Porter v Police
[2024] NZHC 752
•10 April 2024
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI 2024-443-000008
CRI 2024-443-000009
[2024] NZHC 752
BETWEEN SHAUN ROY PORTER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 9 April 2024 (via VMR) Appearances:
P M Keegan for the Appellant R L Hicklin for the Respondent
Judgment:
10 April 2024
JUDGMENT OF TAHANA J
(Sentence appeal)
This judgment was delivered by me on 10 April 2024 at 2.30pm
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Marsland Chambers, New Plymouth Crown Solicitor, New Plymouth
PORTER v NEW ZEALAND POLICE (Sentence appeal) [2024] NZHC 752 [10 April 2024]
Introduction
[1] Mr Porter was sentenced to 26 months’ imprisonment in the New Plymouth District Court on 13 February 20241 on the following charges:
(a)Police charges: 2 September 2023:
(i)Unlawful possession of a firearm (x3).2
(ii)Unlawful possession of ammunition.3
(iii)Breach of protection order (possession of weapons) (x2).4
(iv)Possession of methamphetamine.5
(b)Police charges: 30 June 2023 and 3 August 2023:
(i)Driving while disqualified (3rd or subsequent) (x2).6
(c)Breach of sentence charges: June to August 2023:
(i)Breach of conditions of community detention (x5).7
(d)Review charges: 23 October 2022 and 13 to 17 January 2023:
(i)Breach of protection order (unauthorised contact) (x4).8
1 Police v Porter [2024] NZDC 3211.
2 Arms Act 1983, s 45(1)(b). Maximum penalty of four years’ imprisonment and/or $5,000 fine.
3 Section 22B. Maximum penalty of $10,000 fine.
4 Family Violence Act 2018, ss 98(1)(a) and 112(1)(b). Maximum penalty of three years’ imprisonment.
5 Misuse of Drugs Act 1975, s 7(1)(a) and (2). Maximum penalty of six months’ imprisonment and/or $1,000 fine.
6 Land Transport Act 1998, s 32(1)(a) and (4). Maximum penalty of two years’ imprisonment or
$6,000 fine.
7 Sentencing Act 2002, s 69G(a). Maximum penalty of six months’ imprisonment or $1,500 fine.
8 Family Violence Act, ss 90(b) and 112(1)(a). Maximum penalty of three years’ imprisonment.
(ii)Driving while disqualified.9
(iii)Possession of methamphetamine.10
(iv)Possession of medicine in breach of Medicine Act 1981.11
[2] Mr Porter appeals his sentence on the basis that it is manifestly excessive and should be substituted for a sentence of 24 months’ imprisonment.
[3]The issues on appeal are:
(a)whether the starting point was manifestly excessive;
(b)whether sufficient discounts were given for mitigating factors set out in the s 27 report and by reason of Mr Porter’s addiction to methamphetamine; and
(c)whether the judge erred in failing to apply the totality principle.
Offending
Review charges — October 2022 and January 2023
[4] Mr Porter breached a protection order on 23 October 2022 when the victim called the police saying that he had tried to leave with his child. Mr Porter said it was a misunderstanding.
[5]On 13 and 16 January 2023, Mr Porter arrived at the victim’s address uninvited.
[6] On 17 January 2023, while Mr Porter was being searched a container of pills and a zip-lock bag containing methamphetamine were located.
9 Land Transport Act, s 32(1) and (3). Maximum penalty of three months’ imprisonment or $4,500 fine, six months’ disqualification.
10 Misuse of Drugs Act, s 7(1)(a) and (2). Maximum penalty of six months’ imprisonment and/or
$1,000 fine.
11 Medicines Act 1981, s 46 and 78. Maximum penalty of three months’ imprisonment or $500 fine.
Breach of community detention
[7] While serving a six-month community detention sentence for this offending, Mr Porter accumulated another 14 charges, including five for breach of community detention.
Driving while disqualified
[8] From 10 June to 2 September 2023, Mr Porter was caught driving while disqualified twice.
2 September 2023 charges
[9] Mr Porter failed to return a rental car. The car was flagged as stolen. It was located outside a store in New Plymouth and Mr Porter was located in the store. When told he was under arrest, he ran off, but was caught and handcuffed. When he rolled to his side there were shotgun cartridges beneath him.
[10] At the police station, ammunition rounds and firearms were found in Mr Porter’s satchel together with 3.3 grams of methamphetamine. Shotgun shells and a shotgun were also found when Mr Porter’s vehicle was searched, together with half a gram of methamphetamine. Two more firearms were located at Mr Porter’s home.
Decision under appeal
[11] The Judge set a starting point of 30 months’ imprisonment for the firearms charges and the protection order breaches.12
[12] The Judge applied an uplift of four months’ imprisonment for the methamphetamine offending and a further six months for the re-sentencing on the review charges and Mr Porter’s previous history.13 That resulted in an overall starting point of 40 months’ imprisonment.
12 Police v Porter above n 1, at [23].
13 At [24].
[13] The Judge then applied a 25 per cent (10 months) discount for guilty plea and a 10 per cent (four months) discount for mitigating factors resulting in an end sentence of 26 months’ imprisonment.
Approach on appeal
[14] The appeal is governed by s 250 of the Criminal Procedure Act 2011, which provides that the Court must allow the appeal if satisfied there is an error in the sentence and a different sentence should be imposed.
[15] The Court of Appeal summarises the relevant principles that apply to an appeal in Tutakangahau v R as follows:14
(a)a successful appeal requires identification of an error and the appellate court to be satisfied a different sentence should be imposed;15
(b)the appellate court does not start afresh nor simply substitute its own opinion for that of the sentencing judge — error must be shown, “whether intrinsically, or as a result of additional material submitted on appeal”;16
(c)if there is a material error, the appellant court will form its own view of the appropriate sentence;17
(d)although not referred to in s 250(2), whether a sentence is “manifestly excessive” provides a helpful means of examining the significance of the error to decide whether a different sentence should be imposed;18 and
(e)the focus is on whether the end sentence was within range, not the process by which that sentence was reached.19
14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
15 At [27].
16 At [30].
17 At [30].
18 At [32]-[33] and [35].
19 At [36] and [40].
Analysis
Was the starting point manifestly excessive?
[16] Mr Keegan for Mr Porter submits that the starting point for the firearms, ammunition and breach charges was too high. He says that the shotgun found in the car was unusable and that the possession of the firearms was not connected in any way to the person to whom the protection order related.
[17] The Crown refers to a number of cases20 which indicate starting points ranging from 20 to 30 months’ imprisonment for unlawful possession of a firearm. In Joyce v Police, the Court considered that a starting point of 30 months’ imprisonment “would have been comfortably within range.”21 The police in that case had located a pump- action shotgun in the centre console of the defendant’s vehicle. The search revealed live shotgun rounds, spent rounds and several live bullets.
[18] Here, the firearms charges relate to three different firearms. While the firearm located in Mr Porter’s vehicle had no grip and was unusable, two other firearms were also located. The charges relate to unlawful possession of three firearms and ammunition. Further the 30 months’ imprisonment starting point also included the offending relating to breach of the protection order. The protection order prohibited possession of firearms. While Mr Porter may not have used those firearms against the complainant, the fact remains that possession of those firearms breached the terms of the protection order and increased potential risks to the safety of others.
[19] I accept the Crown’s submission that the starting point of 30 months’ imprisonment is within range in circumstances where three firearms were located and where the starting point also includes Mr Porter’s breaches of the protection order.
[20] Turning to the uplifts resulting in an overall starting point of 40 months’ imprisonment, Mr Keegan submits that this is also too high and some adjustment ought to have been made for the totality of the offending.
20 McMillan v Police [2019] NZHC 3323, Campbell v R [2022] NZCA 579; and Joyce v Police
[2022] NZHC 3277.
21 Joyce v Police at [16].
[21] The Judge applied an uplift of four months for the methamphetamine offending and six months for the re-sentencing of the review charges.
[22] I accept the Crown’s submissions that the further uplifts were not manifestly excessive. In terms of the re-sentence, Mr Porter had served approximately three months of his community detention sentence and therefore had a further three months remaining. Mr Porter also has 49 previous convictions between 2008 and 2022. Those previous convictions include possession of methamphetamine, possession of firearms and breach of release conditions which are directly relevant to the offending. I therefore do not consider that the uplift for the re-sentence and previous convictions was manifestly excessive.
[23] The further four-month uplift was applied for the methamphetamine offending and no cases have been advanced to support this uplift being manifestly excessive.
[24] In these circumstances, I am not satisfied that the overall starting point of 40 months’ imprisonment was manifestly excessive.
Totality
[25] Mr Keegan then argues that the Judge does not appear to have made any adjustment for totality. While the Judge does not expressly refer to totality, when assessing the starting points adopted by the Judge, it is clear that totality was factored in as when viewed overall, it cannot be said that the overall starting point of 40 months’ imprisonment was manifestly excessive given the number and nature of the charges.
Did the Judge err in not applying a greater discount for mitigating factors?
[26] Mr Keegan submits that a four-month (ten per cent) discount was insufficient to recognise the matters contained in the s 27 report. Mr Keegan says that there is a clear nexus between Mr Porter’s background and his offending.
[27] Mr Keegan also submits that Mr Porter’s history of addiction to methamphetamine contributed to his offending and that his culpability is lessened.
[28] I am satisfied that a discount of ten percent was within range and consistent with the cases referred to by the Crown.22 A ten per cent discount was applied for background factors including exposure to family violence and addiction to methamphetamine in Swinburne v Police.23 The discount is consistent with that case and within range.
Result
[29]For the reasons set out above, the appeal is dismissed.
Tahana J
22 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509; and Swinburne v Police [2024] NZHC 619.
23 Swinburne v Police at [41].
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