Powhiro v The Queen

[2020] NZHC 1316

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000037

CRI-2020-409-000038 [2020] NZHC 1316

BETWEEN

MARK ALLAN POWHIRO

Appellant

AND

THE QUEEN

Respondent

Hearing:	11 June 2020
Appearances:	A M S Williams and T Scott for Appellant C J Boshier for Respondent
Judgment:	12 June 2020

JUDGMENT OF DUNNINGHAM J

Introduction

[1]    The appellant, Mark Powhiro, pleaded guilty to conspiring to possess methamphetamine for supply, supplying methamphetamine, kidnapping and unlawful possession of a firearm. He was sentenced by Judge Neave on 19 February 2020 to two years for the drug offending, and 19 months for the kidnapping and firearms charge cumulative on a sentence of two years eight months Mr Powhiro was already serving in relation to a separate charge.1

[2]    Mr Powhiro appeals the sentence on the grounds that the Judge made a mathematical error and the Judge failed to give sufficient credit for relevant personal factors in accordance with the Court of Appeal’s decision in Zhang v R.2

1      R v Smith, Ross and Powhiro [2020] NZDC 3140.

2      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

POWHIRO v R [2020] NZHC 1316 [12 June 2020]

Facts

[3]    In September 2017 the police initiated two investigations into the activities of the Tribesman Outlaw Motorcycle Gang, named Operation Volcano and Operation Lett.

Operation Volcano

[4]    As part of Operation Volcano the police intercepted private communications between Mr Smith and  Mr Powhiro.   From 2  October 2017 to 10 October 2017   Mr Powhiro and Mr Smith communicated about sourcing, selling and distributing methamphetamine.

[5]    On 2 October Mr Powhiro and Mr Smith discussed increasing the quantity of methamphetamine they supplied. Mr Smith agreed to supply Mr Powhiro with more methamphetamine and Mr Powhiro suggested in exchange for 21 grams of methamphetamine he could contribute to renovations of the Tribesman’s gang pad. Payment and collection were arranged later that evening.

[6]    On 4 October Mr Smith called Mr Powhiro and they joked about being drug dealers without a supply of methamphetamine. Mr Smith asked Mr Powhiro to try and get some “P”. On 5 October Mr Powhiro told Mr Smith he had paid for four grams of methamphetamine and was waiting for delivery. On 6 October Mr Powhiro talked with  Mr  Smith  about  sourcing  methamphetamine   at   a   smaller   scale.   The two continued to discuss their methamphetamine dealing until 10 October. This resulted in the supply charge.

[7]    On 8 October Mr Powhiro and Mr Smith discussed obtaining methamphetamine, Mr Powhiro stated he could obtain what they needed from a third party but could only get whole rather than half ounces. Mr Smith told Mr Powhiro to get three ounces of methamphetamine. This resulted in the conspiracy charge.

Operation Lett

[8]    A separate tranche of offending occurred on 3 October 2017. Mr Powhiro’s partner invited the victim to 40 Cranford Street, Christchurch. The victim arrived at

around midday and was left to look after a puppy. Whilst engaged with the puppy two unknown vehicles parked on either side of the victim’s vehicle preventing him from leaving.

[9]    When the victim realised what was happening Mr Powhiro grabbed him around the neck. The victim attempted to escape but four or five men from the vehicles assisted Mr Powhiro in blocking the way and directing the victim back into the property. Mr Powhiro punched the victim two or three times and the group then moved the victim to a bench outside the house and removed his personal effects.

[10]   The victim was then held at the address for several hours while the group demanded money and his PIN number. The victim was struck with a metal pole, threatened verbally,3 with a knife, and with a water pistol it was claimed was filled with acid. To prevent the victim from contacting the police Mr Powhiro took the victim’s phone and sent messages from his Facebook account and email indicating he had driven to the address to rape Mr Powhiro’s partner. He also changed the passwords on the victim’s phone to prevent the victim from accessing the messages.

[11]   Mr Powhiro demanded the victim log into his bank account and transfer $2,600 to another associate. When he refused Mr Powhiro punched him in the head. The victim then complied.

[12]   The victim was released at 4.00pm without his EFTPOS card, drivers’ licence or $2,600. The victim suffered cuts and abrasions to his head but did not require hospitalisation.

[13]   On 11 October police executed a search warrant and located a sawn-off shot gun, and five live cartridges inside a black plastic bag underneath the deck at the address.

3      The males told the victim if he did not comply they would put him in a car boot, drive him to a bridge and throw him off.

District Court decision

[14]   The sentencing decision was delayed in anticipation of the decision in Zhang v R.4 While acknowledging the changes made by that decision to sentencing for methamphetamine offending, Judge Neave largely retained his reasoning from the sentencing indication, saying he had anticipated that the Court of Appeal would require Courts to place more focus on assessing the level of criminality as opposed to relying on sentencing bands when giving his indication.5

[15]   The Judge acknowledged that sentencing Mr Powhiro was complicated by the fact the various sets of offences attracted different levels of credit and by the fact he was already serving a sentence of two years and eight months for a separate set of offending.

[16]   For the Operation Volcano offending he adopted a starting point of three years with an uplift of  six  months  to  reflect  the  fact  the  offending  occurred  whilst  Mr Powhiro was on electronically-monitored (EM) bail.

[17]   For the Operation Lett offending Judge Neave adopted a starting point of  two years six months with an uplift of six months for relevant factors.

[18]   Judge Neave then considered a significant level of credit was warranted for Mr Powhiro due to reports showing “a direct line between [his]…history of deprivation and…[his] offending”.6 The judge settled on the following reductions:

(a)a  nine-month  deduction  from  each  set  of  offending  to  reflect   Mr Powhiro’s background and addiction issues, remorse, the return of firearms and willingness to change;7

(b)a 22.5 per cent reduction for the early guilty plea in Operation Volcano;8

4      Zhang v R, above n 2.

5      R v Smith, Ross and Powhiro, above n 1, at [4].

6 At [29].

7 At [31].

8 At [31].

(c)a 15 per cent reduction for the Operation Lett offending in recognition of the guilty pleas;9 and

(d)a further five-month reduction for totality.

[19]    This brought the sentence down to 75 months cumulative: 2 years’ imprisonment for the drug charges; 19 months’ imprisonment for Operation Lett charges; both to be served cumulatively on the two years’ eight months’ imprisonment Mr Powhiro was already serving.

Principles on appeal

[20]   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 that there has been an error in the imposition of the sentence and that a different sentence should be imposed.10 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, “…[an appellate] court ‘will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles’”.11 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.12 The focus of an appellate court must “primarily be on the appropriateness of the end sentence, not the means by which that end sentence has been reached”.13

Appeal out of time

[21]   This appeal is out of time. It should have been filed within 20 days of the original decision, by Thursday 19 March. It was filed on 23 March.14 Mr Powhiro’s

9      The Judge erred in calculating the total sentence at this point as 81 months, the reductions led to a sentence of 80 months.

10     Criminal Procedure Act 2011, ss 250(2) and 250(3).

11     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

12     Ripia v R [2011] NZCA 101 at [15].

13     Skipper v R [2011] NZCA 250 at [28].

14     Criminal Procedure Act 2011, s 273(2).

counsel, Mr Williams, requests leave to appeal out of time citing his involvement in a jury trial, the lack of sentencing notes and that the extension in time sought is minimal.

[22]   I accept the short delay is reasonably explained and no prejudice arises. Leave to appeal out of time is granted.

Submissions

Appellant’s submissions

[23]   Mr Williams submits that while the Judge acknowledged an allowance should be made for Mr Powhiro based on his background, the nine months’ credit provided was not provided in recognition of his addiction.15 Mr Williams relies on Zhang where it was said that “addiction shown to be causative of the offending is a mitigating consideration”.16 He points to Ms Ferguson’s affidavit describing Mr Powhiro relapsing into drug use while on EM bail at her home and says in these circumstances Mr Powhiro should have been accorded an additional 15-20 per cent reduction applied to both sets of offending given the evidence which was provided regarding the severity of his addiction.

[24]   Mr Williams also points out that the Judge erred in calculating the total sentence. Before accounting for totality, the Judge’s identified reductions led to a sentence of 80 rather than 81 months.17 Mr Williams submits that the appropriate end sentence was therefore 66 months’ imprisonment, before taking account of addiction issues.

Respondent’s submissions

[25]   Ms Boshier, for the respondent, submits the sentence is within range, the Judge did consider the addiction issues in relation to Zhang and the mathematical error was corrected via other generous discounts and a double adjustment for totality.

15     This credit was provided in recognition of remorse, background and willingness to change, R v Smith, Ross and Powhiro, above n 2 at [29]-[31].

16     Zhang v R, above n 2, at [9].

17     See footnote 7.

[26]   First, while Ms Boshier accepts, in general, mathematical errors should be resolved, here the Judge specifically considered totality and reduced the sentence by a further five months. This adjustment rectified the one-month error.

[27]   Second, Ms Boshier submits the Judge provided “a significant level of credit for the factors that have been identified in the various reports” and that one of these factors was Mr Powhiro’s addiction.18 Further, this nine-month reduction on the sentence for each set of offences for personal circumstances was generous for the following reasons:

(a)Mr Powhiro said his drive to sell drugs was for both monetary gain and to fund his own drug use, he was not a small-time dealer, was involved at a more significant level and had knowledge of the wider operation. Zhang noted commerciality is likely to be inconsistent with impairment due to addiction, thus it would have been open to the Judge to provide a lesser reduction.19

(b)Mr Powhiro also stated his Tribesman associates were some of the people closest to him, he had no intention of leaving the gang. Given the role the gang associations played in his offending in Operation Rebel and Operation Volcano it would have been open to the Judge to conclude the gang associations were more causative of the offending than the drug use. Non-causative addiction is of little mitigatory relevance.20

[28]   Furthermore, the nine month reduction represented a 25 per cent reduction on the Operation Lett offending and 21.5 per cent reduction on the Operation Volcano offending. This was a significant discount in both cases.

[29]Thus, the sentence imposed cannot be considered manifestly excessive.

18     R v Smith, Ross and Powhiro, above n 1, at [29].

19     Zhang v R, above n 2 at [147].

20 At [147].

Analysis

[30]   For the drug offending the relevant tariff judgment is Zhang v R.21 While the Judge accepted the amount involved in the totality of the defendants’ offending was “approaching 500 grams”, the exact amount of methamphetamine involved is unknown, especially as Mr Powhiro’s involvement was limited  to  a  period  of  eight days within the wider scope of the overall offending.22

[31]   Given the uncertainty surrounding the actual amount of methamphetamine, it is more helpful (as the Judge did) to consider the role that Mr Powhiro played in the operation to set the starting point.23 Mr Powhiro was a conduit, he put those interested in obtaining the drugs in contact with those supplying them which suggests he did not play a limited function under direction. This factor coupled with his awareness of the scale of the operation point towards him having a significant role.24 However, he has made clear that he supplied methamphetamine both to fuel his own drug habit, and for personal financial gain, although this personal gain was not large. This places him between a lesser and significant role.

[32]   Given Mr Powhiro discussed the supply of 67 grams of methamphetamine, and that his role in the offending falls between being a lesser and more significant actor, the starting point adopted for this offending of three years’ imprisonment was appropriate.25

[33]   A clear aggravating factor is that Mr Powhiro continued this drug offending whilst subject to EM bail. The uplift of six months can not be criticised, nor was it.

[34]   An important mitigating factor must be Mr Powhiro’s own addiction as noted by Zhang. However, Mr Powhiro acknowledged that monetary gain also played a role, suggesting an ancillary motivation limiting the extent to which addiction can mitigate

21     Zhang v R, above n 2.

22     R v Smith, Ross, Howard and Powhiro DC Christchurch CRI-2017-009-010812, 20 February 2019 at [4] and [20].

23     Zhang v R, above n 2, at [104].

24 At [19]. Mr Powhiro in his discussions with Mr Smith referred to purchasing 32 grams to on-sell, selling four grams; increasing the supply to an associate from seven to 14 grams; and providing labour and materials for 21 grams, this clearly places him above band one.

25 This is consistent with similar amounts and culpability in other cases R v Huirama [2018] NZHC 864 at [3]; and fits in the middle to lower band two from Zhang.

the  offending.  A  reduction  of  15  per  cent  would  be  generous  to  recognise   Mr Powhiro’s addiction, so the reduction of 21.5 per cent respectively to recognise this and other personal factors could not be considered inappropriate.26 He then received almost full credit for his guilty plea so Judge Neave’s sentence of 2 years’ imprisonment was well within range.

[35]   On the Operation Lett offending the lead charge is kidnapping. The aggravating features of the offence include the premeditation required to set up the attack, the abuse of trust as Mr Powhiro used his partner to lure the victim to the address, the use of threats and actual violence, the presence of a weapon and the length of the detention. These factors readily warrant the starting point of two  years’ and six months which was adopted.27 Aggravating factors personal to the offender include Mr Powhiro’s lack of remorse, the fact Mr Powhiro was on EM bail for separate offending at the time, and the unlawful possession of a firearm. Again, these factors warrant the uplift of six months.28

[36]   I accept there is some evidence that funding Mr Powhiro’s drug addiction contributed to this offending. However, I accept Ms Boshier’s submissions that it was not the only factor driving his offending. His commitment to the gang and his desire for monetary gain were also relevant and perhaps more relevant in respect of the Operation Lett offending. A discount of 25 per cent for Mr Powhiro’s addiction issues and personal history of deprivation was generous. Additionally, the 15 per cent credit for a late guilty plea was well within range.

[37]   Finally, in relation to the mathematical error, the Court of Appeal guidance on the issue provides that if it is clear that the mathematical error resulted in a sentence that is more severe than that which the Judge intended to impose, it must be corrected.29 However, I concur with Ms Boshier that the mathematical error was sufficiently corrected by Judge Neave’s further reduction of five months to reflect the

26     Given in Zhang the maximum reduction in extreme cases is 30 per cent, Zhang v R, above n 2, at [149].

27     Similar cases include Angua v R [2020] NZCA 127; R v Wharton (2003) 20 CRNZ 109 (CA);

Heke v R [2016] NZCA 38; Trainor v R [2015] NZHC 921; Moffatt v R [2015] NZHC 107.

28     R v Smith [2018] NZHC 2118 at [21] and [35] cited in Zhang v R, above n 2, at [212].

29     Ferris-Bromley v R [2017] NZCA 115 at [15].

principle of totality, and did not result in a more severe sentence than intended by the Judge.

Conclusion

[38]   Neither ground advanced satisfies me that the sentence was manifestly excessive. The sentence imposed was well within range for the extent of this offending.

[39]The appeal is dismissed.

Solicitors:

A M S Williams, Barrister, Christchurch Raymond Donnelly & Co., Christchurch