ISLE v NZ POLICE [2022] NZHC 2454

ISLE v NZ POLICE [2022] NZHC 2454 [23 September 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-121[2022] NZHC 2454BETWEEN JORDAN PATRICK ISLEAppellantAND NEW ZEALAND POLICERespondentHearing: 22 September 2022Appearances: J M Campbell for AppellantL Fiennes for RespondentJudgment: 23 September 2022JUDGMENT OF EATON JThis judgment was delivered by me on 23 September 2022 atpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] Jordan Isle pleaded guilty to carrying an imitation firearm,1 possessing afirearm without a lawful purpose,2 possessing explosives without a lawful purpose,3possessing a glass pipe for the purpose of consuming methamphetamine,4 possessionof methamphetamine,5 and failing without reasonable excuse to assist a personexercising a search function under the Search and Surveillance Act 2012.6[2] On 25 May 2022, he accepted a sentence indication given by Judge O'Driscollon 16 May 2022. That indication left open the option of an end sentence of homedetention. On 2 August 2022, Mr Isle was sentenced to 17 months' imprisonment byJudge O'Driscoll.7[3] Mr Isle appeals his sentence and seeks to have a sentence of home detentionsubstituted for the sentence of imprisonment.Facts[4] The Police executed a search warrant on Mr Isle's address on 16 March 2022.A further, warrantless search at the address found: a sawn-off 12-gauge shotgun in thedriver's side footwell of Mr Isle's vehicle; 279 different calibre ammunition including12-gauge shotgun rounds and large calibre subsonic rounds; 17 imitation firearms,mostly hand pistols and some rifles with specialist equipment to convert these into afunctioning state; ammunition reloading equipment; 0.05 grams of methamphetamine;and a methamphetamine pipe. The constable requested Mr Isle's pin code for his cellphone, which he declined to provide.1 Arms Act 1983, s 46(1): maximum penalty one year's imprisonment or a fine of $4,000.2 Section 45(1): maximum penalty four years' imprisonment and a fine of $5,000.3 Section 45(1): maximum penalty four years' imprisonment and a fine of $5,000.4 Misuse of Drugs Act 1975, s 13(1)(a) and (3): maximum penalty one year's imprisonment and afine of $500.5 Section 7(1)(a) and (2): maximum penalty 6 months' imprisonment and a fine of $1,000.6 Search and Surveillance Act 2012, s 178: maximum penalty three months' imprisonment.7 New Zealand Police v Isle [2022] NZDC 14671.District Court decision[5] In the Judge's sentence indication, he indicated the starting point would be nomore than two years' imprisonment, and that an electronically monitored sentencewould have to be considered. The Judge did not indicate whether an electronicallymonitored sentence would be imposed.[6] At sentencing, and consistent with the earlier indication, the Judge took astarting point of 18 months' imprisonment for the shotgun charge, with an uplift of sixmonths for the other charges. The Judge then allowed a 20 per cent discount for MrIsle's guilty pleas, resulting in 19 months' imprisonment. A further reduction of twomonths was allowed to reflect Mr Isle's time spent on electronically monitored bailresulting in an end sentence of 17 months' imprisonment.[7] The Judge then considered whether the sentence should be one ofimprisonment or home detention. He noted that Mr Isle had complied with electronicmonitoring while on bail and had no previous convictions involving firearms or drugs.However, the Judge considered that a sentence of home detention would not achievethe purposes and principles of sentencing because of the seriousness of the offending(including the number of firearms and the fact the shotgun was cutdown and found ina motor vehicle), that the imitation firearms indicated "somewhat of a production lineby you" (accepting a submission made by the prosecutor), that he was on parole at thetime of the offending and Mr Isle not being a young offender.[8] The Judge noted that if Mr Isle was given a sentence of home detention, therewould in effect be nothing to prevent him from being involved in firearms. He alsoemphasised that a strong message needs to be sent to the community that thepossession of firearms is totally abhorrent.Principles on appeal[9] 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 by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.8 As the Court of Appeal identified in Tutakangahau v R, quoting thelower court's decision, a "court will not intervene where the sentence is within therange that can properly be justified by accepted sentencing principles".9 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.10SubmissionsAppellant's submissions[10] Ms Campbell, for Mr Isles, submitted the least restrictive sentence availablewas one of home detention. She said the District Court Judge erred in four ways:(a) having regard to an unproven aggravating factor, being that Mr Isle wascreating a production line of creating imitation firearms that were beingturned into live firearms;(b) taking into account an irrelevant factor, being Mr Isle's age; and(c) having no regard for the factors that suggested home detention was theappropriate end sentence;(d) placing too much emphasis on the sentencing principles of deterrenceand denunciation.[11] Ms Campbell made succinct oral submissions in support of a sentence of homedetention.8 Criminal Procedure Act 2011, ss 250(2) and 250(3).9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].10 Ripia v R [2011] NZCA 101 at [15].Respondent's submissions[12] Ms Fiennes, for the respondent, submitted the Judge did not err in sentencingMr Isle to imprisonment as it was the least restrictive sentence appropriate in thecircumstances.[13] Regarding the prosecutor's submission of Mr Isle turning imitation firearmsinto working firearms in a "production line" advanced at sentencing, Ms Fiennessubmitted the Judge was entitled to take this into account in sentencing Mr Isle becauseit is an inference that can be drawn from the primary facts.11 She submitted that it canbe inferred from the presence of modifying equipment, the vast amount of ammunitionand the presence of reloading equipment that Mr Isle was producing working firearmsfrom the imitation ones, and therefore there was a "production line". Ms Fiennes saidshe was not present at the District Court hearing, but assumed that submissions weremade in open court and there must have been an opportunity for defence counsel tomake oral submissions on this point.[14] Ms Fiennes submitted the sentence was not manifestly excessive. She said thatthe decision to commute a sentence of imprisonment to one of home detention is anexercise of discretion and there is no presumption that either sentence will bepreferred.12 She cited Court of Appeal authority that confirms that denunciation anddeterrence are important principles when sentencing firearm offending,13 and furtherauthority that those principles may justify imposing a sentence of imprisonmentinstead of home detention.14 Ms Fiennes also refers to authority for the propositionthat firearm crime is increasing in the community, which justifies a harsher sentencingapproach.1511 Simon France (ed) Adams on Criminal Law (online ed, Thomson Reuters) at [SA24.02] citingR v Kinghorn [2014] NZCA 168 at [20] and [31]; Pokai v R [2014] NZCA 356 at [31]-[36]; andHerlund v R [2021] NZCA 71 at [42].12 Manikpersadh v R [2011] NZCA 452; and R v Vhavha [2009] NZCA 588.13 R v Richardson CA450/02, 25 March 2003; R v McLean [2009] NZCA 465 at [24]; and Torea v R[2011] NZCA 96 at [15].14 Manapori v Police [2020] NZHC 627; and Martel v Police HC Hamilton CRI-2010-419-69 at[15].15 Bowring v Police [2021] NZHC 3198, citing Ben Strang "Rates of gun violence and killings usingguns at highest levels in a decade" Radio New Zealand (online ed, 18 May 2020).[15] She submitted that it was open to the Judge to take a deterrent approach giventhe seriousness of the offending, the aggravating factors identified by the Judge, andthe fact that the offending took place at a residential address.Analysis[16] Home detention is an alternative to a short-term sentence of imprisonment.16The court must be satisfied that the purposes for which the sentence is being imposedcannot be achieved by any less restrictive sentence.17[17] The approach on appeal is that of standard appellate review as set out in thedecisions of Palmer and Tutakangahau.18[18] In Fairbrother v R, the Court of Appeal stated:19[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"[19] As noted above and by counsel, the court must impose the least restrictivesentence appropriate in the circumstances.20 A sentence of imprisonment can only beimposed where the court is satisfied that the sentence is being imposed for all or anyof the purposes in s 7(1)(a)-(g), except (d), those purposes cannot be achieved by asentence other than imprisonment, and no other sentence would be consistent with theprinciples of s 8 to the particular case.21[20] I will deal with the four errors as advanced by Ms Campbell.16 Sentencing Act 2002, s 15A(1)(b).17 Section 15A(1)(a).18 Palmer v R [2016] NZCA 541; and Tutakangahau v R, above n 9, at [26]–[27].19 Fairbrother v R [2013] NZCA 340.20 Sentencing Act, s 8(g).21 Section 16.Disputed fact[21] Ms Campbell submits the Judge erred by considering that Mr Isle appeared tobe involved in a production line converting imitation firearms to live firearms, whichaggravated his offending and factored against a sentence of home detention.[22] It is well established that where a sentencing is based on an agreed summaryof facts, the court cannot depart from that summary.22 However, the sentencing judgeis able to draw inferences from the agreed summary of facts in sentencing thedefendant.23[23] The summary of facts in this case stated:Throughout the defendant's sleepout and adjoining shed Police located17 imitation firearms and specialist equipment to convert these into afunctioning state. The bulk of these were hand pistols and some were rifles.Found amongst these was ammunition reloading equipment.[24] In referring to a production line, the Judge might be said to have been referringto an operation which revealed the various stages of an imitation firearm beingconverted into a working firearm. That was the bold submission made by theprosecutor who also, and without supporting evidence, had submitted the purpose ofthis production line was to supply firearms to gangs. Although generally accepting ofthe "production line" submission, Judge O'Driscoll was more circumspect. Hereferred to Mr Isle having "somewhat of a production line". The question on appealis whether that was an available inference.[25] I have regard, first, to the number of imitation firearms found. The finding of17 imitation firearms is supportive of the inference drawn. No explanation for havingthat number of imitation firearms was provided. Absent such an explanation andhaving regard to other unlawful items found, the sheer quantity of imitation weaponspoints to a nefarious purpose. That Mr Isle was also in possession of the specialistequipment required to convert an imitation firearm to a live firearm is an unlikelycoincidence. Again, absent an explanation, the Judge was entitled to infer the22 R v Apostolakis (1997) 14 CRNZ 492 (CA) at 494; Pokai v R, above n 11, at [30].23 R v Kinghorn, above n 11, at [20] and [31]; Pokai v R, above n 11, at [31]; and Herlund v R [2021]NZHC 1817.equipment was intended to be used to convert the imitation firearms. That Mr Isle wasalso found in possession of a sawn-off shotgun and ammunition is also supportive ofthe inference drawn by the Judge.[26] I am satisfied the combination of factors I have referred to point to Mr Islebeing engaged in an activity that was "somewhat of a production line". Counsel forMr Isle did not dispute that inference was available. In determining both theseriousness of the offending and the appropriateness of home detention it was it wasreasonable to infer Mr Isle's involvement, at some level, in the conversion of imitationfirearms to live firearms.[27] Mr Isle's real complaint is that a different prosecutor advanced a submissionas to an aggravating factor that had not been advanced at the sentence indicationhearing. That led the prosecutor to submit that a sentence of imprisonment and nothome detention was appropriate. I acknowledge there is an element of unfairnesswhen the prosecution significantly shifts its position from a sentence indication tosentencing. The position taken by the prosecution at a sentence indication may havehad some influence over the decision to accept the indication. However, theprosecution is not bound by earlier submissions. Any submission advanced as toaggravating factors will be open to contest. The Court will appropriately exercisecaution when the prosecution position has shifted to ensure the defence have theopportunity to dispute an alleged aggravating fact. Ms Campbell did not suggest MrIsle was denied that opportunity.Age[28] The Judge identified Mr Isle's age as factoring against a sentence of homedetention, he, at the age of 32 years, not being a youthful offender. Ms Campbellsubmits that this was an error. Youthfulness might well be considered a factorfavouring a sentence of home detention due to the greater focus on rehabilitation.However I agree with Ms Campbell that the fact Mr Isles is 32 years old does not meanimprisonment is necessary to achieve the purposes and principles of sentencing. In myview age was not a weighty factor in this case.Inadequate regard for pro home detention factors[29] Ms Campbell highlighted Mr Isle's prior compliance with electronicallymonitored bail; his lack of previous convictions for drug or firearms offending; thatuntil the offending there were no issues on parole and that he had not offended for thepast eight years. She acknowledged that those matters were referred to by the Judge.She submitted they were inadequate weight.[30] I do not place much weight on the absence of offending. Mr Isle had beensentenced to eight years' imprisonment on 28 May 2014 for wounding with intent tocause grievous bodily harm and assault with intent to injure. He was released in April2019 and reoffended in March 2022.[31] The Judge recognised those factors as supportive of a sentence of homedetention24 but found they were outweighed by the prevailing factors. I see no errorin the approach of the Judge.Emphasis on denunciation and deterrence[32] Finally, Ms Campbell submitted that while deterrence is a relevant factor insentencing, it does not on its own justify a longer sentence if there is nothing to suggestit will be ineffective deterrence.25 She submitted there was nothing before the Courtoutside of anecdotes about an increase in gun violence that would suggest a sentenceof imprisonment would be an effective deterrent for either Mr Isle in future or otheroffenders.[33] I do not accept that submission. I agree with Ms Fiennes that deterrence anddenunciation are appropriate and important purposes in sentencing defendantsoffending with firearms. With other Courts acknowledging increased gun violenceand the hardening of sentencing for this type of offending26, I consider the Judge didnot need to cite a localised increase in crime requiring deterrence and denunciation.That is not to say home detention ought not be imposed for offending involving24 New Zealand Police v Isles , above n 7, at [11] and [13].25 R v Wellington [2018] NZHC 2196 at [8]-[9].26 Bowring v Police, above n 15.firearms. But, in a case involving a sawn-off shot gun found in a car on a propertywhere there was a significant amount of ammunition and an unexplained hoard ofimitation weapons able to be converted to live firearms and evidence ofmethamphetamine use, I find myself in agreement with the Judge that a sentence ofhome detention would not adequately denounce and deter this offending.[34] When a sentencing Judge is confronted with this amalgam of criminalbehaviour it is almost inevitable that the sentencing purposes of denunciation anddeterrence will determine the sentencing. The decision not to commute the sentenceof imprisonment to one of home detention was both available and, in my view,appropriate.Result[35] The appeal is dismissed....................................................Eaton JSolicitors:Crown Solicitor's OfficeCopy to:Josh Lucas and J M Campbell, Barristers, Christchurch