Porter v Police - [2024] NZHC 752

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Porter v Police

Details

AGLC: Porter v Police [2024] NZHC 752
Case: [2024] NZHC 752
Decision Date: 10 April 2024

CaseChat Overview and Summary

Shaun Roy Porter, the appellant, appeals his sentence of 26 months' imprisonment, imposed by the New Plymouth District Court, arguing that it is manifestly excessive and should be reduced to 24 months. The appeal was heard in the High Court of New Zealand, New Plymouth Registry, with T Ahana J delivering the judgment on 10 April 2024. The primary legal issues in this case were whether the starting point for the sentence was manifestly excessive, if sufficient discounts were given for mitigating factors, and if the judge erred in failing to apply the totality principle.

The court found that the starting point of 30 months' imprisonment for the firearms and protection order breach charges was not manifestly excessive, considering the number and nature of the firearms involved and the breach of the protection order. The further uplifts applied for methamphetamine offending and re-sentencing were also deemed within range. The court concluded that the overall starting point of 40 months' imprisonment was not manifestly excessive as it adequately accounted for the totality of the charges. The court also found that the discount of 10% for mitigating factors, including Porter's addiction to methamphetamine, was within range and consistent with similar cases.

Based on the court's reasoning, the appeal was dismissed, and the original sentence of 26 months' imprisonment was upheld.

Orders