New Zealand Police v Robinson [2018] NZDC 16611 (7 August 2018)

Last Updated: 22 June 2019

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

IN THE DISTRICT COURT AT PORIRUA

CRI-2017-091-002308 [2018] NZDC 16611

NEW ZEALAND POLICE

Prosecutor

v

PETER JORDAN ROBINSON

_Defendant

Hearing:	7 August 2018
Appearances:	Sergeant P Macky for the Prosecutor P Surridge for the Defendant
Judgment:	7 August 2018

_{NOTES OF JUDGE J A R JOHNSTON ON SENTENCING}

[1] Peter Robinson is 22 years old. He appears today for sentence having pleaded guilty to a total of 10 charges. Those include a possession of cannabis for supply charge. That charge carries with it a maximum penalty of eight years’ imprisonment.

[2] There are a number of firearms charges for possession of either a rifle or a shotgun. Each of those charges carries with them maximum penalties of four years’ imprisonment on each.

[3] There is a possession of ammunition charge, again a maximum penalty of four years’ imprisonment.

NEW ZEALAND POLICE v PETER JORDAN ROBINSON [2018] NZDC 1661 [7 August 2018]

[4] There are two psycho-active substance charges, one for possession of psychoactive substances with intent to sell, maximum penalty two years’ imprisonment.

[5] And a charge of manufac turing a psychoactive substance, again a maximum penalty of two years’ imprisonment.

[6] Last there is a wilful damage charge of the electronic monitored bail bracelet when he was granted bail at an earlier appearance. The maximum penalty for that charge is three months’ imprisonment and/or a fine of up to $2000.

[7] I note reparation of $29 is sought on that charge and I order that now.

[8] The relevant facts are set out in a couple of summary of facts documents which spell out the nature of the charges.

[9] The summaries show that on the 8th of September last year police executed four simultaneous search warrants at [address 1], [address 2], [address 3], and [address 4] here in Porirua.

[10] The defendant occupied a bedroom at the address at [address 4].

[11] On searching his bedroom police located a Ruger .22 calibre rifle, a 303 calibre rifle, a pump action shotgun with a pistol grip, a 12-gauge semi-automatic shotgun, and a sawn-off .22 calibre shotgun. Two loaded 25 shot Ruger .22 rifle magazines were also located.

[12] A large amount of ammunition including 10 12-gauge shotgun cartridges, 48

.22 copper plated hollow point bullets, 50 9 millimetre bullets, and a box of 525 .22 long rifle bullets were located in the defendant’s bedroom.

[13] Also located in the defendant’s bedroom was 2.18 kilograms of synthetic cannabis, 255 grams of cannabinoid powder, 458 grams of cannabis, 26, 16 ounce bags

containing carbon sifted damiana leaf, several sets of scales, a pill press capsule fille r, large amounts of zip-lock bags of varying sizes, a blue lock box with $1220 in cash inside and $186,490.10 in cash bundled into $50 and $20 lots contained in a suitcase.

[14] The defendant’s partner and two children reside at [address 3], and the defendant also occupied the address at various times, including around the time of the offending as outlined.

[15] At [address 3] $240 in cash was located in an envelope in the main bedroom and $410 in cash was located in a plastic bag secreted underneath the bed. A plastic bag containing 13 tinnies of cannabis wrapped in tinfoil and five tinnies in small plastic bags was also located underneath the bed. Cannabis plant material was also located throughout the house. In total 154 grams of cannabis was located along with

114 grams of cannabis seeds.

[16] $160 in cash, all in $20 denominations, was also found inside a box in the lounge. Scales, resealable bags and two bottles of acetone were also located at the address.

[17] On the day the search warrants were executed the defendant was located at [address 2]. Upon entry into the address the defendant snapped a Huawei cellphone which police believed belonged to him and would have showed evidence of his offending.

[18] A bag was located at the address which contained $5020.20 in cash. It also contained identification belonging to the defendant.

[19] 3.16 grams of cannabis, 0.65 grams of synthetic cannabis and a bottle of acetone was located at the address.

[20] The defendant is also closely associated to the fourth address, that is [address

1]. A search warrant executed at that address located 36 grams of synthetic cannabis, six grams of cannabis and 28 grams of cannabinoid powder.

[21] The total amount of cash seized from the three properties was $193,540.30. At the time he was spoken to he refused to comment and provided no explanation to police.

[22] As far as the wilful damage charge is concerned, at about 12.39 am on Sunday

10 December the defendant was on electronically monitored bail for previous offending and had an electronic monitored bracelet attached to his ankle. He cut the bracelet from his leg and absconded from the electronic monitored bail address. The bracelet required a new strapper as a result of being cut. It is the property of the Department of Corrections and was valued at $29.

[23] Mr Robinson has been the subject of a sentence indication given by me back in April of this year. That sentence indication took into account comprehens ive submissions filed by both the police and by Mr Surridge. That sentence ind ication led to an end point sentence of 30 months’ imprisonment. That was accepted by Mr Robinson and guilty pleas were entered to all charges.

[24] There have been remands to enable submissions to be made and further submissions have been received from Mr Surridge.

[25] The focus of those submissions has been in and around whether or not there should be a further discount regarding the issue of forfeiture. I note that the Crown have commenced Civil proceedings in the High Court, seeking an application for forfeiture in respect of the defendant and that application is the subject of timetables.

[26] The timetable provided by Mr Surridge shows that the defendant has until

5.00 pm on 3 September to file and serve a notice of opposition, if any, to the forfeit ure orders that are being sought.

[27] Mr Surridge has today stated and provided in writing what appears to be a document signed by Mr Robinson, stating that he hereby transfers, signs, or makes over, or transfers, any of his right, title and interest in any sum of cash, circa $194,000, and held by the police as comprised in the proceedings that the police have bought for forfeiture. That document is addressed to the Registrar of the District Court, Porirua,

and to the Registrar of the High Court. Mr Surridge says that shows the intention of

Mr Robinson and his whānau not to dispute the forfeiture proceedings.

[28] Mr Surridge’s submission is that some credit should be given to Mr Robinson for the position taken by him in respect of forfeiture, and that prior to the forfeit ure proceedings, the situation may well have amounted to some exceptional circumstanc es where some credit could be given.

[29] I have heard from the police in that regard. They oppose any further discount being given to the sentence indicated by me and particularly in respect of forfeiture. The police position is that the significant sums involved were clearly the proceeds of crime and therefore, would have been subject to forfeiture in any event, and that no credit should be given.

[30] I have also considered and referred Mr Surridge to the Court of Appeal decision of Henderson v R1 a 2017 decision and in particular I have referred him to paragraphs 37, 40 and 42. In particular at paragraph 37 where the Court in considering the defendant’s arguments noted the case of Commissioner of Police v Skinner2, and that:

The confiscation of instruments of crime may be regarded as a penalty, but the confiscation of the proceeds of crime involve the confiscation of something the defendant should not have obtained in the first place.

[31] I continue quoting:

The order forces the defendant to disgorge ill-gotten gains which logic a lly renders it of little or no relevance to sentencing. It is not punitive in the giving of a discount would mean a windfall. Instrument forfeitures orders are, however, punitive because they relate to the forfeiture of legitimate assets that have been used for an illegitimate purpose.

[32] And further, at paragraph 42, the Court of Appeal said:

Having regard to all those factors we conclude that as a general rule civil forfeiture orders do not warrant a discount in sentencing. Significantly, the same approach was taken by this Court in R v Brough3 when considering the previous legislative scheme under the proceeds of Crimes Act 1991.

1 Henderson v R [2017] NZCA 605

2 _{C ommissioner of Police v Skinner [2013] NZHC 2956}

3 _{R v Brough [1995] 1 NZLR 419, (1995) 12 CRNZ 634}

[33] The Court at paragraph 43 went on to say:

We have used the phrase “as a general rule” advisedly. That is because in Brough this Court acknowledged that credit might be given in sentencing on account of forfeiture in exceptional circumstances.

[34] In the case of Henderson, the Court determined that it was not necessary for them to consider the exceptional circumstances exception because the facts in that case of Henderson were not exceptional.

[35] In looking at the material before me I am also of the view that there is nothing exceptional that has been raised in this case to warrant there being a further discount considered.

[36] Accordingly, the sentencing indication that I gave back in April still stands. A

copy of that sentencing indication will be appended to the sentencing notes.

[37] Weighing all factors up, including the matters that were covered in the sentencing indication, I am satisfied that on the basis of the applicable authorities and statutory factors that in these circumstances a sentence of imprisonment is required, and that the purposes for which this sentence is being imposed cannot be achieved by any less restrictive sentence or combination of other sentences.

[38] The sentencing indication given showed the starting point that was arrived at on the lead charge of the possession of cannabis for supply is 18 months imprisonme nt.

[39] The uplifts required for the firearms charges and the other drugs charges, and for the intentional damage charge, led to a total of 43 months’ imprisonment. That was is reduced by three months for totality to 40 months’ imprisonment.

[40] Two months is added by way of uplift for your relevant previous convictio ns which takes the sentence to 42 months’ imprisonment.

[41] With a 25 percent discount for guilty pleas, that reduces the sentence to 31.5 months’ imprisonment, and with reductions for the time that he was on strict electronic

monitored bail reduced the overall position to an end point sentence of 30 months’

imprisonment.

[42] Accordingly, you are convicted on each charge and these are the sentences.

[43] On the possession of cannabis for supply charge you are convicted and sentenced to imprisonment for 30 months.

[44] On the firearms charges for the rifles and shotguns, sentenced to 30 months’

imprisonment on each charge.

[45] On the possession of ammunition charge, sentenced to 30 months’

imprisonment.

[46] On the possession of the pistol, sentenced to 15 months’ imprisonment.

[47] On the possession of psychoactive substances charge, sentenced to 12 months’

imprisonment.

[48] On the manufacturing psychoactive substances charge, sentenced to 12 months’ imprisonment.

[49] On the Intentional damage charge, you are sentenced to one month imprisonment.

[50] I order destruction of all of the exhibits, that is the drugs and the firearm exhibits on each charge as appropriate.

[51] All of those sentences are concurrent, which means a total sentence of

30 months’ imprisonment.

J A R Johnston

District Court Judge

Attachment: Sentencing Indication Notes dated 24 April 2018

NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT

2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE

http://legislation.govt.nz/act/public/2011/0081/latest/DLM3865734.html

IN THE DIS TRICT COURT CRI-2017 -091-002308

AT PORIRUA

NEW ZEALAND POLICE

Prosecutor

v

_{PETER JORDAN ROBINSON}

_Defendant

Date: 24 April 2018

Appearances: Sergeant C Stewart for the Prosecutor

P Surridge for the Defendant

_{NOTES OF JUDGE J A R JOHNSTON ON SENTENCING INDICATION}

[1] Peter Robinson appears today for a sentencing indication in respect of a total of nine charges.

[2] Those charges include possession of cannabis for supply, which carries a maximum penalty of eight years’ imprisonment. There are firearms charges: two possession of a rifle charges; two possession of shotgun charges; and one possession of ammunition charge. Each of those carries a maximum penalty of four years’ imprisonment each. There is also a possession of a pistol charge carrying a maximum penalty of three years’ imprisonment. There are also two other drug charges : possession of a psychoactive substance with intent to sell, carrying a maximum penalty of two years’ imprisonment; and manufacturing a psychoactive substance without a licence, also carrying a maximum penalty of two years’ imprisonme nt. There is also an intentional damage of an electronic monitored bail bracelet charge that he faces. That carries a maximum penalty of seven years’ imprisonment under the Crimes Act 1961 but for the purposes of a sentencing indication that will be

regarded as a Summary Offences Act 1981 wilful damage charge with a maximum

penalty of three month’s imprisonment and/or a fine of up to $2000.

[3] I was initially asked in submissions by Mr Surridge not to include the possession of cannabis for supply charge as part of a sentencing indication. After having received submissions from both parties it was my view that the omission of the cannabis for supply charge for a sentencing indication would distort the sentencing indication process. The sentencing indication therefore proceeds in respect of all the charges I have referred to.

[4] The sentencing indication, based upon consideration of the submiss io ns received is as follows:

[5] The starting point for the lead possession of cannabis for supply charge is 18

months’ imprisonment.

[6] In my view, an uplift for the firearms charges of nine months’ imprisonme nt

would be appropriate.

[7] There should also be a further uplift of 15 months imprisonment for the two psychoactive substance charges and an additional one month uplift for the ameded intentional damage charge.

[8] That gets to an adjusted starting point for the purposes of the sentencing

indication of 43 months’ imprisonment.

[9] Looking at totality, I would reduce that by three months to 40 months’

imprisonment.

[10] There should also be an uplift of two months’ imprisonment for the defendant’s

relevant previous convictions.

[11] If guilty pleas were to be entered following this sentencing indication you would be entitled to a discount of 25 percent which equates to 10.5 months, with a

further discount of one month for the time that he was on restrictive electronic monitored bail.

[12] That gets to a total of 30.5 months, which I would be prepared to round down

in his favour to an end point sentence of 30 months’ imprisonment.

[13] That is my sentencing indication.

[14] I note that Mr Surridge has now discussed the sentencing indication with

Mr Robinson and that the sentencing indication has been accepted.

[15] Guilty pleas have now been entered to all charges and the defendant is convicted on all charges and remanded in custody to 4 July 2018 at 2.15 pm, for a pre-sentence report with appendices.

[16] Mr Surridge will file and serve sentencing submissions by 26 June 2018. Those will obviously raise any other mitigating factors and deal with the issue of the forfeiture of the cash seized.

[17] I would be grateful if the police could also file and serve sentencing submissions on the forfeiture issue by 29 June 2018.

J A R Johnston

District Court Judge