Powhiro v Police - [2018] NZHC 2293

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-000066 CRI-2018-409-000067

CRI-2018-409-000068 [2018] NZHC 2293

BETWEEN
MARK ALLAN POWHIRO

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 30 August 2018

Appearances:

A M S Williams for the Appellant S J Mallett for the Respondent

Judgment:

31 August 2018

JUDGMENT OF NATION J

Introduction

[1] On 27 June 2018, Judge Gilbert sentenced Mark Powhiro to two years and eight months’ imprisonment on charges of participation in an organised criminal group, 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 established presence in New Zealand. The Rebels Motorcycle Club South City Headquarters were situated at 80 Vagues Road, Northcote, Christchurch.

POWHIRO v POLICE [2018] NZHC 2293 [31 August 2018]

[4] Mr Powhiro was arrested and charged alongside a number of others. Only the facts relevant to Mr Powhiro are set out here.

[5] At about 1.25 pm on Thursday 14 April 2016, Police executed a search warrant at 80 Vagues Road. Mr Powhiro was at the address at the time, along with others. The Police located a black bag under the rear right wheel of a RX7 motor vehicle in the backyard. Inside the bag were numerous items, including 29.67 grams of methamphetamine, $2,912 in cash, a bottle containing 68 Sudomyl 60 mg tablets and a 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 had some 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 which Mr Powhiro pleaded guilty after a sentencing indication.

[7] Overnight, between 7 and 8 December 2016, a trailer was stolen from outside a property in Sumner, Christchurch. The victim completed his own investigations and was given details of a woman who had the trailer for sale. This woman gave an address in Horton Place, Christchurch, for the trailed to be picked up from. The Police located the trailer at this address and spoke to Mr Powhiro who claimed the trailer belonged to 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 prison sentence, Mr Powhiro was sentenced to nine months’ supervision. By 3 February 2017, he had failed three times to report as directed. This led to the charge of breach of supervision.

[10] Mr Powhiro had been sentenced to 200 hours’ community work on 12 December 2016 on a charge of driving while disqualified (third or subsequent). A further 80 hours was imposed on 13 January 2017 on…

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 Powhiro v Police

Details

AGLC: Powhiro v Police [2018] NZHC 2293
Case: [2018] NZHC 2293
Decision Date: 31 August 2018

CaseChat Overview and Summary

The case of Powhiro v Police was heard in the High Court of New Zealand, Christchurch Registry. Mark Powhiro appealed his sentence of two years and eight months’ imprisonment on multiple charges including participation in an organised criminal group, driving while disqualified, breaching supervision, breaching community work, failing to answer bail, and receiving stolen property. The legal issues before the court were whether the sentence imposed was manifestly excessive and whether the trial judge erred in certain aspects of the sentencing process.

The court considered the appellant’s arguments that the sentence was manifestly excessive due to the trial judge’s imposition of an uplift in the starting point for previous convictions and failure to give credit for steps taken to address the causes of his offending while on remand. The court found that the uplift was reasonable given the appellant’s history of disregard for court orders and sentences. The court also found that the appellant's letter expressing remorse and desire to address the causes of his offending did not sufficiently mitigate the seriousness of his offending given his lack of acceptance of responsibility as noted in the pre-sentence report. The court held that there was no error in the imposition of the sentence and dismissed the appeal.

In conclusion, the court upheld the sentence imposed by the District Court and found no grounds to substitute its own sentence. The appeal was dismissed, and the original sentence stands as imposed by the trial judge.

Orders