R v Te Poono - [2020] NZHC 308

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-092-012562

[2020] NZHC 308

THE QUEEN

v

DIVA MATENE TE POONO

Hearing: 27 February 2020

Counsel:

D B Stevens for the Crown

J A Philson for the Defendant

Sentence:

27 February 2020

SENTENCE OF EDWARDS J

Counsel: J A Philson, Auckland

Solicitors: Kayes Fletcher Walker Limited, Auckland

R v TE POONO [2020] NZHC 308 [27 February 2020]

[1] Diva Te Poono, you are here to be sentenced for one charge of possession of cannabis for supply, and one charge of being an accessory after the fact to causing grievous bodily harm with intent. You pleaded guilty to both charges.

[2] In sentencing you today, I take into account the need to hold you accountable, to promote a sense of responsibility in you, to denounce your offending and to deter you and others from committing similar offences. I also take into account your rehabilitation and reintegration prospects. Consistency with the other sentences for comparable offending is important as is the need to impose the least restrictive sentence in the circumstances.

The offending

[3] Sentencing follows a process, and the first step in the sentencing process is to summarise your offending. The accessory after the fact offending follows the death of Mr Tusi on 13 November 2018. You and your cousin, Kiria, were at the property that night. It is not necessary to go over the events of that night in detail at this stage, except to say that Kiria shot Mr Tusi in the leg with a 12-gauge semi-automatic shotgun. Kiria was convicted of murder following a two-week jury trial last year and is to be sentenced at a later date.

[4] Diva, you took the shotgun in a black nylon gun bag and two sports bags containing cannabis back to your home and stored them in your bedroom wardrobe. The following morning, your father took the shotgun to his place, and police subsequently recovered it there.

[5] Police found the cannabis when they searched your house the morning after the shooting. They recovered 382 grams of cannabis in tinnies, snaplock plastic bags, and loose plant material. They also found electronic scales, rolls of tinfoil and scissors, as well as $530 cash.

Personal circumstances

[6] In terms of your personal circumstances, you are 38 years old. You are of Ngāti Awa descent and your marae is Te Māpou Marae in Te Teko. You have six children with your partner whom you met at 19 years of age.

[7] The pre-sentence report writer records you as being very remorseful for the offending relating to the shotgun but not remorseful for the cannabis offending. The report writer records your risk of offending as being moderate to high, but at low risk of harm to others.

[8] You have 13 previous convictions for offending between 2010 and 2016. Eleven of those relate to cannabis-related offending, including nine convictions for possession or sale of cannabis,…

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 Te Poono

Details

AGLC: R v Te Poono [2020] NZHC 308
Case: [2020] NZHC 308
Decision Date: 27 February 2020

CaseChat Overview and Summary

In the case of R v Te Poono, the defendant, Diva Matene Te Poono, faced sentencing for two charges: possession of cannabis for supply and being an accessory after the fact to causing grievous bodily harm with intent. The defendant pleaded guilty to both charges. The High Court of New Zealand, Auckland Registry, was responsible for determining the appropriate sentence.

The primary legal issues involved assessing the appropriate sentence for the possession of cannabis for supply, considering the defendant's previous convictions, personal circumstances, and the seriousness of the offence. The court also needed to determine the appropriate sentence for being an accessory after the fact, taking into account the defendant's actions to obstruct the police investigation and their role in assisting with the murder prosecution of their cousin.

The court found the defendant's cannabis offending to fall towards the bottom of band 2 of the Court of Appeal's sentencing guidelines for cannabis offences. The court considered the quantity of cannabis, cash, and other items recovered, but also the defendant's basic and low-level operation. The court imposed a starting point of 18 months for this offence and applied a three-month uplift for the 11 previous cannabis-related convictions. The court then applied a three-month discount for the mitigating factors and a 25 per cent discount for the guilty plea, resulting in a sentence of 13 months' imprisonment for the cannabis offence.

For the accessory after the fact charge, the court considered the defendant's actions to obstruct the police investigation and their role in assisting with the murder prosecution of their cousin. The court imposed a starting point of 12 months for this offence and applied a four-month discount for the mitigating factors and a 25 per cent discount for the guilty plea, resulting in a sentence of three months' imprisonment for the accessory offence.

The court determined that the total sentence for both offences should be 16 months' imprisonment, to be served cumulatively. The court considered home detention as the least restrictive sentence but, due to the unavailability of a suitable home detention address, imposed a term of imprisonment with leave to apply for home detention should an appropriate address become available.

The final orders included a 13-month sentence for the possession of cannabis for supply, a three-month sentence for the accessory after the fact charge, special release conditions, and a forfeiture order for the $530 cash under section 32 of the Misuse of Drugs Act 1975.

Orders