Police v Powell [2016] NZDC 18572 (14 September 2016)

Last Updated: 2 February 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT WHAKATANE

CRI-2016-087-000921 [2016] NZDC 18572

NEW ZEALAND POLICE

Prosecutor v

[GAVIN POWELL]

_Defendant

Hearing:	14 September 2016
Appearances:	Sergeant W Scott for the Prosecutor S Franklin for the Defendant
Judgment:	14 September 2016

_{NOTES OF JUDGE P S ROLLO ON SENTENCING}

[1] [Gavin Powell], you are 47 years of age. You are for sentence today on a charge of burglary and two charges of breach of the Harmful Digital Communications Act 2015 and also a charge of breach of police bail to which you have pleaded guilty through your lawyer, Mr Franklin, today.

[2] The background that is relevant, Mr [Powell], is that you have a very long seated addiction to alcohol. It has dominated and ruled your life for many years to your considerable detriment and that of your family and people with whom you are in contact. The burglary related to events of 30 June 2016. You were living in [street name deleted] in Whakatane. You have gone to your elderly 81 year old neighbour’s

_{address, knocked on the door, said you had some fish for her, asked her for money but}

NEW ZEALAND POLICE v [GAVIN POWELL] [2016] NZDC 18572 [14 September 2016]

then you have walked into her address, taken a half-consumed bottle of cream sherry and then left. This is clearly related to your addiction to alcohol.

[3] The woman felt that her privacy and the sanctity of her home and her property had been violated by your actions which were a shock to her. As you yourself concede, Mr [Powell], the two of you had been friends. You had assisted her with some fish, I am told, in the past and generally been a reasonable neighbour to her although you do have this history, it seems, of tapping up your neighbours for $20 apiece to fuel your alcohol consumption from time to time. It was a distressing circumstance for her and whilst it was founded on your addiction for alcohol, I note that you have a number of previous convictions for dishonesty which fit within the same general category offending.

[4] With the further two charges relating to the Harmful Digital Communications Act, they relate to a former a relationship you had with that female complainant. There were some intimate photographs taken. When the relationship came to an end between

1 June and 29 June this year, it would seem that you have digitally posted these on Facebook in a deliberate act to embarrass her or compromise her position. That was clearly wrong, Mr [Powell], you were upset at the breakup of the relationship but they were photographs given in an intimate moment which should have been sacred to the two of you at the time and place, not for publication in a scurrilous way to others, as in the way in which you acted. It was, of course, very harmful and humiliating in the circumstances for the complainant and your actions in doing so were not just straightforward, you went to some steps to try and conceal the circumstances and the origins of the photographs. That is an aggravating circumstance, in a way.

[5] The pre-sentence report which is before me, Mr [Powell], details the extent of your alcohol addiction and the very adverse effect it has not only had on your life but your parents’, both of whom support you in Court today and also others around you as I have referred to. Your parents have previously written to the Court emphasising their support for you over the years and feelings of, at best, one might call it disappointment that you have not responded their endeavours to bring you out of this alcoholic state that you are in and the practical effect for them has been very serious.

They will no doubt feel very disappointed in the way that your life has turned out and their lives as your parents as well.

[6] So it seems to me, Mr [Powell], you owe them a considerable debt for the efforts which they have made which you would expect of any parents but you would also expect some to repay that sort of kindness and love and affection by better effort than you would put in. Hope remains perhaps, Mr [Powell], that you might still have time to change in your life, live up to the potential which you have not only as a person within the community but as a son to your parents.

[7] The recommendation in the pre-sentence report is for a sentence of imprisonment. Home detention is not a viable outcome in your case because, as

Mr Franklin realistically said, if you were released on home detention you would be back drinking within the bat of an eye, effectively, to your detriment and had not complied with the sentence. You have had a period in custody which has been beneficial for your health which you acknowledge through Mr Franklin. He makes the point that you look healthier, you sound healthier, you have better clarity of thought, you put on some weight so more of the same might be to your betterment at this time. Certainly, a sentence less than imprisonment at this stage, given that there is no fully residential rehabilitative course available to you to address your alcoholism, therefore I am going to deal with these matters on the following basis.

[8] I consider the appropriate starting point for the burglary, given the unusual circumstances, it is not the same as many burglaries, would be one of six months’ imprisonment. There should be an uplift of two months to take into account your unrelated but still prior dishonesty offending. As to the two harmful digital communication charges, they have a two year maximum. I consider that a starting point of six months is warranted for that offending, have regard to the intention which motivated your actions and the aggravating circumstance of the way you went about it that I have referred to. There should be an uplift of one month, in my view, to take into account that you have relevant previous convictions of a antisocial type, including some minor violence but also misuse of a telephone, which is a similar sort of offence. I include within that uplift the fact that you have the breach of bail charge. So that would be a top point of 15 months’ imprisonment. I give you four months’ discount

for the mitigating factors that have been referred to. I acknowledge your letter you have written to me which is partly an explanation of your circumstances and partly a defence of what you say happened. I have taken that into account, Mr [Powell].

[9] On the charge of burglary, you will be convicted and sentenced to six months’ imprisonment. On the two charges of breach of the Harmful Digital Communications Act, you are convicted and sentenced to five months, cumulative on the six months I have imposed. That is a total of 11 months’ imprisonment, of which you will serve one half, which will take into account the time you have served on remand. I grant you leave to apply for a substituted sentence but only to a residential rehabilitative programme such as Tai Aroha or a Bridge Programme, something of that nature to address your alcohol addiction. Otherwise I impose standard and special release conditions for a period of six months after sentence expiry date, being those conditions referred to in the pre-sentence report which are focussed on assisting you with rehabilitation.

[10] There is a request from the female complainant under the Harmful Digital Communications Act prosecutions for a protection order. I am satisfied that there is jurisdiction for such an order and that such an order is necessary for her protection from further psychological harassment or abuse. I am satisfied that this is another enactment that the definition of violence in s 123A Sentencing Act 2002 is met by the definition of violence under s 3(2) Domestic Violence Act 1995 itself and that there is necessity, as I have said, for such an order. Therefore, I make an order under the Domestic Violence Act against you, in favour of the female complainant. I direct you attend a Living Without Violence course as directed by the registrar of the Family Court. A copy of that order will be served on you, Mr [Powell], and the registrar will explain the force and effect of that order for the future.

[11] The remaining charge is one of breach of police bail. I have considered the modest criminality involved in that. Mr Franklin says it was due to your misuse of alcohol that you failed to attend Court as required. On that charge, having regard to the penalties otherwise imposed, you are convicted and discharged.

[12] So to recap, Mr [Powell], 11 months’ imprisonment with special release conditions for six months thereafter and the protection order made.

[13] The final point concerns the bottle of Cream Sherry. I direct that you pay the reparation figure of $20 to your neighbour, to be paid in one lump sum within 14 days of your release from imprisonment.

[14] There will be order for destruction.

P S Rollo

District Court Judge