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…

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 The Queen

Details

AGLC: Powhiro v The Queen [2020] NZHC 1316
Case: [2020] NZHC 1316
Decision Date: 12 June 2020

CaseChat Overview and Summary

The appellant, Mark Powhiro, pleaded guilty to multiple charges including conspiracy to possess methamphetamine for supply, supplying methamphetamine, kidnapping, and unlawful possession of a firearm. He appealed his sentence, arguing that the trial judge made a mathematical error and failed to give sufficient credit for relevant personal factors, particularly his addiction issues. Powhiro's appeal was out of time, but the court granted leave to appeal due to the short delay and lack of prejudice.

The court considered whether the sentence was manifestly excessive and whether the trial judge made a mathematical error or failed to adequately credit Powhiro's personal circumstances. The trial judge had adopted a starting point of three years for the drug offences and two years six months for the kidnapping offence. The judge provided a nine-month reduction for Powhiro's background and addiction issues, a 22.5 per cent reduction for an early guilty plea, and a 15 per cent reduction for the Operation Lett offending. This brought the total sentence to 75 months, cumulative with a sentence Powhiro was already serving.

The court found that while there was a mathematical error in calculating the total sentence, it was corrected by the judge's further reduction of five months. The nine-month reduction for Powhiro's addiction and personal circumstances was generous given his significant role in the drug operation and his gang associations. The court concluded that the sentence was not manifestly excessive and dismissed the appeal.

Orders