ASPINALL-SU’A v POLICE [2020] NZHC 3022

ASPINALL-SU'A v POLICE [2020] NZHC 3022 [16 November 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-387[2020] NZHC 3022BETWEEN CHRISTIAN ASPINALL-SU'AAppellantAND NEW ZEALAND POLICERespondentHearing: 16 November 2020Appearances: H G de Groot for the AppellantH Benson-Pope for the RespondentJudgment: 16 November 2020ORAL JUDGMENT OF GAULT JSolicitors / Counsel:Mr H G de Groot, Barrister, AucklandMr H Benson-Pope and Mr J C Toebes, Kayes Fletcher Walker, Office of the Crown Solicitor,Manukau City[1] Mr Aspinall-Su'a appeals his sentence of two years and two months'imprisonment imposed by Judge D J Harvey in the District Court at Manukau on17 August 2020.1[2] Mr Aspinall-Su'a pleaded guilty to the following charges on 19 June 2020:unlawful possession of a firearm (x 4);2 receiving (over $1,000);3 unlawful possessionof an explosive;4 unlawful possession of ammunition;5 and possession of cannabis.6The offending[3] On 30 January 2020, Mr Aspinall-Su'a was sentenced to 18 months' intensivesupervision, on standard and special conditions. He had committed a number ofoffences between 6 June and 20 July 2019, including presenting a firearm at anotherperson, unlawful possession of ammunition and possession of cannabis andmethamphetamine. At the time of the offending related to the current appeal,Mr Aspinall-Su'a remained subject to that sentence.February offending[4] On 26 January 2020, a white VW motor vehicle with the number plate JKT762was stolen.[5] On 13 February 2020, Police observed a VW vehicle bearing registration platesWR9968 in Māngere. Mr Aspinall-Su'a was the driver. Police inquiries revealed theregistration number did not match the VW vehicle and the true registration wasJKT762.[6] Police searched the vehicle and found one sawn down single barrel shotgun,one shotgun pistol and approximately 24 rounds of ammunition for the shotgun.1 Police v Aspinall-Su'a [2020] NZDC 16448.2 Arms Act 1983, s 45(1). Maximum penalty is a $5,000 fine and/or four years' imprisonment.3 Crimes Act 1961, ss 246 and 247(a). Maximum penalty is seven years' imprisonment.4 Arms Act 1983, s 45(1). Maximum penalty is a $5,000 fine and/or four years' imprisonment.5 Section 51. Maximum penalty is three years' imprisonment and/or a fine not exceeding $4,000.6 Misuse of Drugs Act 1975, ss 7(1)(a) and (2)(b). Maximum penalty is three months' imprisonmentand/or a fine not exceeding $500.[7] After his arrest, Mr Aspinall-Su'a admitted he had bought the vehicle viaFacebook for $2,500. He denied knowledge of the firearms and ammunition.Mr Aspinall-Su'a was charged on 14 February with receiving, unlawful possession ofa firearm and unlawful possession of an explosive. He was admitted to electronicallymonitored bail (EM bail) on 6 March 2020.March offending[8] On 7 March 2020, the day after being released on EM bail, Mr Aspinall-Su'aabsconded.[9] On 20 March 2020, Police located and arrested Mr Aspinall-Su'a. He was athis sister's address in Manurewa, where he had been sleeping on her couch. When thePolice arrived, Mr Aspinall-Su'a attempted to conceal himself underneath a blanketon the couch. At his feet was a black backpack containing several personal effects.[10] The bag was open, and part of a firearm was visible. Police searched thebackpack and found a blank firing pistol which had been modified to fire live rounds.The magazine was loaded with one round. 1.36 grams of dried cannabis in a plasticsnap lock bag was also found in the bag.[11] Under the couch Mr Aspinall-Su'a had been sleeping on was a black laptop-type case. It contained a sawn-off, double-barrelled side-by-side shotgun. It wasdivided in two halves and able to be easily assembled back together. Accompanyingthe shotgun were twelve twelve-gauge shotgun shells.[12] Mr Aspinall-Su'a denied knowledge of all these items.[13] On 20 March, Mr Aspinall-Su'a was charged with possession of cannabis,unlawful possession of a firearm (x 2) and unlawful possession of ammunition.District Court decision[14] The Judge noted that Mr Aspinall-Su'a must have known the VW vehicle was"hot" when he purchased it.7 He did not comment on the receiving charge again.[15] The Judge recorded Mr Aspinall-Su'a's previous convictions for drug andfirearm-related offending. He endorsed counsel for the respondent's observation thatfirearm offending in South Auckland is a growing problem and firearms offendingcarries with it enormous potential for social harm.8 The Judge observed the strikingsimilarities between the February and March offending.9 He was particularlyconcerned by the charge relating to the discovery of the sawn-off shotgun andcommented that a weapon of that sort "can only be used for criminal purposes".10[16] However, the Judge accepted there was no suggestion Mr Aspinall-Su'a'soffending was gang-related. The Judge also accepted that given the amount ofcannabis found was relatively small, there was no suggestion of drug-dealing.He convicted and discharged Mr Aspinall-Su'a on that charge.[17] Counsel for the respondent suggested a starting point for the firearms offencesof three years' imprisonment. Defence counsel suggested a starting point of 18months' imprisonment. The Judge adopted a starting point of 22 months'imprisonment for the March firearms offences and uplifted this by 12 months to reflectthe February offending. This gave an adjusted starting point of 34 months'imprisonment.[18] The Judge then applied a discount of 25 per cent to reflect Mr Aspinall-Su'a'sguilty plea, which came at the earliest opportunity. This brought the sentence downto 25 ½ months' imprisonment. But the Judge considered an uplift was necessary,as the March offending occurred while Mr Aspinall-Su'a was on EM bail. An upliftof one month was applied, resulting in a sentence of 26 ½ months' imprisonment.7 Police v Aspinall-Su'a [2020] NZDC 16448 at [2].8 At [3].9 At [6].10 At [7].[19] Mr Aspinall-Su'a's counsel had suggested a cultural background discount wasappropriate. The Judge declined to allow such a discount, stating that:11 much of the information that is contained in [the cultural or background]report is well-known and quite common within the South Auckland area.Familial deprivation, lack of boundaries, lack of education, and matters of thatnature. I do not see anything in that background report that is directlycausative of the very serious offending involving firearms [20] Mr Aspinall-Su'a was 24 years' old at the time of the offending. The Judgeconsidered whether a youth discount was appropriate and noted a five per centdiscount would bring the sentence within the realm of home detention. However, heconcluded that Mr Aspinall-Su'a was at the "fringe" of the age range which usuallyattracts a youth discount and that Mr Aspinall-Su'a could "only rely on youth'sstupidity for so long".12 The Judge did not believe a youth discount was appropriateor justified.[21] The Judge imposed an end sentence of 26 months' imprisonment (roundingdown from 26 and a half months) in respect of all charges, with the exception of thepossession of cannabis charge for which Mr Aspinall-Su'a was convicted anddischarged.Approach on appeal[22] Under the Criminal Procedure Act 2011, the Court must allow the appeal ifsatisfied that for any reason there is an error in the sentence imposed on convictionand a different sentence should be imposed.13 Otherwise, the Court must dismiss theappeal.14[23] In deciding whether to impose a different sentence, the Court does not simplysubstitute its own view for that of the original sentencing Judge.15 Rather, it must be11 At [13].12 At [14].13 Section 250(2).14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].15 Te Aho v R [2013] NZCA 47 at [30]; and Tutakangahau v R at [30]-[35].shown that the sentence is manifestly excessive or wrong in principle.16 The focus ison the end result rather than the process by which the sentence was reached.17Section 27 report[24] As the appeal largely concerns whether a cultural discount ought to have beengiven, it is convenient to set out relevant aspects of that report here.[25] Ms Shelley Turner prepared a report pursuant to s 27 of the Sentencing Act2002 for the earlier sentencing (which also concerned drug possession and unlawfulpossession of a firearm). It is dated 29 January 2020. Ms Turner interviewedMr Aspinall-Su'a on 29 January 2020 and spoke with his older sister too.[26] She considered the following factors were present in Mr Aspinall-Su'a'sbackground and were indicative of social, cultural, economic and/or systemicdeprivation: cultural disconnectedness from Te Ao Māori; whānau dysfunction; familyviolence; limited education; and alcohol and drugs.[27] Mr Aspinall-Su'a identifies as Māori and Samoan. While he was raisedaccording to fa'a Samoa (the Samoan way) and identifies more strongly with hisSamoan heritage, his mother is of Māori descent. Mr Aspinall-Su'a was raisedpredominantly in a sole parent environment by his mother, who appears to suffer fromPTSD. His upbringing and background has been quite transient – he lived inHamilton, Auckland, Thames and Wellington. He lived with an aunt for a few yearsand enjoyed stability during that time.[28] Ms Turner records that Mr Aspinall-Su'a has been "to-ing and fro-ing"between Māngere and Thames. His last "stint" in Thames was positive and he wasemployed at the timber mill. However, his sister reports that he suffered verbal abusefrom his mother during this time. In addition, Mr Aspinall-Su'a's sister referred tosignificant verbal abuse that the siblings suffered from their mother during theirupbringing. This appears consistent with Ms Turner's brief interaction withMr Aspinall-Su'a's mother. Both Mr Aspinall-Su'a and his sister also report suffering16 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33]-[34].17 At [36].some physical violence in their childhood. In addition, there is a suggestion that theirmother placed pressure on both siblings to support her financially.[29] Mr Aspinall-Su'a admitted to Ms Turner he has a methamphetamine addictionwhich has developed in recent years. He was introduced to methamphetamine by hisfather, around the age of 21 or 22 years old. Mr Aspinall-Su'a last saw his father inApril 2019.[30] Ms Turner characterised Mr Aspinall-Su'a's life as being "marred withdeprivation". His transient lifestyle is said to have affected his ability to transition toadulthood with a sense of self-worth, power and authority. He presented as someonewith a lot of mamae (hurt and shame), with his self-worth being violated by years ofemotional abuse, transience and turmoil. Ms Turner believed this in turn affected howhe presented himself – he was softly spoken and did not speak with confidence.[31] More positively, Ms Turner observed the strong connection Mr Aspinall-Su'ahas with his older sister. She supports him and recognises that Mr Aspinall-Su'a mustaddress his drug issues. She also considers family support and employment to becrucial factors in Mr Aspinall-Su'a's rehabilitation. Ms Turner also noted Mr Aspinall-Su'a would benefit from reconnecting with both his Māori and Samoan heritage.Submissions[32] Mr de Groot, counsel for Mr Aspinall-Su'a, submits the Judge erred in failingto allow an adjustment for the matters discussed in the s 27 report. He considers adiscount of 25 per cent ought to have been given. Mr de Groot submits the sentenceimposed ought to be substituted with a sentence of 17 ½ months' imprisonment, withleave reserved to apply for home detention.[33] Mr de Groot submits Mr Aspinall-Su'a's offending did not occur in a vacuumand refers to Ms Turner's findings. Mr de Groot also refers to factors discussed inMs Turner's report which may serve to "insulate" Mr Aspinall-Su'a in the future.He has a close relationship with his half-sister, who is described as a stabilising andsupportive presence in his life. He has also done well in employment, despite havingno formal qualifications.[34] Mr de Groot describes the Judge's discussion of a cultural discount (as quotedabove at [19]) as being "reductive". He refers to the recent decision of the Court ofAppeal in Carr v R, where the Court observed that it is not appropriate to "reason thatbecause other people with disadvantaged backgrounds do not offend, legitimatereferences to deprivation affecting the life of an individual offending can be put onone side".18 He submits the Judge erred in reasoning that as issues such as familialdeprivation are "quite common" in the South Auckland area, those issues were notworthy of recognition.[35] Mr de Groot instead submits the offending is properly viewed as symptomaticof a chaotic, insecure and unstructured lifestyle, conditioned by the use ofmethamphetamine. While he acknowledges that drawing a causative link betweens 27 factors and the offending can be fraught, he submits a link can readily be inferredbetween the disadvantages Mr Aspinall-Su'a faced as a child and his offending. Inparticular, Mr Aspinall-Su'a's fears for his safety are said to be related to his firearmoffending. Mr de Groot submits a more direct nexus can be inferred betweenMr Aspinall-Su'a's background and his drug-related offending, given he wasintroduced to methamphetamine by his father and has been addicted since.[36] Mr de Groot accepts the global starting point of 35 months' imprisonment(composed of 34 months' imprisonment with an uplift of one month to reflect the factthe March offending occurred while Mr Aspinall-Su'a was on EM bail) is withinrange, albeit at the upper end of that range. But he resists any suggestion that thestarting point could or should have been higher (and that it would therefore offset anyerror in failing to allow a cultural discount).[37] If the Court were to adopt a discount in light of the s 27 factors, Mr de Grootsubmits leave under s 80I of the Sentencing Act 2002 should be reserved to allowMr Aspinall-Su'a to apply for home detention at a later date. A suitable address is notyet available. Mr de Groot refers to the statutory principles of keeping offenders inthe community as far as is consonant with safety and imposing the least restrictiveoutcome appropriate in the circumstances.19 In addition, he submits the principles of18 Carr v R [2020] NZCA 357.19 Sentencing Act 2002, ss 8(g) and 16.denunciation, deterrence and rehabilitation can all be served by a sentence of homedetention.[38] Mr Benson-Pope, for the respondent, agrees with Mr de Groot that the Judgeerred in reasoning that because the matters raised in Ms Turner's report were notunusual, they did not merit a discount. The respondent notes the Court of Appeal'sdecision in Carr was delivered a week after the Judge's decision. But the respondentacknowledges that in light of Carr and the comments made in Zhang v R and Solicitor-General v Heta, the matters raised in the s 27 report ought to have attracted adiscount.20[39] The respondent submits a discount of five to 10 per cent is appropriate, ratherthan a discount of 25 per cent as sought by Mr de Groot. It says Mr Aspinall-Su'a'ss 27 report suggests he was not exposed to the "constellation of factors" which oftenaffect an offender's life choices, the combination of which will justify discounts at thetop end of the appropriate range. In addition, it considers the causative link betweenMr Aspinall-Su'a's disadvantage and his offending is less apparent than in the casesdescribed above.[40] Notwithstanding the availability of a discrete discount for the matters raised inthe s 27 report, Mr Benson-Pope submits the end sentence was not manifestlyexcessive. The respondent refers to Court of Appeal decisions emphasising the harmfirearms can cause and the need for deterrent sentences.21 In light of those authoritiesand the fact the offending occurred on two separate occasions, he submits an overallstarting point of 34 months' imprisonment was not out of range. The Judge did notapply any uplift for the charge of receiving the stolen VW vehicle. If sentenced onthat charge alone, Mr Benson-Pope submits a starting point of six to eight months'imprisonment would be justified, with an uplift of two to three months beingappropriate given it was different in nature from the remainder of the offending.He also submits there were further uplifts available to the Judge, given the offending20 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648; and Solicitor-General v Heta [2018] NZHC2453, [2019] 2 NZLR 241.21 R v Richardson CA450/02, 25 March 2003 at [33]; and Torea v R [2011] NZCA 96 at [15].occurred while Mr Aspinall-Su'a was serving a sentence of intensive supervision andin light of Mr Aspinall-Su'a's previous convictions.22[41] When these factors are considered, he characterises the Judge's approach asgenerous. As such, the lack of a discount for the matters raised in the s 27 report isbalanced out.[42] For completeness, Mr Benson-Pope submits that even if the Court considersthe end sentence manifestly excessive, the least restrictive sentence is still one ofimprisonment. He refers to Palmer J's decision in Rowell v Police.23 Palmer J declinedto substitute a short term of imprisonment for a sentence of home detention on appeal.The appellant had issues complying with sentence obligations, the offending wasserious and there was a need to underscore the sentencing principles of denunciationand deterrence. Palmer J reiterated earlier comments of Cooper and Lang JJ, who hadobserved it is open to a Judge to consider that a sentence of home detention would notsufficiently denounce or deter in such circumstances.[43] Mr Benson-Pope submits the same approach should be adopted here. Theoffending occurred while Mr Aspinall-Su'a was serving a non-custodial sentence forfirearms offending. Some of it was also committed in breach of EM bail and theoffending itself was serious.Discussion[44] The primary issue on appeal is whether the Judge should have awarded acultural discount.[45] Section 27 allows an offender to request the court to hear information aboutthe "personal, family, whānau, community and cultural background of the offender"22 The respondent refers to the decision of Smith v Police [2014] NZHC 2196 at [15]-[18],where itsays uplifts of six and three months were approved to reflect the appellant's two previous firearmconvictions and the fact the offending occurred while on parole for firearms offending. I discussthis case below at [51].23 Rowell v Police [2019] NZHC 471.and "the way in which that background may have related to the commission of theoffence".24[46] The Court of Appeal in Carr v Police recognised that where a s 27 reportprovides credible evidence of factors indicative of systemic deprivation so as toestablish a causative contribution to offending, such factors ought to be taken intoaccount in sentencing.25 The Full Court of Appeal in Zhang referred to the followingpassage from Whata J's decision in Solicitor-General v Heta:26[50] The evidence of the presence of systemic deprivation (or socialadvantage more generally) on an offender need not be elaborate. Thesymptoms of systemic Māori deprivation are reasonably self-evident,including (among other things) intergenerational social and culturaldislocation of the whānau, poverty, alcohol and or drug abuse by whānaumembers and by the offender from an early age, whānau unemployment andeducational underachievement, and violence in the home.[47] As both counsel acknowledge, the Court in Carr held that it is inappropriate toconclude that because some with elements of systemic deprivation in their life do notoffend, "legitimate references to deprivation affecting the life of an individual offendercan be put on one side".27 The gravity of the offending may serve to mitigate theextent of any discount, but not whether a discount is given at all.28 As Mr Benson-Pope acknowledged, in fairness to the Judge, I note the Court of Appeal decision inCarr was delivered a week after the decision in this case.[48] Abuse appears prevalent in Mr Aspinall-Su'a's upbringing, particularly verbalabuse from his mother. He has no formal qualifications. In addition, he was exposedto methamphetamine by his father (who was absent for much of his life) and had asomewhat turbulent adolescence. Ms Turner's report did not expressly address howthese features of Mr Aspinall-Su'a's background contributed to his offending. ButI accept Mr de Groot's submission that Mr Aspinall-Su'a's history, much of which isnot of his making, bears the hallmark of a person who may be at high risk of contactwith the criminal justice system. And while the link between these factors and24 Sentencing Act 2002, s 27(1).25 Carr v R [2020] NZCA 357 at [65]. See also Waho v R [2020] NZCA 526 at [28]-[33].26 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [159], fn 102, citing Solicitor-General vHeta [2018] NZHC 2453, [2019] 2 NZLR 241 at [50].27 Carr v R [2020] NZCA 357 at [66].28 At [65].Mr Aspinall-Su'a's offending may not be as easily discernible as in other cases suchas Solicitor-General v Heta, the Court of Appeal has recognised that a court does notneed to be satisfied that the matters raised are a proximate cause of the offending.29It is enough that there is a causative contribution. I consider it of particular relevancethat Mr Aspinall-Su'a was introduced to methamphetamine by his father, as I agreewith Mr de Groot that Mr Aspinall-Su'a's addiction likely affected his behaviour,including the erratic decision-making on bail and the fear or paranoia which likelymotivated the firearms offending.[49] I consider the Judge should have awarded a cultural discount. I do not accepthowever that a discount of 25 per cent is appropriate. The direct causal connectionbetween Mr Aspinall-Su'a's upbringing and his offending is not as strong as in othercases.30 There is also some validity to the respondent's submission that his upbringingdoes not feature some of the factors most consistent with severe systemic deprivation,cultural disconnection and intergenerational poverty and disadvantage.31 But nor isthe offending as serious as in some of the other leading s 27 discount cases. I considera discount of 15 per cent to be appropriate. The Court of Appeal has commonlyallowed discounts of 15 per cent for cultural factors, including in circumstances wherethe trauma of an offender's upbringing is "of a lesser order than the worst that theCourt sees".32 Mr Aspinall-Su'a's rehabilitative prospects also justify such a discount.He is well-supported by his sister, expressed remorse to Ms Turner and is relativelyyoung. His criminal history is limited and he has never served a sentence ofimprisonment, with the majority of his convictions only occurring within the past yearand a half.[50] Neither the respondent nor Mr de Groot challenge the adjusted starting pointof 34 months' imprisonment adopted by the Judge, with the respondent calling it29 Cooper v R [2020] NZCA 510 at [19], citing Carr v R at [64].30 See, for example, Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.31 See, for comparison, Poi v R [2020] NZCA 312 at [32]-[51]. Mr Wilson grew up in anenvironment likened to "Once Were Warriors", entered foster care at age 12 and was expelled fromschool at aged 14 years. A discount of 20 per cent was given. Mr Poi's childhood wascharacterised by disruption to his primary caregivers, he suffered a serious head injury in a carcrash which killed his father, lived independently of any caregivers from age 16, and haddiminished intellectual capacity as a result of his head injury. A discount of 25 per cent was given,which also recognised Mr Poi's rehabilitative prospects.32 Gray v R [2020] NZCA 548 at [29]."plainly within range". I agree – the repeated possession of firearms is serious. ButMr Benson-Pope contends that despite a s 27 discount being warranted, the effect ofthat discount is largely countered by the Judge's "generous" approach to uplifts.[51] I do not consider this to be the case. An additional uplift may have beenwarranted to reflect the fact that the offending occurred while Mr Aspinall-Su'a wassubject to his sentence of intensive supervision. I do not think an extra uplift wasavailable to reflect his previous relevant convictions, given his only relevant previousconvictions were those for which he received the sentence of intensive supervision –double counting should be avoided. The respondent submits that uplifts of six monthsand three months were approved in Smith v Police to reflect the appellant's twoprevious firearm convictions and the fact the offending occurred while on parole forfirearms offending, respectively.33 But in Smith v Police, the appellant had sixprevious convictions for unlawfully possessing a firearm/pistol, and three previousconvictions for "ARMS" charges.34[52] Mr de Groot submits the receiving charge was clearly factored into thesentencing. It is unclear on the face of the decision whether that is so. But I note thecase management memorandum recorded that the charge was to be amended to one ofreckless receiving, which attracts a lower degree of culpability.[53] In Smith v Police, Brewer J considered a starting point of 18 months'imprisonment appropriate for an offender who had been convicted of firearms andammunition charges.35 In Kane v R Brewer J adopted as 12 month starting point fora single charge of possessing a shotgun under the bed with ammunition.36 Adopting astarting point of 18 months in Mr Aspinall-Su'a's case in relation to the Februaryoffending, and uplifting it by two months to reflect the receiving charge, which is theuplift the respondent submits is appropriate, and an additional 12 months to reflect theMarch offending, would bring the starting point to 32 months' imprisonment.Applying an additional uplift of one month to reflect the offending which occurred onEM bail and an additional uplift of three months to reflect the fact Mr Aspinal-Su'a33 Smith v Police [2014] NZHC 2196. See also R v Smith [2016] NZHC 851.34 At [15].35 At [14].36 Kane v R [2017] NZHC 340.was still subject to his sentence of intensive supervision would result in an adjustedstarting point of 36 months' imprisonment. By comparison, the Judge's adjustedstarting point of 35 months' imprisonment does not appear too low.[54] Ultimately, while the respondent suggests the Judge's approach to uplifts wasgenerous, having heard Mr Benson-Pope's responsible submissions I do not considerthe adjusted starting point fell outside the available range. In those circumstances, Iam not prepared to conclude that a cultural discount of 15 per cent would have nonoticeable impact, particularly given the alternative formulation of sentencing givenabove.[55] Adopting the Judge's starting point of 34 months' imprisonment and upliftingthat by one month to reflect offending on bail brings the sentence to an adjustedstarting point of 35 months' imprisonment. Applying a guilty plea discount of 25 percent and a cultural background discount of 15 per cent together, in accordance withthe methodology adopted in Moses v R,37 results in an end sentence of 21 months'imprisonment. By comparison, the Judge's end sentence of 26 months' imprisonmentis manifestly excessive. Even if an additional uplift had been warranted, I consider itwould not bridge the gap.[56] Accordingly, I consider the Judge erred in imposing an end sentence of26 months' imprisonment. The appropriate end sentence would be one of 21 months'imprisonment. As such, Mr Aspinall-Su'a's sentence falls within the realm of homedetention.[57] A sentence of imprisonment is "a measure of last resort".38 There is a"discernible legislative policy of keeping offenders within the community whereverappropriate".39 A sentence of home detention is a significant sentence in its ownright,40 but equally it would be an error to say that a short-term period of imprisonment37 Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381 at [45]-[46].38 Fairbrother v R [2013] NZCA 340 at [23], citing R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ254 at [18].39 Fairbrother at [23] citing Rawiri at [18].40 Fairbrother at [28].must always be commuted to a sentence of home detention.41 A judge must insteadmake a considered and principled choice between the two forms of sentence.42[58] Palmer J's decision in Rowell v Police is relevant.43 The appellant in that casewas sentenced to one year and six months' imprisonment on charges of unlawfulpossession of a pistol, assaulting a police officer and breach of a sentence ofcommunity work (which was imposed for a previous charge of possessing a firearm).On appeal, Palmer J considered the District Court Judge was correct to impose asentence of imprisonment rather than home detention and characterised the Judge'sreference to the following passage from the Court of Appeal's decision inR v Richardson as "apposite":44Loaded firearms are anathema within our community. Every Court has a clearobligation to impose sentences which in unequivocal terms express society'scondemnation of their availability because of the potential danger flowingfrom their possession.[59] That is not to say every sentence for firearms offending ought to be one ofimprisonment.45 But I accept Mr Benson-Pope's submission that it is relevant herethat at the time of the offending, Mr Aspinall-Su'a was subject to a sentence ofintensive supervision for presenting a firearm. After being charged with the Februaryoffending and being released on EM bail, he was then again found in possession offirearms and ammunition. Such possession of firearms needs to be deterred anddenounced.[60] On the other hand, Mr Aspinall-Su'a has not previously received a sentence ofimprisonment. He is only 24 years old and his prospects of rehabilitation seem good(provided his drug addicted can be addressed), particularly in light of his sister'scomments to Ms Turner. Home detention can also carry "a considerable measure ofdenunciation and deterrence, sufficient to supplant a short-term sentence of41 Fairbrother v R [2013] NZCA 340 at [30].42 At [30].43 Rowell v Police [2019] NZHC 471.44 At [10], citing Richardson v R CA450/02, 25 March 2003 at [33].45 See, for example, Elwin v Police [2019] NZHC 3258.imprisonment".46 It involves significant restriction on an offender's liberty and is nota soft option.[61] There is a question about Mr Aspinall-Su'a's ability to comply with a sentenceof home detention given his not insignificant breach of EM bail. However, it is hardto assess his possible compliance in a vacuum as no address has yet been proposed.A suitable address may become available which could provide sufficient oversight andsupport to address any compliance risks. In this regard, I note the pre-sentence reportrecommended a sentence of home detention. As an aside, I also note the addresssuggested in that report is that of Mr Aspinall-Su'a's mother. Given the contents ofthe s 27 report, I do not consider it appropriate for Mr Aspinall-Su'a to serve a sentenceof home detention at that address.[62] By a fine margin, I consider that if Mr Aspinall-Su'a were to find a suitableaddress with sufficient pro-social support, he would be capable of compliance.This would best provide for his reintegration and rehabilitation into the community,serve the purposes of denunciation and deterrence, and accord with the principle thatoffenders should be kept in the community so far as that is practicable and consistentwith the safety of the community. A sentence of home detention could also include acondition requiring participation in a drug treatment programme.Result[63] I allow the appeal. I quash the sentence of two years and two months'imprisonment, impose a sentence of 21 months' imprisonment and grant leave to applyto the District Court for home detention under s 80I of the Sentencing Act 2002.________________________________Gault J46 Elwin v Police [2019] NZHC 3258 at [13], citing R v Iosefa [2008] NZCA 453 at [41]; andFairbrother v R [2013] NZCA 340 at [29].