Rawiri v R
[2021] NZHC 1573
•29 June 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2021-404-000239
[2021] NZHC 1573
BETWEEN CHASE TYRONE RAWIRI
Appellant
AND
THE QUEEN
Respondent
Hearing: 29 June 2021 Appearances:
S J Galler for the Appellant
A Al-Janabi for the Respondent
Judgment:
29 June 2021
ORAL JUDGMENT OF VAN BOHEMEN J
Solicitors/Counsel:
SJ Galler, Auckland
Crown Solicitor, Kayes Fletcher Walker Limited, Manukau
RAWIRI v R [2021] NZHC 1573 [29 June 2021]
Introduction
[1] Chase Rawiri appeals the sentence of three years’ imprisonment imposed by Judge D J McNaughton in the District Court at Manukau1 after Mr Rawiri had pleaded guilty to:
(a)Five charges of unlawful possession of a firearm;2
(b)Five charges of unlawful possession of explosives;3
(c)One charge of failing to stop for red and blue lights on a third or subsequent occasion;4 and
(d)One charge of unlawfully using a motor vehicle.5
[2] Mr Galler, counsel for Mr Rawiri, submits that the end sentence was manifestly excessive. Mr Galler says that the Judge erred by setting the starting point too high for the lead firearms offending, failing to take the totality principle into account when uplifting the starting point, and giving manifestly excessive uplifts to take account of Mr Rawiri’s previous convictions and offending while on bail.
[3]The Crown opposes the appeal.
Background
[4] Mr Rawiri’s convictions relate to three instances of offending in 2018 and 2019.
1 R v Rawiri [2021] NZDC 6482.
2 Arms Act 1983, s 45(1). Maximum penalty four years' imprisonment or a $5,000 fine.
3 Arms Act, s 45(1).
4 Land Transport Act 1998, s 52A(1)(a)(ii) and (5). Maximum penalty three months' imprisonment. The Court must also order that the offender be disqualified from holding or obtaining a driver licence for two years.
5 Crimes Act 1961, s 226(1). Maximum penalty seven years' imprisonment.
December 2018
[5] In December 2018, a black Mercedes Benz was stolen from Glendene during a burglary. It was located three weeks later outside Mr Rawiri’s partner’s address in Māngere East, with false registration plates. A handbag located inside the car contained a modified .22 calibre Colt M4 carbine with an attached 24-round magazine. The firearm was loaded with 10 live rounds in the magazine. Two containers containing a further 59 live rounds were located in the handbag.
May 2019
[6] In May 2019, in the Tauranga area, Mr Rawiri was driving a silver Mercedes Benz which belonged to his brother. Police pursued the vehicle after Mr Rawiri refused to stop when signalled. When the vehicle was later found and searched, Police found a 5.56 mm calibre M4 military-style semi-automatic rifle with 18 live rounds in the 30-round capacity magazine located in the rear footwell. Police also located a 12- gauge pump action shotgun with no stock and a pistol grip, loaded with three live rounds. Police also found a spent shell in the boot of the car.
July 2019
[7] In July 2019, the Police executed a search warrant at a Māngere Bridge address where Mr Rawiri was living at the time and found a further two firearms. These were a modified .22 calibre AK47 derivative rifle with a 24-round magazine attached, which was found under the mattress in Mr Rawiri’s bedroom, and a cut down single barrel 12-guage shotgun, which was also found in the room, together with a bag containing 13 live 12-guage ammunition rounds.
Sentence Indication
[8] On 1 July 2020, Judge A M Wharepouri gave Mr Rawiri a sentence indication of a headline starting point of three years five months’ imprisonment. This comprised three years and two months for the firearms and ammunition charges, one month for the other charges and an uplift of two months for previous convictions and offending while on bail. Judge Wharepouri indicated that modest deductions would be made at
sentencing for any mitigating circumstances raised, together with a guilty plea discount of 25 per cent.6
[9]This sentence indication was not accepted by Mr Rawiri.
Application for an extension of time to file appeal
[10] Mr Rawiri seeks an extension of time to file his appeal because he filed the appeal in this Court on 17 May 2021, four days beyond the 20 day appeal period provided for in s 248(2) of the Criminal Procedure Act 2011 (CPA). Mr Galler explains that the appeal was initially filed in error, but within the appeal period, in the Court of Appeal.
The District Court decision
[11] Judge McNaughton adopted an initial starting point of three and a half years’ imprisonment. He considered this to be the minimum available starting point “given the nature of these firearms, given how dangerous they are, that they were modified and loaded with loaded magazine and readily available”.7 The Judge stated that he did not accept the explanation Mr Rawiri had given for having the guns (that he was going to use them to go hunting and to shoot cows) and said that the “blindingly obvious” reason Mr Rawiri was in possession of the guns and firearms was because of his association with the King Cobras gang.8 The Judge observed that a starting point of four years could have been adopted given the climate of gang activity and the use of firearms in South Auckland. The Judge considered that a starting point of three years six months’ imprisonment was the minimum available.
[12] In arriving at this starting point, the Judge noted that he was not bound by Judge Wharepouri’s sentence indication and that, in any event, Mr Rawiri had not accepted the indication and had entered his guilty plea just before trial.
6 R v Rawiri DC Manakau CRI-2019-092-005224, 1 July 2020.
7 R v Rawiri, above n 1, at [21].
8 At [21].
[13] The Judge applied a six-month uplift for the offending in relation to the stolen Mercedes Benz, a second six-month uplift for Mr Rawiri’s previous firearms convictions, and a three-month uplift to reflect his offending on bail and while subject to release conditions. In arriving at these figures, the Judge considered Mr Rawiri’s criminal history, dating back some 20 years, which included two Arms Act 1983 convictions (one for unlawful possession of a pistol in 2018 for which he was sentenced to 18 months’ imprisonment) together with convictions and prison sentences for burglary, receiving, unlawful taking, assault with and without a weapon, and robbery. The Judge noted that Mr Rawiri was subject to release conditions from a previous sentence of imprisonment when all three instances of the current offending occurred. Moreover, he was on bail for the December 2018 and May 2019 offending when he was charged with the July 2019 offences.
[14] Together, the initial starting point and uplifts resulted in a final starting point of four years and nine months’ imprisonment.
Discounts
[15] The Judge gave a 15 per cent discount for the guilty pleas – which he considered to be the absolute maximum he would apply given that the pleas were late and the charges were laid back in 2019. 9
[16] After having reviewed the cultural report and Mr Rawiri’s circumstances, the Judge gave a 20 percent discount for cultural factors. He noted that while Mr Rawiri has some degree of cultural connectedness and that it was perhaps not the worst example of systematic deprivation and disadvantage, a large discount was appropriate to reflect that Mr Rawiri had faced early exposure to violence, drugs, alcohol, disrupted education and traumatic exposure to sexual abuse. A one-month discount was given for remorse, expressed in a letter, and the steps Mr Rawiri had taken to change such as completing courses. The Judge noted that as Mr Rawiri had already been in custody for a year and a half and he imagined that an appearance before the parole board was not too far away.
9 At [23].
[17] Accordingly, a final sentence of three years was imposed together with a mandatory disqualification from driving for two years in relation to the charge of failing to stop for lights and sirens.
Approach on appeal
[23] Section 250(2) of the CPA provides that the Court must allow an appeal against sentence if it is satisfied that there is an error in the sentence and a different sentence should be imposed. In any other case, it must dismiss the appeal.
[24] Section 251(1) of the CPA provides that if a Court allows an appeal against sentence it must set aside the sentence and impose another sentence that it considers appropriate.
[18] The Court of Appeal has confirmed that, in applying s 250(2) of the CPA, the Court should continue to apply the long-established approach to reviewing sentences.10 An appeal against sentence will be successful only if the appellant can point to an error, either intrinsic to the Judge’s reasoning, or as a result of materials submitted on the appeal, that vitiates the lower Court’s sentencing discretion.11 Unless there is a material error in the end sentence, the Court will not intervene.12 There will be a material error if the end sentence is manifestly excessive or wrong in principle.13 In general, the focus is on whether the end sentence is within the available range, rather than the process by which the sentence was reached.14 However, there may be cases where there has been error that requires correction, even if the sentence imposed is within range.15
[19] Section 248(4) provides that the first appeal court may, at any time, extend the time allowed for filing a notice of appeal.
10 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [30]; and Tamihana v R [2015] NZCA 169, at [14].
11 Tamihana v R [2015], above n 10, at [29] – [30]; and Tamihana v R, above n 10, at [14].
12 Te Aho v R [2013] NZCA 47 at [30]; and Tamihana v R, above n 10, at [14].
13 Tamihana v R, above n 10, at [14].
14 Tutakangahau v R, above n 10, at [36]; and Tamihana v R, above n 10, at [14].
15 Tutakangahau v R, above n 10, at [36].
Counsel submissions on the issues in contention
The starting point
[20] Mr Galler submits that a three-year starting point should have been set for the lead charges under the Arms Act. Mr Galler refers to R v Cochrane,16 where Gendall J set a starting point of two years for a defendant who pleaded guilty to four charges of unlawful possession of a firearm and one charge of unlawful possession of ammunition, after being found in possession of two sawn-off shotguns modified with pistol grips, a pump action shotgun and a .223 calibre assault rifle, along with ammunition hidden in a secret compartment in a dwelling house. Mr Galler accepts that Mr Rawiri’s offending was “slightly more serious” than that in Cochrane because he was found in possession of one more firearm and a higher number of military style weapons. For these reasons, he says starting point of three years would be appropriate.
[21] Mr Galler also refers to Gray v R17 and R v H18 where uplifts of two years’ imprisonment in respect of serious Arms Act offending (as well as other offending in Gray v R), were added to starting points set for serious drug offending. Mr Galler submits that the discussion in those cases indicates that, if those cases had involved stand-alone firearms offending, a starting point of between three and four years’ imprisonment would have been appropriate in Gray, which involved more serous firearms offending than the present case, and that a starting point in the vicinity of there years would have been appropriate in R v H.
[22] Ms Al-Janabi, counsel for the Crown, submits that Judge McNaughton did not err in adopting a starting point of three years and six months’ imprisonment for the firearms offending. While the starting point may have been at the upper end of the available range, it reflected the number of firearms and items of ammunition found over three separate occasions during a seven month period.
[23] Ms Al-Janabi refers to two decisions where the Court has held that starting points of between two to three years’ imprisonment are appropriate for possession of
16 R v Cochrane [2020] NZHC 1485.
17 Gray v R [2015] NZCA 297.
18 R v H [2018] NZHC 1760.
a single shotgun. In Herewini v Police,19 Moore J noted a “general trend” of upholding a starting point of between two and two and a half years’ imprisonment for possession of a single sawn- off shotgun. In Atkinson v Police,20 Heath J held that a starting point of three years and six months’ imprisonment was appropriate where the offender had been found with a single loaded cut-down pump action shotgun together with a detonator attached to a fuse and a stick of Powergel explosive. Ms Al-Janabi also submits that the decisions in Gray and R v H are of limited assistance because the firearms offending was dealt with as an uplift and the cases did not articulate the discrete starting point that would have been appropriate if the firearms charges had been the lead offences.
[24] For these reasons, Ms Al-Janabi submits that the starting point of three years and six months’ imprisonment was within range, and that the Judge did not err in the emphasis he placed on the aggravating features of the offending, especially its recidivism and its apparent gang-related context.
Uplifts
[25] Mr Galler submits that the uplift of six months’ imprisonment for the charges of failing to stop and unlawfully using a motor vehicle was excessive and has led to a manifestly excessive starting point. He submits, with reference to the Court of Appeal’s comments in R v Barker,21 that a three-month uplift was appropriate to take into account the totality principle.
[26] Mr Galler says the Judge further erred in the six month uplift for previous convictions and in the three month uplift for offending while on bail and while subject to release conditions. He notes that Mr Rawiri’s firearms charge in 2014 related only to the possession of one shotgun shell. While he accepts the 2018 conviction for possession of a pistol is relevant, he points to decisions which, he says, support the submission that an uplift of two months would have been appropriate.22
19 Herewini v Police [2014] NZHC 2396 at [26].
20 Atkinson v Police HC Auckland CRI-2006-404-0395, 20 March 2007.
21 R v Barker CA57/01, 30 July 2001.
22 Gunbie v New Zealand Police [2019] NZHC 250; Smith v New Zealand Police [2014] NZHC 2196; and Aspinall-Su’a v New Zealand Police [2020] NZHC 3022.
[27] Ms Al-Janabi submits that the Judge’s six-month uplift for the vehicle-related offending was within range. She notes that uplifts of greater magnitude have routinely been upheld on appeal for similar offending, and refers to this Court’s decisions in Birch v Police23 and Duxfield v Police24 where uplifts of between 12 and 18 months were imposed for the charge of unlawfully taking a motor vehicle, which carries the same maximum penalty as the charge to which Mr Rawiri pleaded guilty.
[28] Ms Al-Janabi also says the offending was moderately serious and, in accordance with s 85 of the Sentencing Act 2002, warranted separate recognition provided the total period of imprisonment was not wholly out of proportion to the gravity of the overall offending. She also submits that an uplift of six months cannot be excessive when this offending, would on its own, attract a starting point of 12 months’ imprisonment.
[29] Ms Al-Janabi also argues that the uplift of nine months’ imprisonment to reflect Mr Rawiri’s offending while on bail and his previous convictions was appropriate. She notes Mr Rawiri had only been on EM bail for one month when he committed the July offending which resulted in new charges of the same kind as those for which he was on EM bail. Moreover, Mr Rawiri has 47 previous convictions for offending while on bail – including all three of his previous firearms offences. Ms Al-Janabi notes that Mr Rawiri has two firearms convictions and that this pattern of offending demonstrates a recidivist pattern of unlawful involvement with firearms which poses a danger to the community.
Was the end sentence manifestly excessive?
[30] Mr Galler submits if his submissions on starting point and uplifts are accepted, that would result in an end sentence of two years and four months’ imprisonment. On this basis the end sentence of three years was manifestly excessive.
[31] Ms Al-Janabi submits that the final sentence of three years’ imprisonment, taken overall, was not manifestly excessive because:
23 Birch v Police [2020] NZHC 878.
24 Duxfield v Police [2015] NZHC 3018.
(a)Even if the Court considers that the starting point was high, generous discounts were applied for personal mitigating factors and Mr Rawiri’s late guilty plea; and
(b)The end sentence appropriately reflects the need for deterrence given the seriousness of Mr Rawiri’s offending and the frequency with which Mr Rawiri has been before the Court for similar offending.
Discussion
Extension of time to file notice of appeal
[32] I am satisfied that an extension of time should be granted. The delay in filing the notice of appeal was a matter of a few days and arose from a mistake by counsel.
Starting Point
[33] There is no tariff case for firearms offending and, as counsel have observed, there are few decisions where sentences have been set on the basis that the firearms offending was the lead. However, where there is a single firearm with no mitigating circumstances, a starting point in the vicinity of two to three years has been adopted by this Court.25 And, as the Court of Appeal has stated in Torea v R, possession of firearms, particularly by those with gang connections, will require a sentence that is an effective deterrent to the offender and to others who may be similarly minded.26 While I note Mr Galler’s submission that there is no evidence to establish that Mr Rawiri’s possession of the firearms was directly connected to Mr Rawiri’s gang membership, I consider Judge McNaughton’s observations about that connection to be based on an inference available to the Judge, given that it is well-established that firearms use by gangs has become more prevalent.
25 In addition to the cases referred to by Crown counsel see also R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338 at [41] (loaded shotgun in the boot of car, offender claimed it was for protection, court accepted the two year starting point but considered it at the lower end); and Torea v R [2011] NZCA 96 (starting point of two years and six months appropriate where the single firearm was loaded and ready to use with obvious gang overtones).
26 Torea v R, above n 25, at [15].
[34] I have taken note of the decisions referred to by Mr Galler. I acknowledge that R v Cochrane has some similarities to the facts of the present case. However, that was a case where, in a single incident, the Police found four firearms and a quantity of ammunition hidden in a secret compartment. That is rather different from the multiple instances of firearms being found in the present case, some of which were loaded and stored in locations allowing ready access and use. I consider the offending here to be significantly more serious.
[35] I also consider the decisions in Gray and R v H to be of marginal assistance because they involved sentences imposed for firearms offending in a context where that offending was not a lead offence.
[36] I consider that the starting point of three years six months’ imprisonment adopted by Judge McNaughton was within the range available. The Judge identified the appropriate aggravating features of the offending, including the readily available nature of the five firearms, the fact that many were loaded, the volume of ammunition, the gang-related context of the offending, the military style nature of the weapons, and the circumstances that suggested that Mr Rawiri was regularly in possession of firearms and ammunition and had a ready means of access to these (even while on EM bail). The Judge was entitled to place the emphasis which he did on these factors.
[37] The maximum penalty under s 45 is four years’ imprisonment, even for possession of a single firearm. Where the offending involving five charges for five firearms and five charges for possession of a large quantity of ammunition in the circumstances described above, I am satisfied that a starting point of three and a half years’ imprisonment was within the range available to the Judge.
Uplifts
[38] I am satisfied that an uplift of six months for the motor vehicle offending was appropriate in the circumstances. This offending was different in kind from the lead firearms offending. In accordance with s 85(1) of the Sentencing Act, the sentence imposed for that offending should reflect the seriousness of the offending. While I do not consider this offending to be especially serious, an uplift of six months is hardly
disproportionate given that significantly higher uplifts have been applied for similar offending carrying the same maximum penalty.27
[39] Of course, the sentence must reflect the totality of the offending, but that is a consideration to be applied when assessing the end sentence, as recognised in s 85(2) of the Sentencing Act. For that reason, I do not consider that Judge McNaughton can be faulted for not mentioning totality considerations when setting this uplift.
[40] I agree the six-month uplift imposed for Mr Rawiri’s previous two firearms convictions was high and carries the risk of punishing Mr Rawiri twice for the same offending. I consider that an uplift of two months would have been more appropriate. However, whether the uplift of six months has resulted in a manifestly excessive sentence requires consideration of the end sentence, including the discounts applied by Judge McNaughton.
[41] On the other hand, I do not accept that the three-month uplift for offending while on EM bail and subject to release conditions was excessive. Not only did Mr Rawiri offend while subject to release conditions for all the charges, he accumulated charges in July of the same nature while on EM bail.
Was the end sentence manifestly excessive?
[42] As Mr Galler has emphasised, Judge McNaughton did not refer to the principle of totality in setting the sentence. That omission is not of consequence as long as the sentence imposed is in proportion to the gravity of the offending.28 In addition, it is well established that, provided the sentence reflects the totality of the offending, it is not for an appellate Court to determine that the total sentence should have been constructed in any particular way.29
[43] Here, Mr Rawiri’s final sentence was one of three years. That was the result of Judge McNaughton:
27 Birch v Police, above n 23; and Duxfield v Police, above n 24.
28 Kite v R [2018] NZCA 485 at [21].
29 See for example R v William CA91/00, 31 May 2000 at [11]; R v Barker CA57/01, 30 July 2001 at [10]; R v Xie [2007] 2 NZLR 240; (2006) 22 CRNZ 949 (CA) at [p16]; Houston v R [2013] NZCA 581 at [11]; and R v Dodd [2013] NZCA 270 at [32] – [33].
(a)Setting a starting point of three years and six months’ imprisonment;
(b)Adding uplifts of six months for the motor vehicle offending, six months for the previous firearms offending and three months for offending while on EM bail and subject to release conditions; and
(c)Making deductions of 35 per cent for Mr Rawiri’s guilty plea (15 per cent) and cultural factors (20 per cent).
[44] Given that Mr Rawiri pleaded guilty on the morning of a six day stand-by fixture, the deduction of 15 per cent for his guilty plea could be considered very generous, having regard to the Supreme Court’s comments in Hessell v R that a “real justification” for a discount will be required if the plea is entered after the trial has commenced.30 In the circumstances, the deduction for Mr Rawiri’s guilty plea could have been much lower and limited to the order of five per cent.
[45] I accept that the deduction for cultural factors was appropriate. Nonetheless, even if the uplift of six months for the previous firearms offending was too high, I am satisfied that the generous discount applied by the Judge for the guilty plea brought the final sentence down to one which was within the available range and reflected the totality of the three sets of offending over a seven month period as a whole.
[46] For these reasons, I am satisfied that the final sentence of three years’ imprisonment was not manifestly excessive.
Result
[47]The time for filing the notice of appeal is extended.
30 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [76].
[48]The appeal is dismissed.
G J van Bohemen J
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