Westrupp v The King
[2024] NZHC 1087
•3 May 2024
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2024-441-5
[2024] NZHC 1087
BETWEEN NGAWI HOKIANGA ANTHONY WESTRUPP
Appellant
AND
THE KING
Respondent
Hearing: 30 April 2024 Appearances:
A M M Ives for Appellant
M J R Blaschke for Respondent
Judgment:
3 May 2024
JUDGMENT OF GRICE J
(Leave for appeal to be filed out of time application and sentence appeal)
Introduction
[1] Mr Ngawi Westrupp was sentenced to three years’ imprisonment in the Napier District Court on 2 February 2024 on charges relating to methamphetamine dealing and distribution. He now appeals his sentence on the grounds that the sentence was manifestly excessive. He submits that the starting point was too high, and the Judge should have applied further discounts which would have resulted in a sentence of home detention.
[2]Leave to appeal is required as the appeal was filed out of time.
[3] Mr Westrupp is 45-years old and has five children. He is a patched member of the Mongrelizm chapter of the Mongrel Mob in Wairoa. His offending related to the
WESTRUPP v R [2024] NZHC 1087 [3 May 2024]
distribution of methamphetamine within the Hawkes Bay and Wairoa areas in late 2021.
The offending
[4] Following a sentence indication based on an agreed statement of facts dated November 2023, Mr Westrupp entered guilty pleas and was sentenced on the following charges:
(a)Supply of methamphetamine;1
(b)Conspiracy to supply methamphetamine;2
(c)Attempted possession of methamphetamine for supply;3 and
(d)Failure to carry out obligations in relation to a computer search.4
[5] The charges arose out of an investigation into methamphetamine dealing in the Wairoa and Hawkes Bay areas focusing on the Mongrelizm and Barbarian chapters of the Mongrel Mob. I take the following outline from the agreed statement of facts.
Supply of methamphetamine to Mr Taumata
[6] On 1 December 2021, Apirana Taumata was recorded saying he had arranged to purchase half a kilogram of methamphetamine and that he was waiting for his associate to return with the product, stating he had paid $100,000. Mr Westrupp’s phone records indicate he was in Auckland between 30 November 2021 and 4 December 2021. The appellant was able to bypass Covid-19 border checkpoints to enter Auckland for his daughter’s chemotherapy treatment. While in Auckland he sent several text messages confirming he was buying methamphetamine to bring back to the Hawkes Bay and Wairoa.
1 Misuse of Drugs Act 1975, ss 6(1)(c) and 2(a) — maximum penalty life imprisonment.
2 Misuse of Drugs Act, s 6(2A)(a) — maximum penalty 14 years’ imprisonment.
3 Misuse of Drugs Act, ss 6(1)(f) and 2(a); and Crimes Act 1961, s 72 — maximum penalty 10 years’ imprisonment.
4 Search and Surveillance Act 2012, s 178 — maximum penalty 3 months’ imprisonment. The appellant was convicted and discharged in relation to this offence.
[7] On 5 December 2021 Mr Westrupp left Auckland, arriving in Napier on 6 December 2021. On his arrival, a phone call between Mr Westrupp and Mr Taumata was intercepted. The two agreed to meet. The two met later that evening where Mr Westrupp supplied Mr Taumata with half a kilogram of the methamphetamine he had collected in Auckland. This gave rise to the supply of methamphetamine charge.
[8] During this time, Mr Westrupp sent text messages to associates confirming he was buying wholesale quantities of methamphetamine to bring back to the Hawkes Bay and Wairoa. A telephone call between Mr Taumata and Mr Westrupp was captured in which they discussed the quality of the methamphetamine that Mr Westrupp had previously provided, and Mr Taumata indicated that he would like to purchase more and would get the cash to Mr Westrupp before the next trip to Auckland.
Attempted possession of methamphetamine for supply with Mr Kaimoana
[9] On 28 December 2021 Mr Westrupp received a call from a Mr Kaimoana where they discussed plans to supply methamphetamine, including specific details such as the price, and the quantity that Mr Westrupp was able to supply to Mr Kaimoana. On 29 December 2021, Mr Westrupp called Mr Kaimoana and advised him he had one kilogram of methamphetamine but was unable to source a second kilogram. Mr Westrupp confirmed to Mr Kaimoana that the methamphetamine was the same as the “last lot they got”.
[10] Mr Westrupp advised Mr Kaimoana he would bring the methamphetamine down to Wairoa, get the money off Mr Kaimoana and return to Auckland to pay for it.
[11] On the evening of the 29 December 2021 Mr Westrupp called Mr Kaimoana to advise he had got “one of those things” (a kilogram of methamphetamine) but could not get the second one off the dealer. At 11:00 pm Mr Westrupp was driving from Auckland to Napier. The vehicle was registered to Mr Westrupp’s partner who was the front seat passenger. Mr Westrupp’s children, aged two and three years old were in the backseat. The vehicle was stopped and a search warrant was executed. When asked Mr Westrupp told the police searching the vehicle that they would find methamphetamine in it. A kilogram of a substance found on analysis to be
N-isopropylbenzylamine was found with a plastic bag in a backpack hidden in the footwell of the backseat between the two children’s car seats. Approximately $4,000 cash in $50 denominations was found in the front of the vehicle in a small bag. Also found was a bag containing electronic scales and Ziplock bags commonly used to package methamphetamine. This gave rise to the charge of attempted possession of methamphetamine for supply.
Conspiracy to deal methamphetamine with Manuel and Normanton
[12] On 25 December 2021, Mr Robert Manuel, an associate of Mr Westrupp, called him to advise him that he knew of something he “might be interested in” - he had seen a kilogram of methamphetamine for sale for $90,000. The pair discussed at length that they would arrange for this purchase to occur, given Mr Westrupp was then getting a kilogram for $180,000. They discussed telling their associates they purchased it for
$150,000 so they could split the leftover money between them. Mr Westrupp later contacted Mr Manuel to organise to sample the methamphetamine. Mr Westrupp said he would pick it up, and drive it back to his associates for quality control and to obtain money to purchase more of it.
[13] On 27 December 2021, Mr Westrupp called Mr Manuel who advised him that Ms Normanton was the supplier, and had all the methamphetamine in her possession. Later that day Mr Westrupp travelled to Port Waikato and contacted Mr Manuel for directions. Close to midday on 28 December 2021, Mr Westrupp obtained Ms Normanton’s phone number from Mr Manuel, but was unable to get in contact with her. He was later told by Ms Normanton that she would call him, but she never did. Mr Westrupp gave up and drove back to Hawkes Bay.
Failure to carry out obligations in relation to a computer search
[14] Mr Westrupp was asked to provide his pin code for his phone pursuant to s 130 of the Search and Surveillance Act 2012. He declined and when warned he could be charged with an offence under the Act, responded “I’ll take the charge”. This gives rise to the charge of failing to comply with a computer search.
District Court decision
[15] Judge Mackintosh provided a sentence indication for Mr Westrupp on 10 November 2023.5 This indication specified a starting point of nine years – seven years with a two-year uplift for the charges of conspiracy and attempted possession. A 20 per cent reduction was indicated for the guilty plea. In the indication Judge Mackintosh did not specify further discounts such as time on electronically monitored (EM) bail or rehabilitative steps.
[16] The appellant accepted the indication and was sentenced on 2 February 2023 to three years’ imprisonment.
[17] In the sentencing decision Judge Mackintosh adopted the starting point of nine years’ imprisonment. Consistent with the sentence indication, this incorporated a seven-year starting point for the supply of methamphetamine with an uplift on a totality adjusted basis, to nine years, to account for the conspiracy and attempted possession.6
[18] Judge Mackintosh noted Mr Westrupp’s counsel - Mr Phelp’s submission that the authority of Wirihana v R requires the Court to take a flexible approach to sentencing. The Court of Appeal in that case took the view that imposing a term of imprisonment would have a disproportionately severe effect on the defendant.7
[19] However, Her Honour also noted the Crown’s position that the offending here was serious and despite personal mitigating factors, the end sentence should still result in a period of imprisonment.
[20] The Judge then referred to the principles of sentencing and the aggravating and mitigating features relating to the offending itself and to Mr Westrupp’s personal circumstances. In terms of aggravating features the Judge noted the amount of
5 R v Westrupp [2024] NZDC 2153.
6 At [6].
7 Wirihana v R [2020] NZCA 151 at [29].
methamphetamine involved, where Mr Westrupp was in the chain of offending, and the tariff cases that exist for sentencing, namely Zhang v R.8
[21] Judge Mackintosh then noted the mitigating factors, first the 20 per cent for a guilty plea. Her Honour itemised the discounts referring to remorse and refused to give a discount for the fact Mr Westrupp had dependent children. The total discount here was a reduction of 55 per cent of the sentence. Due to time spent on EM bail the sentence was reduced by another 12 months.
[22] Overall, this resulted in an end sentence of three years’ imprisonment. Despite Mr Phelps’ submissions that there is therefore little social utility in sending Mr Westrupp to prison, the Judge was not persuaded that a home detention sentence was appropriate. The Judge emphasised the need for the appellant to face the consequences for such serious offending.
Leave to appeal
[23] Given that the delay in filing the appeal was short, and was explained by the appellant’s counsel, leave is granted. There is no prejudice to the Crown, and it does not oppose an extension of time .
The law
[24] Mr Westrupp has brought his appeal under s 250 of the Criminal Procedure Act 2011. Of note is that an appeal against sentence is an appeal against a discretion, and therefore, must only be allowed if the Court is satisfied that there has been (for any reason) (a) an error in the sentence imposed and (b) a different sentence should be imposed.9 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.10 As articulated in R v Peters:11
As this Court has indicated on many occasions, the issue whether a sentence is manifestly excessive or manifestly inadequate or inappropriate must be
8 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
9 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482.
10 Ripia v R [2011] NZCA 101 at [15].
11 R v Peters CA12/03, 14 May 2003 at [13].
examined in terms of the sentence actually passed rather than the precise process by which it is reached. Thus, if a sentence might be the product of a starting point which is itself manifestly excessive but is in the result ameliorated by allowances made for mitigating factors so as ultimately to be brought to a point of acceptability, this Court will be disinclined to intervene through concern over any particular component. This is very much such a case here.
[25] Section 245 of the Criminal Procedure Act preserves a right of appeal against sentence to the defendant notwithstanding that he pleaded guilty on a sentence indication.
Submissions
For the appellant
[26] Ms Ives submits that the adopted global starting point of nine years has resulted in a sentence that was manifestly excessive. To support this, counsel submits that the only completed methamphetamine transaction related to 400 grams the appellant had sourced for a Mr Taumata in early December 2021. This places the offending within band three of Zhang v R with starting points between six and 12 years.
[27] Ms Ives says that that the role of the appellant was a courier – acting only under directions of those higher up in the Mongrel Mob hierarchy. Ms Ives argues that a courier like Mr Westrupp, especially one who was unsuccessful in an attempt to obtain more methamphetamine in late-December (the conspiracy/attempt charges) should have been assessed as between lesser and significant according to the amended criteria in Berkland v R.12 Overall, Ms Ives submits that the role of the appellant was between lesser and significant in the accepted band of offending. She says further there was ‘double counting’ in the overlap between the conspiracy and attempt charges as Mr Westrupp only obtained a supply of what he thought was methamphetamine after he failed to source the Port Waikato promised drugs.
[28] Ms Ives says Mr Westrupp was only functioning at an operational level acting under direction of others having the advantage of his sick child as an excuse to travel in and out of Auckland during Covid-19 travel restrictions. In support of that
12 Berkland v R [2022] NZSC 143.
submission she points out there was no evidence of financial gains commensurate with the risks being taken given the value of the drugs obtained.
[29] Ms Ives points to case law purporting to support a lower starting point with a global starting point incorporating an uplift of 12 – 18 months for the conspiracy/attempting offending of between seven to eight years.13
[30] In terms of mitigating factors, counsel submits that the Judge erred by failing to give sufficient credit for the various matters that were raised at sentencing as mitigating factors in relation to the appellant. She submits that proper apportionment of discounts, in particular from the reduced starting point as detailed above, would have resulted in a nominal term of imprisonment which would have allowed for a sentence of home detention. Specifically, the Judge erred in declining to reduce the sentence in recognition of the effect of imprisonment on the appellant’s five children. Here, counsel cites the case of Philip v R where a discount of 10 per cent was held by the Supreme Court to be available despite the fact that Philip’s partner was caring for their children.14
[31] Further, of the mitigating factors that did result in a discount, the appellant argues that the 55 per cent discount provided insufficient credit for addiction and rehabilitation. In support of a flexible approach counsel cites Wirihana v R, Keenan-Fry v Police and R v Gear.15 In addition Ms Ives says that there should have been further discounts in relation to the fact he had children with health problems and the remorse which he expressed on a number of occasions. Remorse as a discounting factor was not traversed in the District Court.
13 Philip v R [2022] NZSC 143 where a starting point of six years was upheld. R v Minns [2021] NZHC 638; R v Stone [2021] NZHC 636 where counsel submits starting points below the Zhang bands for relevant amounts of methamphetamine were involved. Counsel also refer to R v Fangupo [2019] NZHC 2896 where a starting point of five years was adopted for importation of 449 grams of methamphetamine; and Wang v R where the Court of Appeal held a six year starting point was appropriate for importation of 430.1 grams of methamphetamine where the defendant played a lesser role.
14 Philips v R above n 13.
15 Wirihana v R above n 7; Keenan-Fry v Police [2021] NZHC 562; and R v Gear [2023] NZHC 432.
[32] In relation to the rehabilitation, Ms Ives points out it was significant that for two years Mr Westrupp had been in a residential programme. He had made great strides and said he would step away from the gang and “take the beating”.
[33] Ms Ives says that a reduction in the starting point and additional discounts for which she argues should bring the end sentence of imprisonment down to one for which home detention might be available.
[34] Ms Ives particularly relied on the comments in R v Gear that home detention was a difficult sentence as New Zealanders appreciated during Covid lockdowns.16 Palmer J in that case sentenced a person said to be at the operational level of methamphetamine dealing to home detention due largely to his achievements in rehabilitation and removing himself from his gang. The Judge noted that placing the defendant in jail would take him back to the gang environment and old lifestyle.
[35] Overall, counsel submits that an appropriate final sentence, bearing in mind all matters advanced in these submissions, would be a sentence of home detention.
For the respondent
[36] The Crown submits that the starting point of nine years was well within range, and in fact could have been higher. A starting point of eight years, rather than seven, could have been justified for the actual supply, and an overall starting point of ten years was available, if the appellant’s role in the serious methamphetamine offending was properly analysed.
[37] The Crown submits that the authorities17 relied upon by the appellant do not demonstrate that the Judge was wrong in her assessment of the appellant’s role. When analysed properly, Mr Blaschke submits that Mr Westrupp’s role was far more serious than some of the decisions upon which he relied. The Crown contends that the appellant’s role was far greater than that of a courier, as he was negotiating prices and was largely autonomous. The Crown submits that:
16 At [23].
17 R v Fangupu above n 13; and Wang v R [2021] NZCA 79.
(a)Counsel for the appellant is incorrect in stating the additional charges are for one unsuccessful attempt to obtain methamphetamine, they were in fact for separate transactions with separate suppliers.
(b)The appellant was operating across two different supply chains separately represented by Mr Kaimona and Mr Taumata. He dealt with them independently.
(c)The appellant advised other associates that he was bringing large quantities down from Auckland. This was reflective of his operation as a wholesaler distinct from his role on behalf of the Wairoa network.
(d)Despite close contact with Mr Kaimoana, the appellant exercised considerable autonomy, including being trusted to negotiate directly with the source suppliers.
(e)Conspiring with Mr Manuel to get some methamphetamine at a lower price and take a margin when sold at a higher price indicates autonomy and a managerial type of role rather than a mere conduit.
(f)The appellant refusing police access to his phone makes it difficult to accept he should be given the benefit of the doubt as to the seriousness of his role, given he deliberately obstructed the investigation.
[38] The Crown consequently argues the Judge did not err in finding the appellant’s role in the offending as being significant and the midlevel of the relevant band, as the appellant not only had a trusted operational role, but also operated independently of that role.
[39] Turning to the personal factors and discounts, the Crown submits that the additional discounts sought by the appellant must be considered against the 55 per cent, plus time on EM bail, the appellant has already received. The Crown argues that the Judge’s discount of 25 per cent for addiction and rehabilitation efforts was generous given the Judge’s well-founded scepticism as to whether the appellant
was actually addicted to methamphetamine at the time of the offending. The Crown submits this discounting cannot realistically be seen as inadequate or in error, with the discounts more than adequate.
[40] The Crown also submits that the Judge’s rejection of an allowance for the impact the appellant’s sentence would have on his children was well founded, particularly given the cynical use of the appellant’s daughter’s medical condition to pass through Covid-19 borders and commit his offending. The Crown says there is no evidence before the Court on appeal that there will be a specific impact on the children, beyond that to be expected. In this case, unlike a number cited by the defence, the children are being well looked after by their respective mothers. The Crown argues there are clear differences between the relevant cases where allowance was made for the impact of a sentence on children, including:
(a)In Whaanga v R,18 a discount was made for a sentence on the margin of home detention for an appellant who was the primary caregiver, and whose imprisonment would result in the mother having to give up her studies and return to Gisborne to care for the children.
(b)In Sweeny v R,19 a discount for impact on children was given, but the Judge refused to convert the sentence to home detention given the seriousness of the offending. The appellant’s partner had died, leaving him as the primary caregiver.
(c)In Campbell v R,20 a small discount of 5 per cent was given to the mother where the father had been serving a long sentence of imprisonment, as the children were able to be cared for by suitable family members.
[41] Finally, the Crown submits the Judge was well placed to assess whether or not home detention was an appropriate overall response to the appellant’s offending, given her considerable experience when dealing with such matters.
18 Whaanga v R [2024] NZCA 29.
19 Sweeny v R [2023] NZCA 417.
20 Campbell v R [2020] NZCA 356.
Analysis
[42] Had the material the appellant brought back from Auckland been as he thought, methamphetamine, the amount involved in the offending would have been considerably higher. However, it is common ground that the appellant’s offending is properly placed within band three of Zhang v R, given the supplied amount was at least 400 grams of methamphetamine. The dispute is around where in that band range of 6 – 12 years the starting point should be.
[43] In my view, the appellant’s role was greater than as a mere courier. His actions demonstrated a degree of autonomy. He may have been reporting to a superior but he was given a substantial amount of latitude to carry out the dealing. He had no compunction in taking steps to implement a profit-making venture with Mr Manuel; which was not ultimately effected due to his inability to make contact with the Port Waikato contact. The appellant expected to profit from the purchases that he was negotiating. The Crown points about the way he was dealing and that he was able to act independently in the negotiation and purchasing roles is borne out by the statement of facts.
[44] In my view there were two distinct deals pursued and one in which actual supply occurred. The other two were the conspiracy with Mr Manuel involving the unsuccessful trip to Port Waikato where Mr Westrupp intended to buy a kilogram of methamphetamine. The second was the attempt involving the trip to Auckland when Mr Westrupp thought he acquired a kilogram of methamphetamine as he told the police. Each of those were separate events and contemplated separate drug deals. I do not accept the defence submission that these are double counted.
[45] This case has factual similarities to Kim v R where the defendant delivered large amounts of methamphetamine for, and collected money on behalf of, his superiors. The sentencing Judge described Mr Kim’s role as an “operational function” within a chain albeit with some awareness of the scale of the operation. The primary motivation was financial.21
21 Kim v R [2023] NZCA 332 at [7].
[46] However the amounts involved in that case were significantly more than here. The Court of Appeal upheld his placement in band five of Zhang which attracts a starting point of between 10 years and life imprisonment.22 The Court noted that Mr Kim was entrusted with large amounts of money and had demonstrated he was a trusted member of the chain. Mr Kim’s rewards were modest in comparison with the size of the operation but he had been involved over a period of time. The Court of Appeal had no difficulty in agreeing that Mr Kim fell within the middle and lower end of the Berkland significant range due to his role despite having no managerial function in the chain.23
[47] Mr Westrupp had greater autonomy and a more managerial role in the operation here than Mr Kim who was described as some who did not exercising significant autonomy, had no decision-making authority and did not manage others.24
[48] The Judge made no error in her assessment that Mr Westrupp was in the middle of the significant range given his role. She recognised that the defendant was obtaining large wholesale quantities on behalf of two different supply chains. The drugs were distributed into the community. Her Honour made the point that Mr Westrupp was advertising that he was bringing the drugs to the locality from Auckland.
[49] The Judge made no error in determining a start point of nine years incorporating a seven year starting point and factoring in the uplift for the other offences.
[50]I now turn to the discounts for the personal factors.
[51] The Judge refers to Mr Westrupp’s expressions of remorse and the fact that he maintained he had withdrawn from the gang since he had been charged with the current offences.25 She noted that for some two years or so he had been disconnected from the gang. This is the period in which he had been in the rehabilitation program.
22 At [7].
23 At [11].
24 At [25].
25 At [9].
[52] The Judge noted that Mr Westrupp had not been using methamphetamine for more than two years and had been living in supported accommodation at the rehabilitation facility in Auckland. She noted this had been a positive experience and Mr Westrupp had done well there with his life being quite different from life at the time of arrest. The Judge recognised the “significant change” and Mr Westrupp’s attempts to address what would appear to be significant issues in his background.
[53] The Judge noted that based on the cultural report that Mr Westrupp had a difficult background with a variety of abuse at times. Nevertheless, he had managed to hold down employment and make his way in the world.26 The Judge noted the alcohol and drug report that indicated Mr Westrupp had a previous severe substance abuse disorder and had worked on that issue. He had been sober for two years.
[54] The Judge recognised the Court should take a flexible approach to sentencing specifically referring to the decision in Wirihana v R.27 In that decision the Court of Appeal noted that a term of imprisonment would have a disproportionately severe effect on the defendant in terms of what he had achieved in rehabilitation. The sentencing there took place three years post-offending.
[55] However, the Judge noted that sentencing involves a balancing of the purposes and principles of sentencing and the aggravating and mitigating factors relating to the offending itself and the defendant’s personal circumstances. She recognised the following mitigating factors:
(a)A 20 per cent discount for guilty plea.
(b)For rehabilitation, including alcohol and drugs and dealing with a number of personal issues accepting that the defendant had made genuine efforts in terms of rehabilitation, gave the defendant a 15 per cent discount.
26 R v Westrupp above n 5, at [11].
27 Wirihana v R above n 7.
(c)Some causative connection between the offending and the use of methamphetamine attracted a discount of 10 per cent for drug-related issues in terms of methamphetamine use.
(d)A further 10 per cent was given for the defendant’s dysfunctional and abusive upbringing and issues and the cultural report.
[56] The discounts must be considered on an overall basis against the seriousness of the offending where a range of discounts are identified. In this case the overall discount applied was 55 per cent, prior to the discount for time spent on EM bail.
[57] While it may be possible to argue there should have been a discrete discount for children, recognising that the appellant had responsibilities as a father and that children are disadvantaged by parental imprisonment, the overall discount was high and no additional discount should be added. The Judge was not in error by rejecting such a discount in this case in any event. Mr Westrupp did not have sole responsibility for the family as many of the other cases in which such a discount is given.
[58] The Judge appropriately recognised that while there is little social utility in sending Mr Westrupp to prison, she was required to recognise the seriousness of the offending. As she put it there are “parameters, there are guidelines, there are rules of society and particularly in relation to serious drug offending”.28 The Judge did not want to undermine what Mr Westrupp had done, which she referred to as impressive, but did not see how society could afford him the opportunity given the type of offending involved. She recognised that he should face the consequences “at the sharp end” which was a term of imprisonment. That approach is in line with the approach recognised in other decisions – that the seriousness of the offending warranted a prison term. For instance, in the context of serious drug dealing where the appellant was seeking a sentence of home detention, the Court of Appeal in McCaslin-Whitehead v R29 commented:
Davison J emphasised the need to stand back and to consider the overall effect where a range of discounts are identified. In this appeal, that approach was criticised. There was no basis for that criticism. There is clear authority for
28 R v Westrupp above n 5, at [29].
29 McCaslin – Whitehead v R [2023] NZCA 259 at [61].
standing back and considering whether when added up discounts have led to a sentence that is not in proportion with the gravity of the offending.
[59] Standing back and looking at the overall discount of 55 per cent for personal factors I consider it was an appropriate discount in the circumstances and no further discounts should be applied.
[60] The Judge made no errors and the sentence was not manifestly excessive for the reasons set out above.
[61]The appeal is dismissed.
Grice J
Solicitors:
Crown Law, Wellington
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