R v Brown-Martin
[2022] NZHC 2805
•27 October 2022
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2020-088-3220
[2022] NZHC 2805
THE KING v
CAYNE BROWN-MARTIN BILLY-JOE IHIPARA WITEHIRA
Hearing: 27 October 2022 Appearances:
A Tupuola for the Crown
D Blaikie for Defendant Brown-Martin W McKean for Defendant Witehira
Judgment:
27 October 2022
(REDACTED AND ANONYMISED) SENTENCING NOTES OF GORDON J
Solicitors/Counsel:
Crown Solicitor, Whangarei D Blaikie, Kaikohe
WRMK Lawyers, Whangarei
R v BROWN-MARTIN [2022] NZHC 2805 [27 October 2022]
Introduction
[1] Cayne Brown-Martin, you appear before me for sentence having pleaded guilty to a charge arising out of your demand for payment from the victim and other related charges including firearms charges. Billy-Joe Witehira, you are also for sentence. You have pleaded guilty to firearms charges.
The offending
[2] In entering your guilty pleas, you both accepted the contents of the summary of facts.
[3] The two of you were partners at the time. The victim was an acquaintance of yours. In early November 2020, he had left his welding equipment at the address of Corey O’Connell after a disagreement between the two of them. On 29 November 2020, the victim drove to the Paihia address where the two of you were staying. You both got into his vehicle and took possession of a homemade .22 pistol. The three of you then drove to Mr O’Connell’s address.
[4] Mr Brown-Martin, you and the victim went into a shipping container on Mr O’Connell’s property. Ms Witehira, you stayed in the car. The victim was sat down in a chair and threats were made. Mr O’Connell punched the victim in the head several times. Mr O’Connell was convicted and sentenced earlier this year for his part in this offending.1 There is a dispute as to the circumstances and explanations for the assault but it is accepted that the altercation revolved around criminal activities.
[5] At about 8.30 pm, the two of you drove the victim in his car from Mr O’Connell’s address back to where you were staying. On the drive, you, Mr Brown-Martin, demanded payment from the victim. These demands were accompanied by threats of violence. Mr Brown-Martin, you say that the victim had agreed to pay you the sum of $2,500 in return for your help in recovering his engineering equipment. You say there was an argument over the payment of this fee. However, those matters are not recorded in the agreed summary of facts. In any event,
1 R v O’Connell [2022] NZHC 1256.
you accept you demanded payment in a threatening and overbearing manner. At one point, the victim jumped from the moving car and received minor injuries from his fall. The demands continued and the victim agreed to pay a fee. The three of you returned to your motel, consumed methamphetamine and things seemed to calm down.
[6] As part of the demands, Mr Brown-Martin, you arranged for the victim’s vehicle to be sold to an associate for two grams of methamphetamine and $1,000. The vehicle was later recovered by Police.
[7] Sometime during the early hours of 30 November 2020, Ms Witehira, you discharged the .22 calibre modified handgun at a road sign in a rural area near Opua.
[8] The following morning, Mr Brown-Martin, you took the victim to the ASB in Paihia. Ms Witehira, you accompanied them in a separate vehicle. Mr Brown-Martin, you had the intention that the victim would fulfil your demands for cash by making a significant withdrawal. Whilst at the bank counter, the victim was able to write a message on the bank teller’s business card asking for help.
[9] As a result, the Police were summoned. Ms Witehira, you were detained and your vehicle searched. Located in the boot of the vehicle was a .22 calibre modified pistol, .22 rounds and a pump action shot gun with five live cartridges.
[10] Mr Brown-Martin, you had driven away but were later observed travelling west on State Highway 1 in Moerewa at high speeds, weaving in and out of traffic. You were travelling at an estimated speed of about 120 km/h in an 80 km/h zone. When taking evasive action to avoid a head-on collision with an oncoming vehicle travelling east, you lost control of your vehicle and crashed through a fence into a tree at the AFFCO meat works in Moerewa.
[11] Your vehicle was severely damaged and you sustained serious injuries including a fractured pelvis and broken femur. You were airlifted to Whangārei Hospital where you underwent surgery. While there, a blood sample was taken from you and analysed. Upon analysis, methamphetamine, fentanyl and ketamine were
found to be in your system. The fentanyl and ketamine had been administered to you by medical staff at the scene of the crash.
[12]Mr Brown-Martin, you have pleaded guilty to:
(a)unlawful possession of a firearm;2
(b)unlawful possession of a pistol;3
(c)demanding with menaces;4 and
(d)dangerous driving under the influence.5
[13] You entered all your guilty pleas on 23 March 2021, except in relation to the demanding with menaces charge, for which you entered your guilty plea on 28 June 2022.
[14]Ms Witehira, you have pleaded guilty to:
(a)unlawful possession of a firearm;6
(b)unlawful possession of a pistol;7 and
(c)unlawful discharge of a pistol.8
[15]A more serious charge was withdrawn by the Crown.
2 Arms Act 1983, s 45(1): maximum penalty being 4 years’ imprisonment and $5,000 fine.
3 Arms Act 1983, s 50(1)(a): maximum penalty being 3 years’ imprisonment and $4,000 fine.
4 Crimes Act 1961, s 239(2): maximum penalty being 7 years’ imprisonment.
5 Land Transport Act 1998, s 58(1)(b): maximum penalty being 3 months’ imprisonment or $4,500 fine, and mandatory disqualification from obtaining or holding a driver licence for 6 months or more.
6 Arms Act 1983, s 45(1): maximum penalty being 4 years’ imprisonment and $5,000 fine.
7 Arms Act 1983, s 50(1)(a): maximum penalty being 3 years’ imprisonment and $4,000 fine.
8 Arms Act 1983, s 49: maximum penalty being 3 months’ imprisonment and $1,000 fine.
Approach to sentencing
[16] Sentencing is a two-stage process.9 First, I must determine a starting point for each of you. In doing so, I will take into account the aggravating and mitigating features of your offending. Then, I will consider factors personal to each of you that may operate so as to adjust the starting point. This will include your personal backgrounds, your conviction histories, your guilty pleas and the information in the Provision of Advice (PAC) reports.
[17] There are no guideline judgments for the charges to which you have pleaded guilty. However, sentencing will be guided by comparable cases.
[18] In sentencing you, I must have regard to the purposes of sentencing set out in s 7 of the Sentencing Act 2002. In this case, the relevant purposes are accountability, denunciation, deterrence, protection of the community and rehabilitation.
Submissions
[19] Mr Brown-Martin, Ms Tupuola for the Crown, submits that two years to two years six months’ imprisonment is an appropriate starting point for your demanding with menaces charge. This is based on several aggravating factors of the offending. Ms Tupuola says it was premeditated; you made the demands while inside a moving car knowing the victim had just suffered a violent assault; it got to the point where he tried to escape by jumping out of the moving vehicle; and you and Ms Witehira outnumbered the victim and stayed with him throughout the offending so he could not leave.
[20] The Crown then suggests an uplift of twelve months’ imprisonment for your remaining charges.
[21] For your personal factors, Ms Tupuola submits there should be an uplift of three months’ imprisonment for your relevant prior convictions and a discount of no more than 20 per cent for your guilty plea.
9 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
[22] Your counsel, Mr Blaikie, agrees that the demanding with menaces charge should be the lead sentence but submits that the two to two and a half years’ imprisonment starting point is too high and that a starting point of 18 months should be adopted. Mr Blaikie accepts that the uplift for the remaining charges should be in the order of one year and an uplift for your previous offending should be two to three months. He submits that a 25 per cent discount should be given for your guilty plea as it was entered as soon as the demanding with menaces charge was amended.
[23] He also relies on a report prepared under s 27 of the Sentencing Act in October 2020. Mr Blaikie does not suggest a particular discount but submits there should be a reasonable discount having regard to the contents of that report.
[24] Ms Witehira, the Crown says that a global starting point for all your charges should be 12 months’ imprisonment. Ms Tupuola submits a discount of no more than 20 per cent for your guilty plea is appropriate and that a community-based sentence could be an appropriate outcome.
[25] Your counsel, Mr McKean does not strongly disagree with the starting point of 12 months except to say you were not the principal in control of the firearms. He submits there are three significant mitigating personal features: your personal background, the time you have spent on EM bail and your guilty plea. Given the discounts for these matters and the time you have spent on remand, Mr McKean submits you should be convicted and discharged.
Discussion
Starting point
[26] I will first discuss the starting points for the offending for each of you. This will depend on the charges and the seriousness of your offending.
[27] Mr Brown-Martin, I start with your demanding with menaces charge which I will take as the lead offence. I put aside the submission of premeditation made on behalf of the Crown. I consider that overstates the degree of any prior thought or planning. However, there are a number of other aggravating factors of your offending
that I take into account. You made the demands after the victim had suffered a violent assault, which you witnessed. You made the demands while inside a moving car and when you were back at your hotel. Although Ms Witehira was not involved in making the demands, you and Ms Witehira outnumbered the victim. You deprived the victim of his vehicle by selling it to an associate. You tracked and controlled the victim’s movements until he was able to ask the bank teller for help. Your assertion that you and the victim had a prior agreement he would pay you, does not in my view, reduce your culpability. It is an explanation but does not mitigate your offending.
[28] The Court has received a Victim Impact Statement from the victim. He refers to his physical injuries but notes that the majority of those were inflicted by Mr O’Connell. However, he also notes that he had to pay $600 as an ‘impound fee’ to get his car back. He further adds that he has a fear of retaliation.
[29]The Crown refers to three cases: Emery v Police, Opetaia v R and R v Lee.10
Mr Blaikie, on your behalf, refers to Young v Police.11
[30] I consider the facts of Emery and Lee to be the most relevant. The offending in Opetaia was not as serious as, in that case, little was actually taken, there was no actual violence, and the demand occurred over a much shorter period of time.
[31] I also consider your offending is more serious than in Young v Police. I consider the seriousness of your offending to be between that of Emery and Lee. There was no element of home invasion in your case, but the offending occurred in the victim’s own vehicle. Further, the taking of the vehicle, the threats of violence, and the length of time you stood over the victim must be acknowledged. I therefore set the starting point for the demanding with menaces charge at two and a half years.
[32] For the rest of your charges, I consider the agreed uplift of one year is appropriate. In sentencing Mr O’Connell, Harvey J took the charge of injuring with intent to injure as the lead charge and then made an uplift of 18 months for the
10 Emery v Police [2014] NZHC 430, Opetaia v R [2011] NZCA 621; and R v Lee HC Auckland T002709, 18 January 2002.
11 Young v New Zealand Police [2022] NZHC 1009.
additional offending.12 However, that additional offending involved one charge of unlawful discharge of a firearm; and one charge of possession of precursor materials with intent to manufacture methamphetamine as well as the two charges of unlawful possession of a firearm. I consider Mr O’Connell’s additional offending to be more serious than yours. This brings your adjusted starting point, Mr Brown-Martin, to three and a half years’ imprisonment.
[33] Ms Witehira, there are no aggravating features of your offending. Both the Crown and your counsel agree that a starting point of 12 months’ imprisonment is appropriate. However, as well as the two possession charges you also pleaded guilty to discharging a firearm. There was also live ammunition present. Based on other cases referred to me,13 I consider a 12 month starting point is a little low. Acknowledging that you were a secondary possessor, I adopt a starting point of 14 months’ imprisonment.
[34] I now move onto the personal aggravating and mitigating factors for each of you.
Personal aggravating and mitigating factors
[35] Mr Brown-Martin, your PAC report records that you were a member of the Tribesman gang as a “collector”. You would be sent to collect money or debt from people and your methods often involved violence. This is reflected in your conviction history. I note in particular, you were convicted of charges of demanding with intent to steal and unlawfully carrying or possessing a firearm in 2019. Further violent, threatening and dishonesty offences date back to 2015. An uplift of three months, equivalent to just over seven per cent of the starting point, is appropriate for your prior convictions.
12 R v O’Connell, above n 1, at [22].
13 Manapori v New Zealand Police [2020] NZHC 627: starting point of 18 months for two unlawful possession of a prohibited firearm (two pump action shotguns) charges, uplifted by 12 months for cannabis offending and possession of ammunition; Rowell v New Zealand Police [2019] NZHC 471: starting point of 18 months for unlawful possession of a pistol; and Waite v New Zealand Police [2015] NZHC 585: starting point of 18 months imprisonment for being in unlawful possession of pistol (a sawn-off shotgun).
[36] Your PAC report indicates instability in your home when you were growing up. You have not undertaken any vocational training and you were introduced to drugs at a young age by a relative you were living with. You admit to carrying firearms for your own protection due to seeing people getting shot in front of you. However, the PAC report records you lack insight into your offending and show unwillingness to engage with any drug dependency or rehabilitative programmes. The s 27 report refers to your disadvantaged background and in particular I note your drug and alcohol addictions from a young age and gang affiliations from a young age. Mr Blaikie refers to your being abused by gangs leading to periods of incarceration earlier in your life. I accept a discount of 10 per cent is appropriate to recognise how your background has contributed to your offending today.
[37] Your guilty plea is a further mitigating factor. There is disagreement over whether a 20 or 25 per cent discount should be given. The delay in your guilty plea to the demanding with menaces charge was due to the original charge being one of kidnapping. After discussions with the Crown and the amendment of the charge, you pleaded guilty. I propose to follow the approach adopted for Mr O’Connell where Harvey J said:14
[27] … You then pleaded guilty following a resolution agreement, based on the significantly altered charge list and summary of facts.
[28] On the one hand, I agree that you should receive a significant discount for your guilty plea, as you entered it at what, in the circumstances of this case, was at an early opportunity. Before then, pleading guilty would have required you to accept responsibility for significantly more serious charges – charges that have since been abandoned. So, you pleaded guilty as soon as there was a degree of mutuality with the Crown as to your criminal responsibility. Accordingly, I accept that you should not be penalised for waiting until that stage occurred.
[29] Conversely, giving a full discount for a guilty plea following a significant reduction in charges may have constituted a “quite unmerited double benefit” to quote the Court of Appeal. In summary and being conscious that the reduction ought not be entirely ‘double counted’, in my assessment, a 20 per cent discount is appropriate in your circumstances.
14 R v O’Connell, above n 1 (footnotes omitted).
[38] This brings your total discount for your personal factors to 23 per cent (made up as follows: 20 per cent for your guilty plea; 10 per cent for your personal background less 7 per cent for your prior convictions).
[39] Ms Witehira, no aggravating features have been suggested to exist in relation to you. I accept that.
[40] As to mitigating features, Mr McKean submits you should receive a discount for your personal background. I have read the s 27 cultural report filed on your behalf. Mr McKean submits that the contents of the report should not be published. I am prepared to direct that the report should not be accessed and the details I am about to mention should not be published. They are private and personal to you. [redacted] That concludes the portion that may not be published. The following aspects may be published. You grew up in an area where you could not avoid gang associations and drugs were readily available. I accept that your background has led to you being in a position where you were associating with a gang member and you were in possession of firearms together. I consider a 10 per cent discount appropriate.
[41] You have spent six months remanded in custody and you were on electronically monitored (EM) bail for 15 months. You were granted EM bail to the Grace Foundation, a rehabilitation facility, to address alcohol and drug dependency on 26 May 2021. After completing the residential part of that programme you have been staying at various family addresses. The Court is required to take into account the time spent on EM bail as a mitigating factor.15 I give you a discount of 7 months for the time you spent on EM bail. This is a 50 per cent discount off the starting point.
[42] Finally, I give you a discount for your guilty plea. Both the Crown and your defence have submitted that a 20 per cent discount is justified. Although Mr McKean submits a 25 per cent discount might well be justified. I agree with the assessment of 20 per cent.
15 Sentencing Act 2002, s 9(2)(b).
[43] Your total discount is 80 per cent (made up as follows: 20 per cent for your guilty plea; 10 per cent for your background and 50 per cent for time spent on EM bail).
Sentences
[44]This brings me to the length of the sentences for each of you.
[45] Mr Brown-Martin, the adjusted starting point is three and a half years for your offending. This is 42 months. From that, I have given a discount of 23 per cent for your personal aggravating and mitigating factors. This comes to 32.3 months. I round this down in your favour to 32 months’ or two years and eight months’ imprisonment.
[46] Ms Witehira, your starting point is 14 months. With an 80 per cent discount, this comes to 2.8 months imprisonment.
[47] Mr McKean submits I should convict and discharge you. He says the time you have spent on remand has served the punitive and rehabilitative purposes of sentencing. However, the purposes of deterrence and denunciation are also key purposes when it comes to unlawful possession of prohibited firearms.16 Discharge is therefore not an appropriate outcome. I consider home detention is the least restrictive sentence to meet those purposes in your circumstances. I will therefore sentence you to 5 weeks’ home detention (rounded down in your favour). I will also remit your fines and to that extent you will have a clean slate when you have completed your period of home detention.
Result
[48]Would you both now please stand.
[49] Mr Brown-Martin, I sentence you to two years and eight months’ imprisonment on the demanding with menaces charge. On each of the firearms charges I sentence you to six months imprisonment to be served concurrently with the demanding with menaces charge. On the dangerous driving charge I sentence you to one month’s
16 R v Richardson CA450/02, 25 March 2003 at [33].
imprisonment to be served concurrently with all the other charges. I also impose a period of six months’ disqualification from holding or obtaining a driver’s licence. This will commence when you are released from your imprisonment.
[50] Ms Witehira, I sentence you to 5 weeks’ home detention, on each of your three charges to be served concurrently, on the conditions set out in your PAC report dated
18 July 2022. Those conditions include conditions which will supplement the rehabilitation work you have already done.
[51] I also make an order for the forfeiture of the firearms and ammunition retained by the Police.17
[52]Would you both stand down please.
Gordon J
17 Arms Act 1983, s 69.
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