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, and one conviction for cultivating cannabis. The other two convictions are not relevant to the accessory charge.

[9]    I have received and considered a s 27 cultural report filed on your behalf. That report paints a childhood characterised by parental neglect and embedded gang culture. You took on responsibility for looking after your nine younger siblings from a young age. That disadvantage set you up to make bad life choices and those bad life choices are evident in the offending before the Court today.

Cannabis offending

[10]   The cannabis offending carries a maximum penalty of eight years’ imprisonment. I start with your conviction for that offending.

[11]   The Court of Appeal has set out some sentencing guidelines for cannabis offending.1 Given the quantities of cannabis found, the cash, and the other items located, I consider your offending to fall towards the bottom of band 2 of those guidelines.

[12]   There is no dispute that you were operating a business and you were profiting from the sale of an illegal substance. But there is no evidence of the volume of sales

1      R v Terewi [1999] 3 NZLR 62 (CA).

or the profit that you made. The items recovered by police suggest that your operation was fairly basic and low level.

[13]   I consider the cases referred to me by Crown counsel involve offending more serious than yours, either because there was more cannabis or more cash, indicating a greater degree of commerciality.2 The cases referred to me by your counsel suggest a range of between 15 months and two years for comparable offending. I adopt a starting point of 18 months for the cannabis offending.3

[14]   In terms of personal aggravating features, I apply a three-month uplift for the 11 previous convictions for cannabis-related offending.

[15]   Your background and your circumstances growing up do not excuse your offending, but they assist in understanding why you acted like you did. I accept that the cannabis offending reflects learned behaviour shaped by an upbringing surrounded by illicit substances. Your role as primary caregiver for your siblings cut short your education, reducing your employment opportunities, and impacting on the ways you chose to support your family. These factors mitigate your culpability to some extent.

[16]   You have not shown any remorse for this offending. Indeed, there is a tone of defiance running through your comments to the pre-sentence report writer which is a matter of real concern. Nevertheless, you have expressed a desire to address your drug use and you are motivated to attend a residential programme should a bed become available. The pre-sentence report writer is of the view that you would benefit from a specialist Māori cultural assessment and participation in a tikanga programme – and I agree. All of that bodes well for your rehabilitation and your reintegration back into society.

[17]   Weighing all these factors in the balance, I apply a three-month discount for these mitigating factors.

2      R v Pelikani [2014] NZHC 930; R v Duncan [2009] NZCA 18.

3      Newton v Police [2019] NZHC 1245; Devereux v Police [2017] NZHC 167.

[18]   In terms of the discount for the guilty plea, you did not enter your plea to this charge at the earliest opportunity, but there appears to be a reasonable explanation for that. In your particular circumstances, the Crown accepts that the full discount is appropriate. I agree and apply a 25 per cent discount accordingly.

[19]   That would bring your sentence to between 13 and 14 months’ imprisonment for this offending alone.

Accessory after the fact

[20]   The accessory after the fact charge carries a maximum penalty of five years’ imprisonment. There is no guideline judgment for this type of offending. It ranges from destruction of evidence at one end of the scale to giving one-off assistance at the other.

[21]   You took the shotgun from the property in an attempt to conceal it from police and to distance your cousin, and yourself, from what happened. Deliberate attempts to obstruct police investigations require a sentence that will denounce and deter you and others from such conduct. If sentenced on a stand-alone basis, the starting point for this offence would be 12 months’ imprisonment.

[22]   There are no uplifts required for aggravating features in respect of this offending that are personal to you. But, in terms of mitigating features, a discount for the assistance given to the Crown in the murder prosecution of Kiria Te Poono is warranted. The genuine remorse for your part in hiding the shotgun after the events of that night is also appropriate. Your personal circumstances, and in particular your role as provider and protector of your siblings, explains your desire to assist Kiria by hiding the shotgun. I apply a discount of four months for all of those factors.

[23]   A 25 per cent discount for an early guilty plea is also warranted in this case. That would bring your sentence to six months’ imprisonment for the accessory offending if sentenced on a stand-alone basis.

Totality

[24]   That would bring the total end sentence for both offences to between 19 and 20 months’ imprisonment. I consider a discount of approximately three months’ imprisonment is appropriate to reflect totality principles.

[25]   This would equate to total end sentence of 16 months’ imprisonment – 13 months for the cannabis offending, and three months for the accessory offending. As the offending is separate and distinct, the sentences must be served cumulatively.

[26]   This brings your end sentence within the realm of home detention. That is the second most restrictive sentence in the hierarchy of sentences. Given your motivation to address your drug issues, and your other prospects for rehabilitation, I consider sentencing you to home detention at a residential rehabilitation programme would be the least restrictive sentence in all the circumstances.

[27]   However, you have not been offered a place in such a programme, and there is no other suitable home detention address. As your counsel accepts, the only option is to sentence you to a term of imprisonment with leave to apply should such an address become available.

Sentence

[28]Diva Te Poono, please stand.

[29]   For the offence of possession of cannabis for supply, I sentence you to 13 months’ imprisonment. For the offence of being an accessory after the fact to causing grievous bodily harm with intent, I sentence you to three months’ imprisonment. The sentences are to be served cumulatively, making the total sentence imposed 16 months’ imprisonment.

[30]   I impose the following special release conditions which are to expire six months from your sentence expiry date:

(a)Not to possess, consume or use any alcohol or drugs not prescribed to you.

(b)To attend an assessment for a residential or intensive outpatient drug and alcohol programme as directed by a probation officer. To attend and complete any such programme as recommended by the assessment as directed by and to the satisfaction of the probation officer.

(c)To attend an assessment for any counselling, treatment or programme as directed by a probation officer. To attend and complete any counselling, treatment, or programme as recommended by the assessment as directed by, and to the satisfaction of a probation officer.

[31]   Leave is reserved to apply for home detention should an appropriate address become available.

[32]   I also make an order forfeiting the $530 cash under s 32 of the Misuse of Drugs Act 1975.

[33]Diva Te Poono, you may stand down.

Edwards J