TAHAPEHI v POLICE [2018] NZHC 2666

TAHAPEHI v POLICE [2018] NZHC 2666 [17 October 2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2018-409-74[2018] NZHC 2666BETWEEN LEA BLAIR TAHAPEHIAppellantAND NEW ZEALAND POLICERespondentHearing: 4 October 2018Appearances: K L Chalmers for AppellantC J Boshier for RespondentJudgment: 17 October 2018JUDGMENT OF NICHOLAS DAVIDSON JA. INTRODUCTION[1] Ms Tahapehi was convicted at trial in the District Court on one charge ofpossession of ammunition and one charge of possession of a knife.1 The Judgesentenced her to five months home detention.2[2] She appeals against her convictions. She says the car search which gave riseto the charges was unlawful, and that the Judge erred in finding that she was inpossession of the knife in a public place.[3] Otherwise, she appeals against the sentence, saying the Judge was wrong toplace no weight on her version of the facts, and that the sentence is manifestlyexcessive.1 Police v Tahapehi [2018] NZDC 20520.2 Police v Tahapehi [2018] NZDC 15744.Jurisdiction and approach to appeal[4] Ms Tahapehi appeals as of right.3 The Court must allow the appeal againstconviction if it finds that a miscarriage of justice has occurred.4 A miscarriage ofjustice is defined as any error, irregularity, or occurrence in or in relation to the trialthat created a real risk that the outcome of the trial was affected, or has resulted in anunfair trial.5[5] The Court may only allow an appeal against sentence if it is satisfied there isan error in the sentence imposed and that an alternative sentence should be imposed.6If the sentence can be properly justified having regard to relevant sentencingprinciples, this Court cannot substitute its own views for those of the sentencing Judge.The sentence must be manifestly excessive or inappropriate if the sentencing Judge'sdiscretion is to be interfered with.The alleged offending[6] On the morning of 14 December 2017 Ms Tahapehi was at an address onBarbadoes Street which was under Police surveillance. At 8:30 am she left the addressin a car driven by an associate, her then boyfriend. Police followed the car and pulledit over in circumstances which are challenged in this appeal. A knife was seen in theback seat and as a result the car was searched. The sheathed hunting knife, a bag witha face mask and a roll of insulation tape, and a loaded shotgun were seized from thecar.[7] Ms Tahapehi and her associate were arrested and searched. In Ms Tahapehi'sbra was found a plastic zip-lock bag with 32 rounds of ammunition and a bag ofBB-gun pellets. She said that she had seen the ammunition in the car and put it in herbra when she realised they were going to be searched. She said she had no knowledgeof the shotgun.3 Criminal Procedure Act 2011, s 229 and 244.4 Criminal Procedure Act, s 232(2).5 Section 232(4).6 Criminal Procedure Act, s 250.[8] Her fingerprints were found on the blade of the knife. She was charged withpossession of the knife and the ammunition found in her bra. The driver pleaded guiltyto possession of the gun and its loaded ammunition.B. THE CONVICTION APPEALThe Judge's findings[9] At the conclusion of the prosecution case, Ms Tahapehi's counsel made anapplication under s 147 of the Criminal Procedure Act 2017 ("the Act") for the chargesto be dismissed. The Judge dismissed that application and gave reasons on28 May 2018.7 The defence then elected not to call any evidence, and the Judgeentered convictions largely on the basis of his reasoning in the s 147 judgment, whichI summarise here.[10] The s 147 application was based on a contention that stopping the carwas unlawful as it was not for any genuine or legitimate purpose. If the detention wasunlawful, anything detected by the Police was submitted to be inadmissible. Thecharge of unlawful possession of the knife was challenged on the basis thatthe elements of the charge were not made out.[11] His Honour referred to the evidence of the Police officers that the addresswhich the appellant left was of interest to the Police, and there was a raid planned onthe property. When they saw the appellant and her associate leave, they were unableto identify them and followed their car. One of the officers made enquiries about thecar through the Police communications system, and found that the owner of the carwas required to be served with a demerit points suspension notice and, on that basis,they stopped the car.[12] One of the constables spoke to the driver. The person of interest at the addresswhich the two persons in the car had left was a woman whose name was given inevidence. The officer did not know what she looked like. The appellant was askedher name, and the officers then realised that neither occupant was the owner of the car7 Police v Tahapehi [2018] NZDC 20152.nor the person of interest from the address. Only after that, on their evidence, did theysee a knife on the back seat and carry out the search.[13] As to the legality of the search, the Judge distinguished McGarrett v R, inwhich a person the Police suspected as a methamphetamine courier was pulled over,purportedly pursuant to the Land Transport Act 1998 ("LTA").8 The Court of Appealheld that was an inappropriate use of Police power. Here, the Judge said stopping thecar was for the lawful purpose of serving the demerit points suspension notice. Whenthe officers saw the driver was male they knew he was not the owner of the car and itwas reasonable to ask the identity of the appellant, who could have been.[14] The Judge accepted the Police evidence that at this point the knife was spotted,and Search and Surveillance powers were invoked. The Judge said that "if the officerat that stage had done nothing and had elected to back off because he had no power,then in my view the law would be a complete ass".9[15] As to the knife, the Judge said there were two possibilities. Either it was in thecar before the appellant got into it, and she had handled it beforehand, or else she putthe knife into the car as she was getting in. His Honour said that "whichever of thoseexplanations may be applicable, it is open to conclude that she did have possession ora degree of control over the knife".10 She would have been aware of the knife as shehad handled it, and had a degree of control over it because it was easily within herreach in the car.Issue one: The car stop[16] Ms Chalmers for the appellant submits that to lawfully stop a vehicle, thePolice must either be exercising their duties under the LTA or have a reasonable beliefsufficient to invoke powers under the Search and Surveillance Act 2012 ("SSA"). Shesubmits that although there are powers under the LTA to stop a car for certain LTArelated purposes, under cross-examination both Police officers said that the car and thepeople leaving the house were of interest and for that reason they followed them and8 McGarrett v R [2017] NZCA 204.9 Police v Tahapehi, above n 7, at [21].10 At [23].pulled the car over to identify those inside, but only after they thought they hadgrounds to do so.[17] Ms Chalmers relies on McGarrett v R, where the Court of Appeal held that LTApowers cannot be used as a pretext to stop a car for other purposes, and submits theLTA ground was used here as an unlawful pretext. She says the officers admitted incross examination that they would have tried to identify who was in the car and mayhave pulled the car over anyway. The fact there was an alert on the registration of thecar was "pure luck", as it gave another reason, also under challenge, to stop the car.[18] Counsel submits that the Police had no right to require Ms Tahapehi to providedetails of her identity when the car was pulled over. She says it was not until she hadgiven her name and the Police had returned to their car to search the name, that theycame back to the car and saw the knife on the back seat. She submits that the Policehad no right to require the car to remain stopped for any longer than necessary for thepurpose of checking whether the driver was the owner. Relying on Baylis v R, shesays that any further detention, for an additional purpose, was unlawful and in breachof her rights under the New Zealand Bill of Rights Act 1990 ("NZBORA").11[19] If the search was illegal, the Court must consider whether the exclusion of theevidence would be proportionate to the impropriety of the search unders 30 Evidence Act 2006. Ms Chalmers submits that balancing test favours exclusionof the evidence, as three rights were breached: the right of freedom of movement, theright not to be arbitrarily detained, and the right not to be unreasonably searched.[20] She submits this was a "clear and deliberate attempt to use Police power underthe LTA to obtain information they could not obtain legally or easily" and that thePolice thought the information they sought was more important than the rights of thosein the car.[21] She says the evidence seized from the car lacked probative value. The knifewas a hunting knife, and at the time of seizure there could have been a reasonableexcuse for its presence in the car, and a defence to any charges.11 Baylis v R [2018] NZCA 271 at [34].[22] As to the seriousness of the offending, Ms Chalmers says the ammunition onits own could not have caused harm to anyone, and there was no evidence that theappellant knew of the presence of the shotgun. She says there was no urgency inthe matter; the Police simply wanted to gather information. Further, she says therewere other techniques available to the Police, such as visually identifying theoccupants of the car.[23] Ms Boshier for the Crown points out that one constable said he would not havestopped the car just to see what the occupants had to say. There was conflictingevidence as to whether the knife was seen when the officers first stopped the car, orwhen they went back to the car a second time.[24] Ms Boshier accepts that the officers were not entitled under s 114 LTA torequire a passenger in the car to give their name and details. However, she says therewas nothing to stop the officers asking, and the appellant volunteered that informationwhen asked. She says the case is distinguishable from McGarrett. In that case theofficers made it appear they were conducting a regular traffic stop when they alwaysintended to invoke a SSA search for drugs when backup arrived. Here there was agenuine LTA purpose for stopping the car, and there was no intention to carry out asearch of the car prior to sighting the knife. The intention to identify who was in thecar was for the purpose of serving the demerit points suspension notice.[25] Once the knife was seen, Ms Boshier submits it was lawful to invoke the SSApower.[26] As to s 30, Ms Boshier submits that if impropriety is established, it does notwarrant exclusion of the evidence. The right which protects unlawful search andseizure is very important, but the search of a car is a lesser invasion than, say, thesearch of a home. She says there was no bad faith on the part of the police; the officersgenuinely believed they had the power to pull the car over under the LTA. She saysthe evidence obtained is highly probative and crucial to the prosecution's case.[27] Ms Boshier also says the offences are "reasonably serious", carrying three andfour year maximum sentences. She refers to Kalekale v R, where the Court of Appealsaid:12Where the offending is serious and the evidence is reliable, especially incircumstances where the impropriety was more in the nature of an oversightthan an egregious breach of rights, it is more likely this factor will result inthe evidence being admitted.AnalysisThe lawfulness of the stop[28] This appeal raises important questions about Police powers to stop cars underthe LTA. The position of the Crown was developed further in oral submissions, andput on alternative bases. First, Ms Boshier says that the stop and detention were lawfulbecause the officers were carrying out their duty in attempting to serve the demeritpoint suspension notice. Even if that outcome was a matter of chance, it was properto check the registration on the Police systems, and to act once the demerit points issuewas known.[29] Notwithstanding that, Ms Boshier submits the Police were entitled to pull overthe car under s 114 in any event to ascertain details of the driver. The fact the Policewere interested in that information for non-driving or vehicle related reasons shesubmits is immaterial, as the LTA empowers them to pull over a car and check, forexample the driver's licence, registration, and warrant, and that is what they did.[30] The power to stop a car under s 114 is not untrammelled.114 Power to require driver to stop and give name and address, etc(1) An enforcement officer who is in uniform, or wearing a distinctivecap, hat, or helmet, with a badge of authority affixed to it, may signalor request the driver of a vehicle to stop the vehicle as soon as ispracticable.(2) An enforcement officer in a vehicle following another vehicle may,by displaying flashing blue, or blue and red, lights or sounding a siren,require the driver of the other vehicle to stop.12 Kalekale v R [2016] NZCA 259 at [41].(2A) Subject to subsections (4) and (5), the driver of a vehicle that isstopped by an enforcement officer under this Act must remain stoppedfor as long as is reasonably necessary for the enforcement officer tocomplete the exercise of any powers conferred, or duties imposed, onan enforcement officer by this Act.(3) An enforcement officer may require the driver of a vehicle that isstopped under this Act to –(a) remain stopped for as long as is reasonably necessary for anenforcement officer to obtain the particulars referred to inparagraph (b), or to complete the exercise of any other powerconferred on an enforcement officer by this Act; and(b) on demand by an enforcement officer,—(i) give his or her full name, full address, date of birth,occupation, and telephone number, or such of thoseparticulars as the enforcement officer may specify;and(ii) state whether or not he or she is the owner of thevehicle; and(iii) if the driver is not the owner of the vehicle, give thename and address of the owner or such particularswithin the driver's knowledge as may lead to theidentification of the owner.(4) The driver of a vehicle that is stopped under subsection (2) is notobliged to remain stopped if the vehicle with flashing lights and sirendoes not itself stop in the near vicinity of the place where the driverhas stopped.(5) An enforcement officer may require a driver to remain stopped on aroad for as long as is reasonably necessary to enable the officer toestablish the identity of the driver, but not for longer than 15 minutesif the requirement to remain stopped is made under this subsectiononly.(6) An enforcement officer may arrest a person without warrant if theofficer has good cause to suspect the person of having—(a) failed to comply with this section or a signal or request orrequirement under this section; or(b) given false or misleading information under this section.[31] The predecessor to s 114 was s 66 of the Transport Act 1962. While there aresome differences, the substance of the sections is the same. In R v Jeffries, the Courtof Appeal held that the section could not be used for non-Transport Act purposes.1313 R v Jeffries [1994] 1 NZLR 290 (CA).That case was cited in McGarrett as applicable under the new regime: s 114 "cannotbe used for non-road transport purposes".14[32] In McGarrett the stop was unlawful because the Police purported to pull overthe car to check its registration and warrant, when they had no interest in thatinformation. The real purpose of the stop was stop the car while Police backup wascalled in.[33] The reason for the stop is relevant to its lawfulness. While the LTA empowersofficers to stop cars for no other reason than to enforce the LTA, for example, to checklicences, warrant of fitness, registration etc, that enforcement must be the genuineobject of the stop. It cannot be used as an 'excuse' to stop the car for an unrelatedpurpose. That is the import of McGarrett, consistent with the need for cleardelineation of Police powers and transparency in their exercise.[34] The question is whether the situation is any different where, as here, there is alegitimate LTA purpose specific to the vehicle in question which comes to the attentionof officers while engaged in another, non-LTA, purpose. The legitimate purpose cameto the attention of the officers before the stop, when they found the demerit pointsnotice alert on their Police system. Ms Chalmers says this makes no difference, as thetrue purpose of the stop was to get details of the occupants of the car for somethingentirely unrelated to the demerit points, so that was used as an 'excuse'.[35] The purpose of the stop, and whether the LTA is invoked as an 'excuse', are inthe first place questions of fact. In McGarrett, the Court was met with the submissionon behalf of the Police that they had two powers in mind - the LTA power, and theSearch and Surveillance power - and that both could be used for their correspondingpurpose. The Court rejected this, finding there was "nothing in the evidence thatwould suggest [the officer's] actions were genuinely done for the purpose ofenforcement and administration of the LTA".15 If there is such evidence, then it ispossible that there could be dual purposes, or that the purpose is dynamic and changesas new information comes to light.14 McGarrett v R, above n 8, at [18].15 At [19].[36] In this case, when the Police started following the car, they were interested inthe identity of its occupants for non-LTA related purposes. At that point they did notstop the car and had no authority to do so, under the LTA or otherwise. It was oncethe demerit points suspension came to the attention of the officers, and only then, thatthey pulled the car over.[37] If the Police are interested in a car or its occupants for some non-LTAreason that in my view should not disqualify them from pulling a car over once alegitimate LTA reason arises. If the officers had seen the driver driving dangerously,there can be no doubt they could and should have intervened, whatever their priorinterest in the car and its occupants.[38] Given this sequence, and the evidence of the officers, I am satisfied that whenthe car was stopped the officers had the genuine purpose of issuing the LTA notice.The fact that the officers were interested in the identity of the occupants for otherreasons did not undo that. Indeed, in my view it would be a curious result if the officershad not taken the opportunity to issue the notice when it arose. Unlike McGarrett, theevidence shows that the action of stopping the car was with a genuine LTA purpose,although it was a stroke of luck that they learned of the demerit points. It would beunworkable if the law required the Police to put aside a lawful purpose because theypaused to recognise it was not the real or underlying interest in stopping the vehicle.When would the lawful purpose have sufficient weight to stand on its own to put asidethe taint of opportunism? That in my view would be an unworkable and impracticaloverlay to impose on the Police.The lawfulness of the 'continued detention'[39] The officers were justified in stopping the car, but there remains the questionwhether the car and occupants were detained after the legitimate purpose was spent,and whether that gives rise to any impropriety.[40] Section 114(3) states that an enforcement officer may require a driver to stop"for as long as is reasonably necessary to obtain the particulars referred to inparagraph (b), or to complete the exercise of any other power conferred on anenforcement officer" by the LTA. The particulars in paragraph (b) are the personaldetails of the driver and the identity of the owner of the car. Section 114(5) states theenforcement officer "may require a driver to remain stopped on a road for as long asis reasonably necessary to enable the officer to establish the identity of the driver, butnot for longer than 15 minutes if the requirement to remain stopped is made under thissubsection only."[41] The evidence of the constable who first approached the car is that he requesteddetails of the driver. He then asked for details of Ms Tahapehi, who was sitting in thefront passenger seat. He returned to the patrol car and searched those details, thenwent back to the car. Only then did he see the knife in the back seat. The otherconstable's evidence is different. He does not mention his colleague returning to thepatrol car, which suggests that the constable saw the knife prior to moving away fromthe detained car.[42] In cross-examination this other constable stressed that his memory of theevents was not clear. The account of the constable who first approached the car isclearer.[43] In Roper v Police the Court of Appeal held that "once the driver has stoppedand has supplied the information thereafter sought, that obligation to stop (and remainstopped) has been exhausted."16 Once the details relevant to the demerit points noticehad been obtained, the appellant and her associate were, as a matter of law, free toleave. In my view, continued detention beyond that point would have been unlawful.[44] There is no evidence of what (if anything) the constable said to the occupantsof the car as he returned to the patrol car to check their details. This makes it harderto determine whether there was a continued detention, but there is no evidence that adirection was given to stay where they were. The fact that the appellant and herassociate stayed parked up suggests they believed they were still being detained. Thelegal position in this country (contra some jurisdictions) is that someone is not detainedsimply because they think they are being detained. The question is whether,objectively, the belief that they are being detained is a reasonable one.1716 Roper v Police [1984] 1 NZLR 48 (CA).17 R v Goodwin (No 2) [1993] 2 NZLR 390 (CA).[45] The Police did not disabuse the occupants of the car of their belief that theywere still being detained and my conclusion is that it was reasonable for them tobelieve they were still under detention. The detention between the details of the driverbeing ascertained and the subsequent discovery of the knife on the back seat was, inmy view, unlawful.The s 30 balancing test[46] Despite an unlawful detention, the balancing test in s 30 strongly favours theevidence being admitted. Exclusion of the evidence would be disproportionate to theimpropriety, taking into account the need for an effective and credible system ofjustice.18[47] To be free of unlawful detention is a vital right but the impropriety in this casewas of the most minor kind. The detention I find to be unlawful was only for a fewminutes, sandwiched between two lawful periods of detention. There was no bad faithon the part of the Police, who stopped the car for the lawful purpose of serving theLTA notice on the owner of the car.[48] The evidence obtained following the unlawful detention is vital for theprosecution, and there are no issues as to its reliability. While the charges againstMs Tahapehi are not particularly serious in themselves, they are together sinister, butthis is only one factor. To exclude the evidence in such circumstances would be outof all proportion to the impropriety. The evidence was admissible under s 30 EvidenceAct.Issue two: Possession of a knife in a public place[49] The elements of the charge of possession of a knife in a public place are:(a) Knowledge that the item was there;(b) Ability to physically control the item (proximity); and(c) Intention to control the item.18 Evidence Act 2006, s 30(2)(b).[50] Ms Chalmers submits neither the driver nor the appellant were seen puttinganything in the car when they got in and drove away. There was no evidence theappellant could see the knife while in the car, and so it is not proved she had knowledgeof it. In oral submissions Ms Chalmers said that a bag and other items on the backseat may have blocked Ms Tahapehi's view. Her fingerprint was found on the blade,not on the handle or sheath. Ms Chalmers says this means or could mean the appellantdid not place the knife in the car, but only that at some point in the past Ms Tahapehihad touched the knife.[51] She submits that the effect of the decision under appeal is that if a persontouches an item in any circumstances, they have knowledge and possession of it forperpetuity, and that this is an absurdity. Of course, counsel is right, that would be anabsurdity. Having once had possession does not mean an item is in that person'spossession at some later time.[52] Ms Boshier submits that the knife was plainly within reach of the appellantwhen she was in the car. In Ellmers v Police, a weapon was said to be under theoffender's control inside her car when she was standing outside of it.19 InPark v Police, a weapon found in a backpack in the boot of the offender's car was saidto be in the offender's "actual or potential physical custody or control", satisfying therequirements of the offence.20[53] She submits it was open for the Judge to find that the appellant was aware thatthere was a knife in the back seat of the car. It was a relatively large object in plainview. Her fingerprint on the blade proves that she had handled it, at some point. Therewas no evidence to suggest that she had touched the knife previously then was unawareof or had forgotten about it being in the car, but there is no onus on the defence toprove such an alternative explanation. The appellant had control of the knife in that itwas within easy reach. Where two or more people have a degree of control oversomething, it may be said to be in the control of both and it is not enough for theappellant to say it was in the possession of the driver. Finally, Ms Boshier says it can19 Ellmers v Police HC Gisborne AP 18/87, 10 February 1988.20 Park v Police AP 86/93, 24 August 1993.be inferred from her having control of the knife, that the appellant had an intention toexercise that control.Discussion[54] This ground of appeal lacks merit. The evidence clearly establishes, throughthe fingerprint, that the appellant touched the knife at some point. She was in the car,with the knife on the back seat. While the evidence does not establish the sequence ofevents regarding the knife, when the appellant touched it, and how it got into thecar - the overwhelming inference, when a knife that a person has touched is in a carwith that person, is that first person knows about it, and has and intends to have controlover it. The knife was large and obvious to anyone in the car.[55] It is not the mere presence of the fingerprint, but the combination of that, andbeing in the car with it while it was in plain view, which gives rise to the inference ofpossession and control.Outcome[56] The appeal against the conviction entered against Ms Tahapehi is dismissed.C. THE SENTENCE APPEALThe Judge's decision[57] The Judge identified one aggravating feature only of the offending, that theappellant tried to conceal the ammunition from the Police. There were no mitigatingfeatures. The Judge observed that the occupants of the car were "involved in the useof methamphetamine at the time, and that must be a factor against which thebackground of this offending is tainted ".21[58] The Judge said his concern was that "we are into the area of firearms". Thepresence of black tape and a face mask "all raises concerns as to what really was goingon, on this particular occasion".22 Ammunition, he said, leads to use in firearms, which21 Police v Tahapehi, above n 2, at [10].22 At [12].leads to serious risk to the community, and the Judge emphasised the need for adeterrent sentence in the circumstances.[59] His Honour had little to guide the sentence and there were no cases referred tothe Court where a person was sentenced solely on the basis of possession ofammunition. The Crown sought a starting point of 10 months, and the defence soughtthree months. The Judge adopted a nine month starting point, uplifted by one monthfor the knife charge.[60] The Judge recognised that the charge involved possession only, andMs Tahapehi does not have a significant criminal history. His Honour was of the viewthat a sentence of five months home detention was appropriate.Submissions[61] Ms Chalmers submits that the Judge erred in not taking into considerationMs Tahapehi's version of the events, that she was only in possession of the ammunitionfor a matter of minutes, having hidden it on her person out of misguided loyalty to herthen boyfriend. She submits the Judge was inconsistent in saying there were no otheraggravating features but referring to other items and conduct in the car which raised aconcern as to "what was going on". She submits that any aggravating feature needs tobe proved beyond reasonable doubt.[62] Ms Chalmers refers to R v Kane, in which the offender was a gang memberwho had a shotgun and ammunition in his possession, where there was no connectionbetween the gun, ammunition and any other offending.23 A starting point of 12 monthswas adopted. Similarly, in Perez v R, a 12-month starting point was adopted wherethe offender was in possession of a semi-automatic firearm in connection with drugdealing offending.24[63] Counsel says these cases were significantly more serious than Ms Tahapehi'soffending. Once personal circumstances are taken into account (lack of relevant23 R v Kane [2017] NZHC 340.24 Perez v R [2015] NZCA 267.offending, the fact she was in employment, the malign influence of her associate) shesubmits a sentence of community work ought to have been imposed.[64] Ms Boshier says there was no error in the sentence. She refers toBlackett v Police, where the appellant was on parole when Police arrived at his houseand found two rifle bolts and 366 rounds of ammunition.25 The sentencing Judge tooka starting point of 20 months, but on appeal it was held that a starting point of no morethan 12 months was appropriate. In Tamepo v Police the offender was found to havefour .22 rounds of ammunition in a shoulder bag. An end sentence of seven monthsimprisonment was imposed, cumulative on other sentences.26 Given that a 30 per centdiscount was applied, it can be inferred that the starting point was 10 months. WhileMs Boshier accepts the offending here was less serious than Blackett, she says it iscomparable to, if not more serious than, that in Tamepo.Discussion[65] In light of the cases cited and the facts proved, the starting point of nine monthswas too high. Given the paucity of directly relevant case law, this sentencingcontributes to setting the starting point range for offending of this type. The Courtmust recognise a difference in starting points between cases where possession ofammunition is in tandem with possession of an associated weapon or some othersignificant charge. The danger involved in possession of ammunition and a gun ishigher than ammunition in isolation. A clear differentiation between the two types ofoffending is needed to reflect the gravity of the offending.[66] The Court should be mindful of Ms Tahapehi's version of events which isplausible, and she should be given the benefit of the doubt. The fact she tried toconceal the ammunition from the Police is aggravating but overall the offending is lessserious than if she put the ammunition in the car for a nefarious purpose, for example,one associated with a firearm. I agree that it cannot be assumed she did have any suchpurpose. The items in the car other than the knife and ammunition were not clearlylinked with her.25 Blackett v Police [2013] NZHC 1675.26 Tamepo v Police HC Hamilton CRI-2009-419-88, 9 March 2010.[67] Her offending is much less serious than in Kane, Perez, and Blackett. In myview Tamepo should be treated with care. On appeal in that case, the only submissionmade was that the overall sentence, made up of four separate cumulative sentences,was too high in light of the totality principle. The appeal Judge said it was high, butwithin range overall. The specific starting points for each offence were not addressed.There were no separate uplifts for aggravating features personal to the offender, sothese must have been built into the starting point. The offender had a significantcriminal history and the offending occurred while on bail. On appeal, the Court said,"while the particular offending was not necessarily serious itself, the conductdemonstrated a contempt for the Court", and "it was necessary to impose a stern prisonsentence to meet sentencing goals".27[68] In my view the appropriate starting point, in order to reflect the criminality ofthe offending and to distinguish it from similar offending where a firearm is alsoinvolved, is six months imprisonment. With the one month uplift for possession of aknife that results in an overall sentence of seven months imprisonment.[69] The Judge made no error in imposing home detention rather than communitydetention or community work. The sentence was intended to deter, and homedetention adequately meets that objective. A final sentence of three months two weekshome detention is the appropriate outcome.D. DISPOSITION[70] The appeals against conviction are dismissed. The appeal against sentence isallowed. The sentence is quashed and replaced with one of three months two weekshome detention..Nicholas Davidson JSolicitors:K L Chalmers, Barrister, ChristchurchRaymond Donnelly & Co, Christchurch27 Tamepo v Police, above n 26, at [17] and [19].