ELWIN v NZ POLICE [2019] NZHC 3258

ELWIN v NZ POLICE [2019] NZHC 3258 [13 December 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-442[2019] NZHC 3258BETWEEN LEWYS ELWINAppellantAND NZ POLICERespondentHearing: 9 December 2019Appearances: M Phillips for the AppellantC Stubbington for the RespondentJudgment: 13 December 2019JUDGMENT OF POWELL JThis judgment was delivered by me on 13 December 2019 at 3.30 pmRegistrar/Deputy RegistrarDate:[1] On 8 October 2019, the appellant, Lewys Elwin, was sentenced byJudge Roberts in the District Court at Waitākere to 18 months' imprisonment for thefollowing offending;(a) receiving over $1,000;1(b) unlawful possession of a firearm (representative);2(c) unlawful possession of ammunition (representative);3(d) burglary under $500;4(e) unlawful interference with a motor vehicle;5(f) and unlawfully in a building.6[2] Mr Elwin does not challenge the calculation of the sentence but appeals thedecision not to commute his sentence to one of home detention.[3] Due to recording issues no sentencing notes from the District Court areavailable in respect of this appeal. With the agreement of counsel, in the absence ofsentencing notes, the hearing proceeded as if Mr Elwin were to be sentenced de novo,without disturbing the end sentence of 18 months' imprisonment. As a sentence of18 months' imprisonment is a short sentence of under two years, there is no disputeMr Elwin was eligible for home detention.7 The issue to be determined is thereforewhether I should exercise my discretion to convert the end sentence of 18 months'imprisonment to home detention.1 Crimes Act 1961, s 246 and 247: maximum penalty of seven years' imprisonment.2 Arms Act 1983, s 45: maximum penalty of four years' imprisonment or a fine not exceeding$5,000.3 Section 51: maximum penalty of three years' imprisonment or a fine not exceeding $4,000.4 Crimes Act 1961, s 231: maximum penalty of 10 years' imprisonment.5 Section 226(2): maximum penalty of two years' imprisonment.6 Summary Offences Act 1981, maximum penalty of three months; imprisonment or a fine notexceeding $2,000.7 Sentencing Act 2002, s 15A(1)(b).Relevant background[4] On 12 September 2018, a burglary occurred in Swanson. Items taken from therelevant address included a motorboat, a vehicle, six firearms, a large quantity ofammunition, a motorbike, riding gear and tools. The items were valued atapproximately $60,000. On 13 September 2018, a search warrant was executed atMr Elwin's address in Massey and the items were located there, resulting in thereceiving and firearms charges.[5] On 11 November 2018, Mr Elwin and a co-offender entered the Waitakere CityFootball Club. Mr Elwin used a crowbar to force open the locked door. He and hisco-offender then used the shower facilities and stole two fruit juice drinks. Shortlyafter, Mr Elwin was seen on CCTV footage peering into and trying the door of avehicle parked in the clubroom car park. The events of 11 November 2018 resulted inthe burglary and unlawful interference with a motor vehicle charges.[6] Between 28 October 2018 and 29 November 2019, Mr Elwin gained entry toan address in Hobsonville by forcing open a lock on the back of the property. Onceinside, Mr Elwin squatted in the address for an unknown period of time, and wascharged with being unlawfully in a building.[7] Having pleaded guilty to this offending, and prior to being sentenced, Mr Elwinwas charged with 12 other burglary offences, alleged to have taken place while he wason bail for the present offending ("the new charges"). Despite apparently meeting thecriteria for s 12 of the Bail Act 2000 to apply, EM bail was granted by Judge Singhalthough no written decision was issued.[8] Mr Elwin has entered not guilty pleas to the new charges. Those charges arenow at case review.The position of the Crown[9] Ms Stubbington, on behalf of the Crown, in submitting that a sentence ofimprisonment is appropriate, places reliance on Turnball v Police which involvedsimilar dishonesty related offending.8 In that case, Gendall J found that the sentencingJudge was entitled to decline home detention either on the basis of the appellant'sattitude and personal characteristics, or on the basis of the offending having occurredwithin his home, being the proposed home detention address. Gendall J noted:9Judge Garland's decision to impose a sentence of imprisonment, rather thanhome detention, was not based on the appellant's lack of a suitable residence,but specifically on substantive matters including the appellant's attitude, thegravity of the offending and the fact it occurred within the appellant's home.[10] Although Ms Stubbington acknowledged that in this case the proposed homedetention address is not the same address as where the receiving offence occurred,Mr Elvin had nevertheless shown he was prepared to offend at his home.[11] Finally, Ms Stubbington pointed out that Mr Elwin could just as easily accessrehabilitation programmes from prison as from home detention; questioned whetherMr Elvin's new partner, also living at the proposed home detention address, isgenuinely pro-social; and whether Mr Elvin's lifestyle remains "unstable".Should home detention have been imposed?[12] Under s 15A of the Sentencing Act 2002, a sentence of home detention may beimposed only if the court is satisfied that the sentencing purpose cannot be achievedby any less restrictive sentence or combination of sentences, and the court wouldotherwise have imposed a short-term sentence of imprisonment. This accords with thegeneral principle of sentencing in s 8(g), which requires the court to impose the leastrestrictive outcome that is appropriate in the circumstances.[13] Home detention has been recognised as a sentence carrying a considerablemeasure of denunciation and deterrence, sufficient to supplant a short-term sentenceof imprisonment.10 However, even in cases where home detention is available, thesentencing purposes of denunciation and deterrence can sometimes be met by nothing8 Turnball v Police [2015] NZHC 147.9 At [20].10 R v Iosefa [2008] NZCA 453 at [41]; and Fairbrother v R [2013] NZCA 340 at [29].less than a sentence of imprisonment.11 Indeed, when determining whether a sentenceof home detention is appropriate, the offender's personal characteristics, demonstratedefforts towards rehabilitation and the likelihood of rehabilitative success are importantconsiderations.12 Ultimately, the Court is required to undertake an evaluative exercise.[14] In commencing that evaluation it is clear that there is force in Ms Stubbington'ssubmission that the present offending included offences from Mr Elvin's then home,and there is no doubt that much of Mr Elvin's offending at issue took place against avery unstable lifestyle. In addition, the provision of advice to the Court ("PAC") reportnotes that Mr Elvin lacked insight into his offending behaviour, the seriousness of hisoffending and the impact on the victims. Despite that the PAC report recommended acommunity based-sentence, namely one of supervision and community-detention.[15] The reason for this, as Ms Phillipps submitted on behalf of Mr Elwin, is thatMr Elwin has a limited criminal history which until the present offending was largelyconfined to minor dishonesty and drug related offending. Although Mr Elwin didcommit the receiving offence at his home, that is in fact the only such offending, andeven with regard to the new charges he faces those did not involve further receivingcharges or other offending at his home.[16] More broadly Mr Elvin has not previously received a sentence ofimprisonment, nor has he been sentenced to home detention. Until the index offendingthe most serious sentence imposed was 75 hours' community work. There was also anine-year gap in offending between 2006 and 2015. During this time it appearsMr Elwin was employed in various roles including as a landscaper and a café manager,but in 2015 he again became dependent on drugs and alcohol. Since the presentoffending Mr Elwin has, on the face of it, taken a number of steps to move away fromwhat Ms Phillipps described as an "unstructured" and anti-social lifestyle, moving inwith his parents before meeting his current partner, seeing a counsellor to address hisdepression and substance issues, and has now dictated a fulsome letter of apology forhis offending that has been placed before the Court.11 See, for example, R v Taiepa [2009] NZCA 120 (receiving a stolen vehicle where thecircumstances of the offending and the history and attitude of the offender afforded no realisticalternative).12 R v Ford [2008] NZCA 64; R v Hill [2008] 2 NZLR 381 (CA); and R v Hall [2008] NZCA 207.[17] With regard to the influence of Mr Elvin's partner, there is no evidence beforethe Court that she is a negative influence on Mr Elvin, and I note the address has nowbeen assessed as suitable on two occasions; when the EM bail was granted in respectof the new charges, and for the PAC report.[18] Finally, for completeness, while Mr Elwin also faces the new charges, theCrown acknowledges that these charges cannot be taken into account in determiningwhether to impose home detention as they remain unproven. To the extent the newcharges raise issues of risk of further offending such that they might render a homedetention sentence inappropriate that has been addressed by the fact that theDistrict Court considered Mr Elwin a suitable candidate for EM bail pending trial onthose charges.[19] Taken together, I do not consider there is anything to suggest Mr Elwin wouldnot be able to comply with an electronically monitored sentence of home detention,particularly given there was no issues with compliance with electronically monitoredbail to the same address after the new charges were laid. It seems evident thatMr Elwin is in need of pro-social support, structure and employment which he clearlyresponds well to, evident from his nine-year gap in offending whilst he was employed.I consider a sentence of home detention will best provide for Mr Elwin's reintegrationand rehabilitation into the community, whilst properly meeting the sentencingpurposes of denunciation and deterrence. Such a sentence also accords with thedesirability to keep offenders in the community as far as that is practicable andconsonant with the safety of the community.13[20] Accordingly, I consider that Mr Elwin's sentence of 18 months' imprisonmentbe commuted to one of home detention. I note that a condition that Mr Elwin continuewith employment throughout his sentence should be encouraged. Likewise that heattend a Community Alcohol and Drug Services (CADS) programme, asrecommended by the PAC report writer.[21] As early release does not apply to home detention, the maximum period ofwhich is 12 months, and taking into account the time Mr Elwin has spent in prison on13 Sentencing Act 2002, s 16(1).sentence awaiting appeal (approximately three months) I consider that Mr Elwin's endsentence be a period of 8 months' home detention.Decision[22] The appeal is allowed. The sentence of 18 months' imprisonment is substitutedwith a sentence of 8 months' home detention, to be served at the venue and on theconditions set out in the PAC report dated 3 October 2019._______________________________Powell J