GEELS v R [2022] NZHC 3275

GEELS v R [2022] NZHC 3275 [6 December 2022]IN THE HIGH COURT OF NEW ZEALANDTIMARU REGISTRYI TE KŌTI MATUA O AOTEAROATE TIHI-O-MARU ROHECRI-2022-476-13[2022] NZHC 3275BETWEEN JACOB MARTIN GEELSAppellantAND THE KINGRespondentHearing: 6 December 2022Appearances: D I Brown for AppellantA R McRae for RespondentJudgment: 6 December 2022ORAL JUDGMENT OF EATON JIntroduction[1] Mr Geels pleaded guilty to and was convicted of 38 charges in the DistrictCourt. These were offences for unlawful possession of a firearm,1 unlawful possessionof a prohibited firearm,2 unlawful possession of a prohibited magazine,3 unlawfulpossession of explosives,4 possession of LSD for the purpose of supply,5 possessionof cannabis for the purpose of sale to a person over the age of 18,6 possession of autensil (a glass pipe) for the purpose of consumption of methamphetamine7 and1 Arms Act 1983, s 45(1): maximum penalty four years' imprisonment or a fine not exceeding$5,000.2 Section 50A: maximum penalty five years' imprisonment.3 Section 50B: maximum penalty two years' imprisonment.4 Section 45(1): maximum penalty four years' imprisonment or a fine not exceeding $5,000.5 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a): maximum penalty life imprisonment.6 Section 6(1)(f) and (2)(b): maximum penalty eight years' imprisonment.7 Section 13(1)(a) and (3): maximum penalty one year's imprisonment and/or a fine not exceeding$500.receiving a stolen caravan.8 Judge Dravitzki sentenced Mr Geels on 2 November 2022to 22 months' imprisonment and ordered him to pay $500 in reparation.9 The Judgealso imposed release conditions for up to six months after Mr Geel's sentence expirydate.[2] Mr Geels appeals his sentence. He takes no issue with the starting pointadopted or the credits allowed. The single ground of appeal is that the sentence shouldhave been commuted to home detention.Facts[3] On 10 July 2021, Mr Geels was at his home address. At that time he wasassociated with the Timaru Road Knights. Three patched Mongol gang membersarrived at the address. A confrontation took place where Mr Geels was shot in thebuttock. Mr Geels was transported to the Christchurch Hospital for medical treatment.[4] As a result of the shooting, the Police obtained a search warrant to conduct ascene examination at Mr Geels' address. The Police followed a trail of blood to acaravan on the property. On entering the caravan two firearms were found in thedoorway. A search of the caravan revealed a total of 14 firearms concealed throughoutthe caravan. The Police also located six unlawful magazines, over 150 rounds ofammunition and a detonator.[5] In a sleepout at Mr Geels' address the Police found 70 tabs of LSD, 323 g ofcannabis and 4.61 g of cannabis seeds, a glass pipe used for smokingmethamphetamine and a further 100 rounds of ammunition.[6] The Police also discovered that the caravan had recently been painted and allidentifying features, including the registration and vehicle identification number, hadbeen removed. Photographs identified the caravan as one stolen from an address inWaimate in mid-to-late December 2020.8 Crimes Act 1961, ss 246(1) and 247(a): maximum penalty seven years' imprisonment.9 R v Geels [2022] NZDC 21585.District Court decision[7] Judge Dravitzki gave Mr Geels a sentence indication on 28 April 2022. Thesentence indication notes are attached to the Judge's sentencing decision.[8] In the sentence indication, the Judge referred to the case law observing thatsentencing for firearms offending should "in unequivocal terms express society'scondemnation of their availability because of the potential for danger from theirpossession."10[9] The Judge identified that the firearms were on Mr Geels' residential propertyand were readily accessible. It was noted that while there was no evidence that any ofthe firearms were loaded, there were large quantities of ammunition readily accessiblenear the firearms. The Judge concluded that the firearms were either for Mr Geels'personal use for an illegal purpose, or for someone he knew to use for an illegalpurpose. The Judge described this as an aggravating factor. That two of the firearmswere prohibited was an additional aggravating factor.[10] The Judge did not consider Mr Geels' drug dealing to be a significantlyaggravating factor. He found that although Mr Geels admitted to drug dealing andthere were some drugs found on the property, there was evidence Mr Geels hadaddiction issues. The Judge accepted the firearms were not in Mr Geels' possessionto protect a significant drug operation.[11] Judge Dravitzki adopted a starting point of three and a half years'imprisonment. He imposed a two-year concurrent sentence for the possession of theammunition and explosives. A six-month uplift was imposed for the supply of Class Adrugs, acknowledging that there was no evidence of a large or sophisticated drugdealing operation. The Judge indicated he would convict and discharge Mr Geels onthe possession of cannabis and possession of the methamphetamine pipe charges. Forthe charge of receiving the stolen caravan, he indicated he would add an uplift of threemonths' imprisonment.10 R v Richardson CA450/02, 25 March 2003 at [33], cited in Torea v R [2011] NZCA 96 at [11].[12] That led to a starting point of four years and three months' imprisonment.[13] The Judge then considered Mr Geels' personal aggravating and mitigatingfactors. The Judge he did not consider Mr Geels' criminal history to be an aggravatingfactor. He indicated a 25 per cent discount for guilty pleas and a discount for timespent in custody on remand and on EM bail was appropriate. He said he wouldconsider the pre-sentence report and the s 27 report at sentencing.[14] In giving the sentence indication, the Judge noted that even if Mr Geels waseligible for a sentence of home detention, he should not assume that would be thesentence. The Judge said the offending required a focus on deterrence anddenunciation of the offender and of others in possession of unlawful firearms.[15] Mr Geels accepted the sentence indication and entered guilty pleas.[16] In the sentencing decision of 2 November 2022, the Judge acknowledged theCourt had received a pre-sentence report, a cultural report, a psychological report andan alcohol and drug report. The Judge went through, in detail, the contents of thosereports. Both counsel, who appeared at sentencing, and the pre-sentence report writerhad suggested home detention was an appropriate sentence.[17] The Judge allowed Mr Geels a 20 per cent discount to recognise the causalconnection between his offending and the factors outlined in the s 27 report and torecognise Mr Geels' addiction issues. The Judge also allowed a further five per centdiscount to recognise the positive steps taken towards rehabilitation, includingreducing the substances Mr Geels was taking and severing his connection with thegang. With the 25 per cent discount for the guilty plea, Mr Geels was given an overalldiscount of 50 per cent. From a starting point of four years and three months'imprisonment, that led to an end sentence of 25 and a half months' imprisonment. TheJudge then reduced the sentence to 22 months' imprisonment after allowing a furtherthree-and-a-half-month discount to recognise the time Mr Geels' spent on restrictiveEM bail.[18] The Judge then considered whether a sentence of home detention should beimposed. He observed that s 8 of the Sentencing Act 2002 requires him to impose theleast restrictive sentence that is appropriate in the circumstances. He acknowledgedthe competing purposes of sentencing Mr Geels, including assisting in hisrehabilitation and reintegration, promoting a sense of responsibility andacknowledgement of the harm done, denouncing his conduct, deterring him and othersfrom offending and protecting the community from Mr Geels. The Judge also notedthat s 16 of the Sentencing Act prohibits a sentence of imprisonment unless the judgeis satisfied that sentence is imposed for the purposes of s 7 of the Sentencing Act andthose purposes cannot be achieved by any other sentence.[19] Ultimately, the Judge was not prepared to convert the sentence to one of homedetention. He described the offending as very serious firearms offending due to thenumber and type of firearms, and the context of gang involvement and conflict. TheJudge observed that large amounts of ammunition were located and said:[36] In those circumstances, I am satisfied the only outcome that isappropriate for you, notwithstanding the length of sentence of imprisonmentwould enable consideration of home detention, is a sentence of imprisonment.Principles on appeal[20] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed if the Court is satisfied there has been anerror in the imposition of the sentence and that a different sentence should beimposed.11 As the Court of Appeal identified in Tutakangahau v R, referring to thelower court's decision, a "court will not intervene where the sentence is within therange that can properly be justified by accepted sentencing principles".12 It isappropriate for this Court to intervene and substitute its own views only if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.1311 Criminal Procedure Act 2011, s 250(2) and (3).12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].13 Ripia v R [2011] NZCA 101 at [15].[21] Home detention is an alternative to a short-term sentence of imprisonment.14The Court must be satisfied that the purposes for which the sentence is being imposedcannot be achieved by any less restrictive sentence.15[22] The approach on appeal is that of standard appellate review as set out in thedecisions of Palmer and Tutakangahau.16[23] As regards the contest that is central in this appeal between a sentence ofimprisonment and a sentence of home detention, the Court of Appeal in Fairbrother vR stated:17[30] the judge must make a considered and principled choice betweenthe two forms of sentence, recognising that both serve the principles ofdenunciation and deterrence, and identifying which of them better qualifies asthe least restrictive sentence to impose taking into account all the purposes ofsentencing.[31] Sometimes, as this Court said in R v D (CA253/2008), that can provea very difficult exercise of judgment; and "the closer one gets to the dividingline, the more difficult it becomes to articulate reasons for preferring oneapproach to the other"SubmissionsAppellant's submissions[24] Mr Brown, on behalf of Mr Geels, has submitted the Judge erred in refusing toconvert the sentence to home detention. In his written submissions he highlighted fourfactors:(a) the term of imprisonment was within the criteria for conversion to homedetention;(b) a sentence of home detention would have adequately satisfied theobjectives of denunciation and deterrence;14 Sentencing Act 2002, s 15A(1)(b).15 Section 15A(1)(a).16 Palmer v R [2016] NZCA 541; and Tutakangahau v R, above n 12, at [26]–[27].17 Fairbrother v R [2013] NZCA 340.(c) the sentencing Judge placed undue emphasis on the need fordenunciation and deterrence and failed to take sufficient regard of theother purposes of sentencing; and(d) the Judge failed to take into account other relevant factors, includingthat Mr Geels had limited previous offending, Mr Geels' rehabilitativeneeds favouring home detention and the fact there was no clear needfor imprisonment to protect the community.[25] In support of his submission, emphasised in his oral submissions thisafternoon, Mr Brown submits the Judge overemphasised the purposes of denunciationand deterrence, effectively to the exclusion of the other sentencing purposes.Mr Brown said the Judge "effectively misdirected himself" in noting that the seniorcourts have repeatedly said that firearms offending needs to be taken seriously andgiven an appropriately stern response by the courts, because the Judge strayed fromthe principle that each sentencing Judge must approach each case as an individual case.He submitted that this overemphasis, when coupled with the absence of sufficientlydetailed reasoning about the other purposes of sentencing, amounted to an error in theJudge's approach.18Respondent's submissions[26] Mr McRae, for the Crown, has submitted that there is no error in the Judge'sdecision to sentence Mr Geels to a term of imprisonment. He submits the Judgeconsidered all of the relevant factors that have been raised by Mr Brown. And MrMcRae submits the Judge was right to find the offending was very serious and had agang connection.Analysis[27] The end sentence in this case of 22 months' imprisonment means that homedetention was an available sentence to the sentencing Judge. A sentence of18 Citing Metua v R [2018] NZHC 246 at [14].imprisonment cannot be imposed where the purposes of sentencing can be served bya less restrictive sentence.19[28] Mr Brown has submitted that the Judge placed undue emphasis on the purposesof denunciation and deterrence, and failed to give appropriate weight to the otherpurposes of sentencing and other relevant factors.[29] I disagree with that submission. As acknowledged in many cases, denunciationand deterrence are important purposes in sentencing a defendant on firearmsoffending.20 The Judge, in my view, appropriately focused on the seriousness of theoffending and there can be no doubt that this was very serious offending. It involvedmultiple firearms, including two prohibited firearms. It involved many rounds ofammunition. Mr Brown accepts that there was a gang connection in this case.Mr Geels himself accepted that he was involved in a gang. It was a gang conflict thatled to him being shot. He had told the author of the pre-sentence report that he neededthe firearms for protection and that he lived to protect the gang's president. The gangelement of this offending elevated the seriousness of the offending.[30] I am also satisfied the sentencing Judge did consider the other purposes ofsentencing. On my read, the Judge gave a considered decision and expresslyacknowledged, either in his sentencing notes or in his sentence indication notes, theneed to assist in Mr Geels' rehabilitation and reintegration.21 Indeed, in setting asentence of imprisonment, the Judge rejected the submission that support withMr Geels' rehabilitation will not be available in prison and on post-release conditions,and he encouraged Mr Geels to continue his rehabilitation.22 That was clearly a factorconsidered by the sentencing Judge.[31] Further, the Judge was alive to Mr Geels' lack of serious criminal offending innot setting an uplift for his criminal history. I accept that there was no detailed analysis19 Sentencing Act, ss 8(g) and 16.20 Isle v Police [2022] NZHC 2454 at [33]; Bowring v Police [2021] NZHC 3198 at [22]; R vRichardson, above n 10, at [33]; R v McLean [2009] NZCA 465 at [24]; R v Torea, above n 10 , at[15]; Manapori v Police [2020] NZHC 627, at [27]; and Martel v Police HC Hamilton CIV-2010-419-69 at [15].21 R v Geels, above n 9, at [32].22 At [39].of the s 7 factors beyond denunciation and deterrence but, in my view, that did notamount to an error. The Judge was entitled to give denunciation and deterrence themost weighty consideration in fixing the end sentence.[32] I also note, as raised with counsel this afternoon, that the Judge did not refer tos 6(4) of the Misuse of Drugs Act 1975. That provision provides a statutorypresumption of a sentence of imprisonment for Class A drug dealing. That Mr Geelswas in possession of almost three times the quantity of LSD that presumes a defendantto be dealing,23 considered alongside his possession of firearms with ammunition andhis gang connections, would have made it difficult, in my view, for Mr Geels to haveavoided a full-time prison sentence for the Class A drug dealing offence alone and thatfactors against a sentence of home detention and supports the end sentence ofimprisonment.Conclusion[33] I understand and acknowledge Mr Geels' sense of frustration in that the Crown,at sentencing, supported an end sentence of home detention. But the Judge had madeit clear when giving the sentence indication that the sentencing purposes ofdenunciation and deterrence posed an obstacle to a sentence of home detention. Butthe Judge had not then reached a concluded view. Throughout the sentencing process,Judge Dravitzki engaged in a close and what I consider to be a careful considerationof all the relevant circumstances before ultimately concluding that the sentencingpurposes could not be achieved by any sentence short of imprisonment.[34] Since being shot and his subsequent arrest, there is no doubt Mr Geels hasmade important and potentially life-changing decisions. In particular I refer to hisdecisions to end his affiliation with a gang and to address his rehabilitative needs. Hispositive outlook was reflected in his compliance over a lengthy period whilst onEM bail. Those positive measures were recognised by the Judge in allowing what Iconsider to be a generous total discount of 50 per cent from the sentence starting point.But none of the factors, that is factors personal to Mr Geels, could, in my view, distract23 Misuse of Drugs Act, sch 5.from the very serious nature of the offending, such that a sentence of imprisonmentwas appropriate.[35] Mr Brown has said all that can be said in support of this appeal, however, Ihave concluded that Mr Geels has fallen short of demonstrating an error in the decisionof Judge Dravitzki.Result[36] Therefore the appeal is dismissed....................................................Eaton JSolicitors:Crown Solicitor's Office, TimaruDouglas Brown, Barrister, Christchurch