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R v Lowther

R v Lowther

Case [2023] NZHC 3515 5 December 2023

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-004-001470

[2023] NZHC 3515

THE KING

v

MARK ANDREW LOWTHER

Hearing: 5 December 2023 and 14 December 2023

Appearances:

E T Fletcher and N E Wilgar for Crown (05.12.23) N Walker for Crown (14.12.23)

T Clee for Defendant (by VMR)

Judgment:

5 December 2023

Reissued:

14 December 2023

SENTENCING NOTES OF VENNING J

Solicitors/Counsel:
Kayes Fletcher Walker Ltd, Manukau T Clee, Auckland

R v LOWTHER [2023] NZHC 3515 [14 December 2023]

[1] Mark Lowther you appear for sentence today having pleaded guilty to a charge of money laundering. A conviction has not yet been entered because Mr Clee has indicated you would be applying for a discharge without conviction. You have now filed the application for discharge without conviction which is supported by affidavit evidence and other materials.

[2] So the Court must first deal with that application for discharge without conviction before considering any sentence that would be imposed on you if the application is unsuccessful.

[3] The application for discharge is governed by s 106 of the Sentencing Act 2002 which provides:

If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

[4] Section 107 provides guidance for the Court in considering whether to discharge someone such as you without conviction:

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[5] In R v Hughes and Z v R the Court of Appeal confirmed this Court is required to consider three issues.1 First, it must assess the gravity of the offending having regard to the facts of the particular case. At this stage factors personal to you may also be relevant. Next, the Court must identify the direct and indirect consequences of a conviction, and finally, the Court must determine whether the consequences of conviction would be out of all proportion to the gravity of the offending. There is a residual discretion not to grant a discharge but that is rarely exercised if the statutory criteria are met.

[6] So the first issue is the gravity of the offending. Mr Lowther, your offending relates to one charge in which you are jointly charged with Daniel Hannett and Warwick Wong. The offending is connected to a major drug importation and supply

1 R v Hughes [2008] NZCA 546; and Z v R [2012] NZCA 559.

operation. The Police investigation focused on Mr Hannett, who became the subject of a number of surveillance device warrants issued by this Court. Mr Hannett is a director and shareholder of several companies. He also has gang affiliations. During the time Mr Hannett was under surveillance he owned…

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 R v Lowther

Details

AGLC: R v Lowther [2023] NZHC 3515
Case: [2023] NZHC 3515
Decision Date: 5 December 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of The King v Mark Andrew Lowther involves a charge of money laundering. Lowther pleaded guilty to participating in a scheme to launder $5 million in drug proceeds. The court had to decide on an application for discharge without conviction under section 106 of the Sentencing Act 2002, considering whether the consequences of a conviction would be disproportionate to the gravity of the offence. The court assessed the gravity of Lowther's involvement in the money laundering operation, which was significant despite his limited role as a conduit between key parties. The court also evaluated the direct and indirect consequences of a conviction, including the impact on Lowther’s employment prospects and entrepreneurial ventures.

After considering the evidence and submissions, the court determined that the consequences of a conviction were not out of proportion to the seriousness of the offence. The application for discharge without conviction was dismissed. In determining the sentence, the court applied the purposes and principles of sentencing, focusing on accountability, denunciation, deterrence, and rehabilitation. The court calculated a starting point of three years, four months, reduced by 42.5% due to Lowther's early guilty plea, lack of previous convictions, and personal circumstances. The resulting sentence was 23 months' imprisonment, which was converted to 12 months of home detention, subject to suitability of the proposed address and conditions.

The final orders were that Mark Andrew Lowther is sentenced to home detention for 12 months at 38 Georgina Street, Freemans Bay, with special conditions attached to the pre-sentence report and standard post-release conditions. The court emphasised the importance of Lowther using this opportunity for rehabilitation and avoiding future criminal conduct.

Orders