Police v Powhiro [2017] NZDC 9457 (9 May 2017)

Last Updated: 10 October 2017

EDITORIAL NOTE: SOME NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED

IN THE DISTRICT COURT AT HAMILTON

CRI-2015-024-000562 [2017] NZDC 9457

NEW ZEALAND POLICE

Prosecutor

v

BRIAN WATENE POWHIRO

Defendant

Hearing: 9 May 2017

Appearances: Sergeant L McMaster for the Prosecutor

S Lawrey for the Defendant

Judgment: 9 May 2017

_{NOTES OF JUDGE G S COLLIN ON SENTENCING}

[1] Mr Brian Powhiro appears today for sentence on a large number of charges. These relate to offending between 2 March 2015 and 14 February 2017. The offending commenced on 2 March 2015. Mr Powhiro received a chainsaw and leaf blower, which were stolen.

[2] On 24 March 2015 Mr Powhiro entered a building without authority with intent to commit an imprisonable offence and on 16 April 2015 entered the premises of [the victim car dealership] in Christchurch again with the intent to commit an imprisonable offence. On 21 April 2015 Mr Powhiro was arrested. When he was arrested he had in his possession cannabis and a pipe for the purposes of smoking cannabis. All of those offences occurred while Mr Powhiro was living in

_{Christchurch.}

NEW ZEALAND POLICE v BRIAN WATENE POWHIRO [2017] NZDC 9457 [9 May 2017]

[3] Initially he was declined bail but bail was granted to him on 25 May 2015 with conditions that he resides in Huntly. Following his arrival Mr Powhiro continued to offend and appears on a second raft of offending whilst living in Huntly comprising the theft of a Mitsubishi Lancer motor vehicle on 13 September 2015 and then much later a burglary at [the victim sports club] and finally escaping a constable which occurred on 14 February 2017.

[4] It is of note that Mr Powhiro appeared in front of me on 15 January 2016. At that time I continued his bail and required him to attend at the Huntly Court again on

26 February 2016. He failed to do so. As a consequence of his failures he spent slightly in excess of a year at large during which time an active warrant for his arrest was in place. This was issued on 26 February 2016.

[5] Mr Powhiro came again to the attention of the police at which time he is alleged to have committed an assault against [the victim]. I have received a copy of the summary of facts for that assault but note that he has pleaded not guilty and that that matter remains as yet unresolved. The escaping, however, arose out of that incident.

[6] It is difficult in some ways to establish a lead offence. The burglaries and the motor vehicle charges for [the victim car dealership] are all similar in nature and in my view are equally capable of being the lead offence. In terms of sentencing it is my intention to simply deal with them as one and impose a sentence which reflects the totality of the offending in relation to them all.

[7] The purpose of sentencing on this occasion is to hold you accountable, to denounce your conduct and to protect the community from further offending. Your counsel realistically agrees that there is no other sentence available than a term of imprisonment.

[8] This is a case of multiple burglaries some of which created loss, some of which occurred whilst you were on bail. There was a degree of premeditation in relation to the offending. They are aggravated by the fact that in relation to the latter offences, namely those that occurred whilst you were residing at Huntly, you were

on bail or latterly at large as a consequence of failing to appear and a warrant being outstanding for your arrest.

[9] In terms of mitigation you pleaded guilty to each of the two charges, however, in determining the credit that needs to be given to you I must also take into account that despite having pleaded guilty there have been significant delays in dealing with this matter as a consequence of you failing to appear in Court when you ought to have done so and being at large over a lengthy period of time. This has resulted in significant delay in resolving the issues particularly those relating to the Christchurch offending.

[10] Although you do not have what might be described as an extensive list of previous convictions, nevertheless you do have a criminal history which includes failure to answer bail, offences relating to driving and cannabis and dishonesty offending particularly relating to motor vehicles and one burglary from 2005. This series of offending would seem to suggest an escalation in your offending, no doubt as a consequence of your drug addictions which you now acknowledge.

[11] In my view the starting point having regard to the totality of your offending taking into account the multiple offences, your failure to appear, your previous record and your offending whilst on bail is a term of 30 months’ imprisonment. A modest discount can be given to you in my view, only to reflect your early guilty pleas in relation to the Huntly burglary, with that discount being assessed at three months. I do not consider that a discount is justifiable beyond that on the basis that delays in sentencing have occurred as a consequence of your failures to appear.

[12] On that basis I now sentence you as follows:

(a) On each of the burglary offences, which are CRN endings 4570, 6966 and 146, you are sentenced to 27 months imprisonment all to be served concurrently.

(b) In relation to the receiving of a chainsaw, a term of six months, to be served concurrently.

(c) In relation to the drug offences one month also to be served concurrently.

(d) In respect of the theft of the Mitsubishi Lancer motor vehicle also one month to be served concurrently.

(e) Escaping from [the Constable] a term of six months to be served concurrently.

(f) In respect of your failure to complete community work, the sentence of community work is cancelled and you are sentenced to one month’s imprisonment on the breach of community work.

(g) I note that you have substantial fines outstanding which total $5546.

Your fines will be remitted. For clarity sake no reparation amount outstanding will be remitted.

[13] Your total sentence is, therefore, one of 27 months’ imprisonment.

G S Collin

District Court Judge