRI-2018-409-000067CRI-2018-409-000068[2018] NZHC 2293BETWEEN MARK ALLAN POWHIROAppellantAND NEW ZEALAND POLICERespondentHearing: 30 August 2018Appearances: A M S Williams for the AppellantS J Mallett for the RespondentJudgment: 31 August 2018JUDGMENT OF NATION JIntroduction[1] On 27 June 2018, Judge Gilbert sentenced Mark Powhiro to two years andeight months' imprisonment on charges of participation in an organised criminalgroup, driving while disqualified (third or subsequent), breaching supervision,breaching community work, failing to answer bail, and receiving stolen property.[2] Mr Powhiro appeals that sentence on the basis that it is manifestly excessive.Facts[3] The Rebels gang was formed in Australia in 1969, and in 2011 it establishedpresence in New Zealand. The Rebels Motorcycle Club South City Headquarters weresituated at 80 Vagues Road, Northcote, Christchurch.[4] Mr Powhiro was arrested and charged alongside a number of others. Only thefacts relevant to Mr Powhiro are set out here.[5] At about 1.25 pm on Thursday 14 April 2016, Police executed a search warrantat 80 Vagues Road. Mr Powhiro was at the address at the time, along with others. ThePolice located a black bag under the rear right wheel of a RX7 motor vehicle in thebackyard. Inside the bag were numerous items, including 29.67 grams ofmethamphetamine, $2,912 in cash, a bottle containing 68 Sudomyl 60 mg tablets anda balaclava that was tested for DNA and had a match to Mr Powhiro.[6] Mr Powhiro was a gang prospect at the time. Text messaging suggests he hadsome limited involvement in the sale and supply of methamphetamine and cannabis.This is the basis for the charge of participation in an organised criminal group, to whichMr Powhiro pleaded guilty after a sentencing indication.[7] Overnight, between 7 and 8 December 2016, a trailer was stolen from outsidea property in Sumner, Christchurch. The victim completed his own investigations andwas given details of a woman who had the trailer for sale. This woman gave an addressin Horton Place, Christchurch, for the trailed to be picked up from. The Police locatedthe trailer at this address and spoke to Mr Powhiro who claimed the trailer belongedto him. This led to the charge of receiving stolen property.[8] Mr Powhiro failed to answer bail on 10 January 2017.[9] On 9 November 2016, on a charge of breach of release conditions on a prisonsentence, Mr Powhiro was sentenced to nine months' supervision. By 3 February2017, he had failed three times to report as directed. This led to the charge of breachof supervision.[10] Mr Powhiro had been sentenced to 200 hours' community work on 12December 2016 on a charge of driving while disqualified (third or subsequent). Afurther 80 hours was imposed on 13 January 2017 on charges of possession ofmethamphetamine and amphetamine, and possession of a needle/syringe etc forcannabis. On 16 January 2017, he signed the instruction form directing him to reportfor the community work induction programme on 21 January 2017 and each Saturdayafterwards. He failed to report on 21 January 2017 and had not reported since. Thisled to the charge of breach of community work.[11] Mr Powhiro was disqualified from driving for one year and six months on 29September 2015. He was stopped by Police at about 8.06 pm on Saturday 28 January2017, while driving a Nissan motor vehicle on Avondale Road, Christchurch. This ledto the driving while disqualified (third or subsequent) charge.District Court decision[12] On 13 March 2018, the Judge provided a sentence indication to Mr Powhiroand four co-defendants on the charge of participation in an organised criminal group.Taking all the available facts into account, the Judge set a starting point of two yearsand eight months' imprisonment for Mr Powhiro and three of the other accused. TheJudge declined to consider the personal mitigating and aggravating features of eachoffender at that stage, but noted that he would allow for a full 25 per cent discountshould any of them plead guilty.[13] The Judge incorporated the remarks he made in his sentencing indication withthe eventual sentencing. In his sentencing indication, the Judge referred to the factthat, between 10 March and 14 April 2016, Mr Powhiro, like the other defendants, wasregularly observed by Police wearing Rebels regalia and he associated with otherknown Rebels members, both in Christchurch and in other parts of New Zealand. TheRebels gang had one of its objectives to deal in drugs, notably methamphetamine andcannabis, with the aim of deriving a profit.[14] The Judge said the combined view in submissions for the five defendants hewas then dealing with was that a starting point of around two and a half years wouldbe appropriate. He considered, as a group, all had been involved in activities for thepurpose of dealing in methamphetamine and cannabis. On top of that, firearms werefound at the pad on several occasions, the mix of firearms and drugs being dangerous.He said there were some differences in the parts that all individually played and someof the drugs at the pad were for personal use. He assessed the offending in thesummary of facts at the point of disruption by Police as persistent but "still relativelymodest" and the charge spanned a period of around a month. He referred to a varietyof cases involving other organised criminal groups and drug dealing, to arrive at astarting point on the charge of participating in an organised criminal group of twoyears and eight months' imprisonment – that is 32 months.[15] Mr Powhiro then pleaded guilty to participation in an organised criminal group.He had previously pleaded guilty to the other charges.[16] On 27 June 2018, the Judge sentenced Mr Powhiro on all the charges.1 Aftersetting out the facts of each charge, the Judge noted that Mr Powhiro has also beencharged with further methamphetamine dealing charges, to which he has pleaded notguilty. The Judge noted that Mr Powhiro has four pages of previous convictions,including a methamphetamine charge from late 2016, a significant number of chargesrelating to non-compliance with Court orders and sentences, and five charges ofdriving whilst disqualified within the last three and a half years.[17] The Judge considered the pre-sentence report "a bit of a mixed bag", notingMr Powhiro's skills and employment as a bricklayer but lack of insight into thedifficulties that methamphetamine is getting him into. However, Mr Powhiro hadexpressed a willingness to undertake rehabilitative programmes in prison.[18] The Judge then moved on to considering the other charges. On the drivingwhilst disqualified charge, the Judge adopted a starting point of six months'imprisonment. On the charges of breaching supervision, breaching community work,and failing to answer bail, he added a collective three months. On the charge ofreceiving property, he added another three months. Together with the two years andeight months indicated for the participation in an organised criminal group charge, thatbrought the sentence to three years and eight months' imprisonment.[19] From there, the Judge imposed an uplift of four months to reflect Mr Powhiro'snon-driving-related previous convictions, as well as the fact that he was subject to asentence at the time this offending was committed. From the total of four years, the1 R v Powhiro [2018] NZDC 12934.Judge allowed a totality discount of six months then allowed a further discount of onemonth to reflect the six weeks Mr Powhiro spent on electronically monitored bail.[20] The Judge found no other mitigating factors aside from the guilty pleas. Hegave a discount of nine months for these, which amounts to approximately 22 per cent.This reflected the indicated full credit on the participation in an organised criminalgroup charge, and the fact that the pleas on the other charges came at a later stage ofthe proceeding.[21] As such, the Judge arrived at a final sentence of two years and eight months,structured as two years and two months for participating in an organised criminalgroup and a cumulative six months for driving whilst disqualified. The sentences forthe other charges were to be served concurrently, namely three months for receiving,three months for failing to answer bail, two months for breaching supervision and twomonths for breaching community work. The Judge also cancelled the remaining 279hours' community work and disqualified Mr Powhiro from driving for 12 months.Principles on appeal[22] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied there hasbeen an error in the imposition of the sentence and that a different sentence should beimposed.2 As the Court of Appeal stated in Tutakangahau v R, "an appellate court willnot intervene where the sentence is within the range that can be properly be justifiedby accepted sentencing principles".3 It is only appropriate for this court to interveneand substitute its own views if the sentence being appealed is "manifestly excessive"and not justified by the relevant sentencing principles.42 Criminal Procedure Act 2011, ss 250(2) and 250(3).3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].4 Ripia v R [2011] NZCA 101 at [15].SubmissionsAppellant's submissions[23] Counsel for Mr Powhiro, Mr Williams, submitted that the sentence imposedwas manifestly excessive and that a sentence of between two years and two years andthree months' imprisonment should have been imposed. Mr Williams submitted thatthe Judge erred by:(a) uplifting the starting point to take into account Mr Powhiro's previousoffending; and(b) not giving Mr Powhiro credit for the steps he had taken to address thecauses of his offending since he had been remanded in custody.[24] The Judge uplifted the starting point by four months to reflect Mr Powhiro'sprevious convictions (excluding previous driving offences). Mr Williams noted thatthe Crown did not seek an uplift at sentencing, and he submitted that no uplift shouldhave been imposed. While counsel accepted that Mr Powhiro has a number ofprevious convictions, he submitted that none were so directly relevant as to require anuplift in the starting point imposed. Counsel submitted that the basis upon which theJudge considered an uplift was required is unclear.[25] In particular, counsel noted that Mr Powhiro had no history of drug dealingoffending, and he had a single previous dishonesty offence from 2003 which attracteda nominal sentence. His previous compliance-related offending had resulted inprogressively sterner sentences, with the three-month sentence of imprisonment beingthe most serious sentence imposed, suggesting that Mr Powhiro's history of non-compliance had already been taken into account. In these circumstances, counselsubmitted that the uplift would amount to double-counting. Counsel also noted thatspecific deterrence and any risk of reoffending had already been appropriatelyaddressed by the imposition of a sentence of imprisonment and did not require anuplift.[26] Counsel also submitted that the Judge erred in not giving Mr Powhiro furthercredit. The Judge indicated that there were no other personal mitigating factors otherthan the guilty pleas. He did not reference a letter written by Mr Powhiro indicatinghis desire to make amends and to address the underlying causes of his offending. Theletter was accompanied by reports confirming his positive engagement in a foundationskills course while in custody. The pre-sentence report also indicated Mr Powhiro'swillingness to address his drug use. Counsel submitted that credit in the region of 2-3 months should have been given to recognise Mr Powhiro's motivation to change andthe steps taken in this respect.[27] As a result, counsel submitted that the end sentence reached by the Judge wasmanifestly excessive.Respondent's submissions[28] Counsel for the respondent, Mr Mallett, submitted that an uplift of four monthsto reflect a relatively extensive criminal history did not make the end sentencemanifestly excessive. Offending, including the receiving of the stolen trailer, failureto answer bail and driving while disqualified, occurred when Mr Powhiro was subjectto a sentence of supervision and that had also been a reason for the uplift.[29] Mr Mallett submitted that the pre-sentence report was not particularly positiveso there was limited scope for the Judge to give Mr Powhiro credit for what may havebeen positive steps he had taken while on remand in prison. He submitted Mr Powhirohad been given the benefit of a generous discount for totality. The focus had to be onthe end sentence, which could not be considered manifestly excessive. Anyadjustment that might be made with regard to a potential credit for Mr Powhiro'spersonal progress while in prison would be just tinkering with the sentence.Analysis[30] There was no criticism as to the way the Judge arrived at a starting point forall the offending of three years and eight months. The Judge had then provided for anuplift of four months, but then a discount for totality and a one month discount for sixweeks that Mr Powhiro had been on EM bail. The end sentence came back to 41months before the significant discount for guilty pleas, primarily on the most seriouscharge.[31] I do not consider there was an error in the uplift given it was for both offendingwhile subject to sentence and previous criminal offending other than his previouslicence disqualifications. There had been a history of disregard for Court orders,including breach of bail and breaches of prison release conditions. That previousoffending did make the repetition of similar offending more serious.[32] I also consider it was reasonable for the Judge to take the view that there wereno real personal mitigating features that he could give Mr Powhiro credit for inaddition to the guilty plea.[33] Mr Powhiro had written a letter to the Judge. In that letter, he had said:Your honour, I wouldn't so offend you as to imply that I have remorse andsincerity without it being true. Nonetheless it is with indiscriable [sic] claritythat I see the enormity of my actions and the emotional consequence's for allinvolved including family members.[34] Later he referred to a build-up of stress and personal family problems but said"I can't allow this to justify nor minimise any number of behaviours towards myvictims". The sentiments he expressed were grandiose and in noble terms but did notseem to relate to the specific nature of his offending or the recurrent ways in which hehad breached various Court orders and sentences.[35] The sentiments he expressed were in marked contrast to the statement in thepre-sentence report prepared on 30 April 2018 that Mr Powhiro did not acceptresponsibility for his offending and, as such, did not express any remorse. The reportreferred to him having frequented the Vagues Road address of the Rebels MotorcycleClub "for social purposes and to consume drugs". The report said that he claimed hehad no interest in becoming involved in the criminal activities of the club but he hadto be sentenced on the basis that there had been some such involvement. The probationofficer said "Mr Powhiro reports to have now discontinued his association with theRebels altogether" but, in his letter to the Judge, there was no mention of the fact thathe regretted his previous association with the group or saw his association with it ashaving put him at risk of criminal offending.[36] Mr Powhiro's counsel had provided the Judge with what was a positive reporton the way Mr Powhiro was involved in a programme while on remand with the OpenPolytechnic to better his education. It said he was motivated by wanting to securegood employment and was on his way to achieving his educational goals. For that, hewas to be commended and no doubt such progress will be relevant when he seeksparole. It was not however an expression of remorse for his offending and could notbe seen as mitigating the seriousness of all the offending that he had pleaded guilty to.[37] On an appeal, the focus must be on the end sentence. I have not been persuadedthat there was any error in the imposition of the sentence or that a different sentenceshould be imposed.[38] Mr Powhiro's appeal is dismissed.Solicitors:AMS Williams, Barrister, ChristchurchRaymond Donnelly & Co., Christchurch.