Powhiro v Police
[2018] NZHC 2293
•31 August 2018
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 charges of possession of methamphetamine and amphetamine, and possession of a needle/syringe etc for cannabis. On 16 January 2017, he signed the instruction form directing him to report
for the community work induction programme on 21 January 2017 and each Saturday afterwards. He failed to report on 21 January 2017 and had not reported since. This led to the charge of breach of community work.
[11] Mr Powhiro was disqualified from driving for one year and six months on 29 September 2015. He was stopped by Police at about 8.06 pm on Saturday 28 January 2017, while driving a Nissan motor vehicle on Avondale Road, Christchurch. This led to the driving while disqualified (third or subsequent) charge.
District Court decision
[12] On 13 March 2018, the Judge provided a sentence indication to Mr Powhiro and 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 years and eight months’ imprisonment for Mr Powhiro and three of the other accused. The Judge declined to consider the personal mitigating and aggravating features of each offender at that stage, but noted that he would allow for a full 25 per cent discount should any of them plead guilty.
[13] The Judge incorporated the remarks he made in his sentencing indication with the eventual sentencing. In his sentencing indication, the Judge referred to the fact that, between 10 March and 14 April 2016, Mr Powhiro, like the other defendants, was regularly observed by Police wearing Rebels regalia and he associated with other known Rebels members, both in Christchurch and in other parts of New Zealand. The Rebels gang had one of its objectives to deal in drugs, notably methamphetamine and cannabis, with the aim of deriving a profit.
[14] The Judge said the combined view in submissions for the five defendants he was then dealing with was that a starting point of around two and a half years would be appropriate. He considered, as a group, all had been involved in activities for the purpose of dealing in methamphetamine and cannabis. On top of that, firearms were found 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 some of the drugs at the pad were for personal use. He assessed the offending in the summary of facts at the point of disruption by Police as persistent but “still relatively
modest” and the charge spanned a period of around a month. He referred to a variety of cases involving other organised criminal groups and drug dealing, to arrive at a starting point on the charge of participating in an organised criminal group of two years 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 After setting out the facts of each charge, the Judge noted that Mr Powhiro has also been charged with further methamphetamine dealing charges, to which he has pleaded not guilty. The Judge noted that Mr Powhiro has four pages of previous convictions, including a methamphetamine charge from late 2016, a significant number of charges relating to non-compliance with Court orders and sentences, and five charges of driving whilst disqualified within the last three and a half years.
[17] The Judge considered the pre-sentence report “a bit of a mixed bag”, noting Mr Powhiro’s skills and employment as a bricklayer but lack of insight into the difficulties that methamphetamine is getting him into. However, Mr Powhiro had expressed a willingness to undertake rehabilitative programmes in prison.
[18] The Judge then moved on to considering the other charges. On the driving whilst 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 of receiving property, he added another three months. Together with the two years and eight months indicated for the participation in an organised criminal group charge, that brought the sentence to three years and eight months’ imprisonment.
[19] From there, the Judge imposed an uplift of four months to reflect Mr Powhiro’s non-driving-related previous convictions, as well as the fact that he was subject to a sentence at the time this offending was committed. From the total of four years, the
1 R v Powhiro [2018] NZDC 12934.
Judge allowed a totality discount of six months then allowed a further discount of one month 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. He gave 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 criminal group charge, and the fact that the pleas on the other charges came at a later stage of the 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 criminal group and a cumulative six months for driving whilst disqualified. The sentences for the 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 two months for breaching community work. The Judge also cancelled the remaining 279 hours’ 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 Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 As the Court of Appeal stated in Tutakangahau v R, “an appellate court will not intervene where the sentence is within the range that can be properly be justified by accepted sentencing principles”.3 It is only appropriate for this court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.4
2 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].
Submissions
Appellant’s submissions
[23] Counsel for Mr Powhiro, Mr Williams, submitted that the sentence imposed was manifestly excessive and that a sentence of between two years and two years and three months’ imprisonment should have been imposed. Mr Williams submitted that the Judge erred by:
(a) uplifting the starting point to take into account Mr Powhiro’s previous offending; and
(b) not giving Mr Powhiro credit for the steps he had taken to address the causes of his offending since he had been remanded in custody.
[24] The Judge uplifted the starting point by four months to reflect Mr Powhiro’s previous convictions (excluding previous driving offences). Mr Williams noted that the Crown did not seek an uplift at sentencing, and he submitted that no uplift should have been imposed. While counsel accepted that Mr Powhiro has a number of previous convictions, he submitted that none were so directly relevant as to require an uplift in the starting point imposed. Counsel submitted that the basis upon which the Judge considered an uplift was required is unclear.
[25] In particular, counsel noted that Mr Powhiro had no history of drug dealing offending, and he had a single previous dishonesty offence from 2003 which attracted a nominal sentence. His previous compliance-related offending had resulted in progressively sterner sentences, with the three-month sentence of imprisonment being the most serious sentence imposed, suggesting that Mr Powhiro’s history of non- compliance had already been taken into account. In these circumstances, counsel submitted that the uplift would amount to double-counting. Counsel also noted that specific deterrence and any risk of reoffending had already been appropriately addressed by the imposition of a sentence of imprisonment and did not require an uplift.
[26] Counsel also submitted that the Judge erred in not giving Mr Powhiro further credit. The Judge indicated that there were no other personal mitigating factors other
than the guilty pleas. He did not reference a letter written by Mr Powhiro indicating his desire to make amends and to address the underlying causes of his offending. The letter was accompanied by reports confirming his positive engagement in a foundation skills course while in custody. The pre-sentence report also indicated Mr Powhiro’s willingness 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 and the steps taken in this respect.
[27] As a result, counsel submitted that the end sentence reached by the Judge was manifestly excessive.
Respondent’s submissions
[28] Counsel for the respondent, Mr Mallett, submitted that an uplift of four months to reflect a relatively extensive criminal history did not make the end sentence manifestly excessive. Offending, including the receiving of the stolen trailer, failure to answer bail and driving while disqualified, occurred when Mr Powhiro was subject to 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 positive so there was limited scope for the Judge to give Mr Powhiro credit for what may have been positive steps he had taken while on remand in prison. He submitted Mr Powhiro had been given the benefit of a generous discount for totality. The focus had to be on the end sentence, which could not be considered manifestly excessive. Any adjustment that might be made with regard to a potential credit for Mr Powhiro’s personal 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 for all the offending of three years and eight months. The Judge had then provided for an uplift of four months, but then a discount for totality and a one month discount for six weeks that Mr Powhiro had been on EM bail. The end sentence came back to 41 months before the significant discount for guilty pleas, primarily on the most serious charge.
[31] I do not consider there was an error in the uplift given it was for both offending while subject to sentence and previous criminal offending other than his previous licence disqualifications. There had been a history of disregard for Court orders, including breach of bail and breaches of prison release conditions. That previous offending 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 were no real personal mitigating features that he could give Mr Powhiro credit for in addition 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 and sincerity without it being true. Nonetheless it is with indiscriable [sic] clarity that I see the enormity of my actions and the emotional consequence’s for all involved 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 my victims”. The sentiments he expressed were grandiose and in noble terms but did not seem to relate to the specific nature of his offending or the recurrent ways in which he had breached various Court orders and sentences.
[35] The sentiments he expressed were in marked contrast to the statement in the pre-sentence report prepared on 30 April 2018 that Mr Powhiro did not accept responsibility for his offending and, as such, did not express any remorse. The report referred to him having frequented the Vagues Road address of the Rebels Motorcycle Club “for social purposes and to consume drugs”. The report said that he claimed he had no interest in becoming involved in the criminal activities of the club but he had to be sentenced on the basis that there had been some such involvement. The probation officer said “Mr Powhiro reports to have now discontinued his association with the Rebels altogether” but, in his letter to the Judge, there was no mention of the fact that he regretted his previous association with the group or saw his association with it as having put him at risk of criminal offending.
[36] Mr Powhiro’s counsel had provided the Judge with what was a positive report on the way Mr Powhiro was involved in a programme while on remand with the Open Polytechnic to better his education. It said he was motivated by wanting to secure good employment and was on his way to achieving his educational goals. For that, he was to be commended and no doubt such progress will be relevant when he seeks parole. It was not however an expression of remorse for his offending and could not be 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 persuaded that there was any error in the imposition of the sentence or that a different sentence should be imposed.
[38]Mr Powhiro’s appeal is dismissed.
Solicitors:
AMS Williams, Barrister, Christchurch Raymond Donnelly & Co., Christchurch.