Masina v The the King

[2022] NZHC 3280

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-412

CRI-2022-404-413 [2022] NZHC 3280

BETWEEN

POE MASINA

Appellant

AND

THE KING

Respondent

Hearing:

7 December 2022

Appearances:

S Tait for appellant

R J McDonald for respondent

Date of judgment:

7 December 2022

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:

S Tait, Barrister, Auckland Kayes Fletcher Walker, Manukau

MASINA v R [2022] NZHC 3280 [7 December 2022]

[1]    Poe Masina appeals against Judge S Moala’s 19 October 2022 decision in the District Court at Manukau,1 sentencing him to two years and four months’ imprisonment on his guilty pleas to charges of aggravated burglary,2 wilful damage,3 possession of a firearm (representative),4 possession of synthetic cannabis for sale or supply5 and possession of methamphetamine.6

Background

[2]    The charges arose from Mr Masina’s participation in three events. In the late evening of 28 December 2018, he and others entered the victim’s home in Auckland’s Ōtāhuhu armed with a steel scaffolding pole, with which he threatened the victim and smashed the windows of her car parked outside, in apparent retaliation for a burglary earlier of Mr Masina’s house at which the victim’s car was said to have been involved. His unlicensed possession of a rifle and shotgun was identified in the wake of his brother’s removal and return of the shotgun for and from use in a March 2019 Māngere murder. The drugs were found in his car on an August 2021 traffic stop, in a number of small snap-lock bags, together with nearly $12,000 in cash.

Judgment under appeal

[3]    Judge Moala observed Mr Masina’s sentencing had been adjourned “a number of times” to enable him to “do [the] work” necessary to get into “home detention range”.7 Her Honour took a starting point of three and a half years’ imprisonment on the aggravated burglary and wilful damage charges, uplifted by four months each respectively on the firearms and  drugs  charges,  to  arrive  at  a  starting  point  of 50 months’ imprisonment.8 Discounts totalling 25 per cent for his guilty plea (five per cent), background (10 per cent) and rehabilitation (10 per cent) reduced that to

1      R v Masina [2022] NZDC 20692.

2      Crimes Act 1961, s 232(1)(a). Maximum penalty: 14 years’ imprisonment.

3      Summary Offences Act 1981, s 11(1)(a). Maximum penalty: three months’ imprisonment or

$2,000 fine.

4      Arms Act 1983, s 45(1)(a). Maximum penalty: four years’ imprisonment or a fine of $5,000.

5      Psychoactive Substances Act 2013, s 70(1)(c) and (3)(a). Maximum penalty: two years’ imprisonment.

6      Misuse of Drugs Act 1975, s 7(1)(a) and 2(a). Maximum penalty: six months’ imprisonment or a

$1,000 fine.

7      R v Masina, above n 1, at [13].

8      At [14]–[15].

38 months’ imprisonment.9 The Judge applied further reductions of six months for Mr Masina’s time on bail,10 and four months for his reparations (including community work), to reach an end sentence of 28 months’ imprisonment.11 She observed his drugs offending while working toward a home detention sentence…