ROWELL v NEW ZEALAND POLICE [2019] NZHC 471

ROWELL v NEW ZEALAND POLICE [2019] NZHC 471 [18 March 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-429[2019] NZHC 471BETWEEN DAVID TAIRI ROWELLAppellantAND NEW ZEALAND POLICERespondentHearing: 18 March 2019Appearances: D J Taumihau for the AppellantS E Cann for the RespondentJudgment: 18 March 2019ORAL JUDGMENT OF PALMER JSolicitors:Public Defence Service, AucklandMeredith Connell, AucklandWhat happened?[1] On 1 November 2017, Mr David Rowell was arrested after a callout to a housein Glenside, Wellington, regarding a domestic dispute. He became aggressive andabusive, kicked one of the police officers and stomped on another's foot. A searchrevealed: a pistol capable of firing .22 ammunition, and firearm parts, in a bedroom hewas occupying; and, elsewhere at the property, the barrel of a firearm and two pistolmagazines capable of housing nine millimetre and .22 ammunition respectively.[2] Mr Rowell pleaded guilty to charges of: unlawful possession of a pistol unders 50 of the Arms Act 1983; assaulting a police officer; and (almost entire) breach of aJune 2017 community work sentence imposed for a previous charge of possessing afirearm.Decision under appeal[3] On 17 December 2018, Judge A C Roberts sentenced Mr Rowell in theAuckland District Court.1 The Judge set a starting point of 18 months' imprisonmentfor unlawful possession of the pistol, uplifted it for two months for the previousconvictions, uplifted it by another four months for the other charges and reduced thetotal by 25 per cent, or six months, for an early guilty plea. The end sentence was oneyear and six months' imprisonment.2 The Judge declined to impose home detentionbecause the home address was not appropriate, Mr Rowell had not readily compliedwith sentence obligations, the offending was serious and the principles of denunciationand deterrence needed to be underscored, in his view.3[4] Mr Rowell appeals the sentence for the pistol possession charge and thedecision not to impose home detention. Under s 250 of the Criminal Procedure Act2011, I must allow the appeal if I am satisfied there is an error in the sentence imposedand a different sentence should be imposed. Otherwise, I must dismiss the appeal. Ifocus on whether the end sentence is within the available range.41 New Zealand Police v Rowell [2018] NZDC 27162.2 At [12].3 At [13].4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].Submissions[5] Mr Taumihau, for Mr Rowell, submits the Judge erred in stating the maximumpenalty for the offence was four years rather than three years and in stating thatammunition was found.5 He submits the Judge erred in: setting a manifestly excessivestarting point; and not imposing home detention as the least restrictive sentence. Hedoes not now contest the uplift of two months for the previous convictions. He submitsa starting point of 12 months' imprisonment was appropriate, and s 16(2) of theSentencing Act 2002 (the Act) required home detention to be imposed.[6] Ms Cann, for the Crown, concedes the Judge erred in stating the maximumpenalty and presence of ammunition. But, on the basis of relevant case law, shesubmits the 18-month starting point was appropriate and offending involving firearmswill generally be met with a prison sentence.Was there an error in the sentence imposed?[7] Judge Roberts did state there was ammunition present, but he also expresslymentioned the pistol was not loaded. I do not consider his misstatement was materialto the sentence. He did err in misstating the maximum penalty for the pistol possessioncharge. But I do not consider a different sentence should be imposed because of eitherissue.[8] As Ms Cann submits, it is not inappropriate to look for consistency withsentencing for similar gun offences where the circumstances are similar. Mr Taumihaupoints to Perez v R, where the District Court set a starting point of 12 months.6 But Iconsider the Court of Appeal's finding, that that starting point was "well within range"for a cumulative sentencing of a commercial drug dealer with possession of a military-style semi-automatic, is such a different context that it does not assist here.7 I do notconsider the 18-month starting point is out of the appropriate range having regard tothe starting points adopted in other cases.8 I do not consider the nature of the firearm5 New Zealand Police v Rowell, above n 1, at [8].6 Perez v R [2015] NZCA 267.7 At [52].8 R v Richardson CA450/02, 25 March 2003; Smith v Police [2014] NZHC 2196; Waite v NewZealand Police [2015] NZHC 585.or the absence of ammunition means 18-months was unavailable as a starting pointhere. And, in R v Smith, Lang J observed that, generally speaking, "any charge ofbeing in unlawful possession of a firearm of this type [a shotgun] is likely to carry astarting point of around 18 months imprisonment".9 Lang J noted that was"particularly so" where there was an ongoing dispute between gangs, but I do not readhis comment as confining that starting point to such context.[9] Neither do I consider a two-month uplift for previous convictions is outside therange available to the Judge, as Mr Taumihau now concedes.[10] And I consider Judge Roberts was correct to impose a sentence ofimprisonment rather than home detention. The case to which Mr Taumihau refers,Howard v Police, related to a much less serious charge of theft in the context ofshoplifting.10 The factors to which Judge Roberts referred in deciding not to imposehome detention in this case are relevant and compelling. Although the pistol here wasnot loaded, Judge Roberts' quotation of the Court of Appeal's words in R v Richardsonfrom 2003, was apposite:11Loaded 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.[11] In 2010, in Martel v Police, Cooper J quoted that and other passages and foundit was open to the Judge there not to consider a sentence of home detention wouldsufficiently denounce or deter.12 Lang J found the same in Waite v New ZealandPolice.13 I consider the same applies here. The New Zealand courts' views of gunoffences have not become more lenient since 2003. The reasons are obvious. I dismissthe appeal.Palmer J9 Smith v Police [2016] NZHC 851 at [5]. See also Waite v New Zealand Police, above n 5, at [9].10 Howard v Police [2015] NZHC 150.11 New Zealand Police v Rowell, above n 1, at [9], citing Richardson v R, above n 8 at [33].12 Martel v Police HC Hamilton, CIV-2010-419-69, 4 October 2010 at [15];13 Waite v New Zealand Police, above n 8.