FELTS v NEW ZEALAND POLICE [2023] NZHC 1612

FELTS v NEW ZEALAND POLICE [2023] NZHC 1612 [27 June 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-232[2023] NZHC 1612BETWEEN MARK WILLIAM FELTSAppellantAND NEW ZEALAND POLICERespondentHearing: 19 June 2023Appearances: M Taylor-Cyphers for the AppellantO Southern for the RespondentJudgment: 27 June 2023JUDGMENT OF GORDON JThis judgment was delivered by meon 27 June 2023 at 3.30 pmRegistrar/Deputy RegistrarDate:Solicitors/Counsel:Crown Solicitor, ManukauM Taylor-Cypers, Barrister, AucklandIntroduction[1] The appellant, Mark Felts, pleaded guilty to one charge of unlawfully gettinginto a motor vehicle,1 one charge of burglary,2 and one charge of failing to carry outobligations in relation to a computer search.3[2] On 23 March 2023, Mr Felts was sentenced by Judge T V Clark at the ManukauDistrict Court to 20.5 months' imprisonment on the burglary charge with concurrentshorter sentences on the other two charges.4[3] Mr Felts now appeals his sentence on the basis that the Judge erred in failingto follow the sentencing methodology prescribed under Moses v R5 and imposed anuplift for prior convictions after applying discounts for personal mitigating factors. Aspart of that ground of appeal, it is argued that the uplift for prior convictions shouldoccur at step one of the two-step Moses methodology. Mr Felts also says that a greaterdiscount for personal mitigating factors should have been given at the second step. Aswell, Mr Felts says his sentence of imprisonment should have been converted to anelectronically monitored sentence at a full-time residential rehabilitative facility.[4] The respondent opposes the appeal on the basis that the Judge did not err inher application of Moses, either in methodology or in calculation; nor did the Judgeerr in the uplifts or discounts applied because she took a holistic approach tosentencing. The respondent also says the Judge was correct to conclude that a sentenceof home detention could not adequately meet the purposes and principles of sentencingin this case.1 Crimes Act 1961, s 226(2). Maximum penalty: two years' imprisonment.2 Section 231(1)(a). Maximum penalty: 10 years' imprisonment.3 Search and Surveillance Act 2012, s 178. Maximum penalty: three months' imprisonment.4 New Zealand Police v Felts [2023] NZDC 5879.5 Moses v R [2020] NZCA 296; [2020] 3 NZLR 583.The offendingUnlawfully getting into a motor vehicle[5] On 15 December 2022, the victim's vehicle was taken from an Auckland cityaddress. On the same day, registration plates were also taken from a vehicle parked atan Auckland city address.[6] On 21 December 2022, Police located the victim's vehicle displaying theregistration plates taken from the second vehicle. As Mr Felts was walking to thevehicle he noticed Police and quickly turned away walking back into the mall.Mr Felts was located in the mall and arrested by Police.[7] Upon arrest, Police located the keys for the stolen vehicle on Mr Felts as wellas a registration label in his pocket. The Police also found two photographs of Mr Feltswith the stolen vehicle displaying the stolen registration plates on CCTV footage.Burglary and failing to assist[8] At 1:00 am on 29 December 2022, Mr Felts and an unknown associate cutthrough a fence enclosing the loading zone area at the Bunnings Warehouse inTakanini. Once inside, they used wrapping plastic to cover two CCTV camerasmonitoring the area and broke into the building. They first left the scene, presumablyto monitor whether Police had been alerted, and then returned.[9] Mr Felts and the unknown associate entered the building and stole securitycameras and power tools. At this point the alarms activated and Police and securityattended the scene but found nothing. Mr Felts and the unknown associate returnedto the building some time later and stole further security cameras and power tools.Police and security were again alerted to the scene but found no signs of burglary. Theestimated value of the items stolen is $25,000.[10] On 30 December 2022, Police executed a search warrant at Mr Felts' homeaddress and pursuant to the search warrant, seized Mr Felts' phone as evidentialmaterial. Mr Felts failed without reasonable excuse to assist the Constable when hewas requested to do so.District Court sentencing decision[11] Judge Clark first declined to make any reparation order, noting Mr Felts'outstanding reparation figures to pay from previous sentencings and the likelihood thatBunnings would have insurance to recover the lost amount. The Judge commented onMr Felts' extensive criminal history of largely dishonesty offending, spanning from1998 to the present. She noted a propensity to commit dishonesty offences, inparticular, burglary offences.[12] On the starting point, Police submitted the appropriate starting point was 28 to32 months' imprisonment while defence submitted a starting point in the range of 18 to20 months. The Judge was referred to two cases, Elers v R6 where a starting point of16 months' imprisonment was upheld on appeal; and Waenga v Police,7 where astarting point of two years' imprisonment was upheld on appeal. Judge Clarkconsidered a starting point of 26 months' imprisonment was appropriate given theconsiderable premeditation and planning that went into the burglary, including thethought-out leaving and returning to steal further. The Judge was of the view thoseactions aggravated the offending beyond that in Waenga and noted the high value ofthe items stolen.[13] On the uplift for the other charges, Police submitted an uplift of four to sixmonths would be appropriate, which the defence accepted. Judge Clark gave an upliftof four months.[14] For personal aggravating features, namely the previous conviction history,Police sought an uplift of six months while the defence submitted that a three-monthuplift was all that was required. The Judge agreed that six months was not necessaryand gave an uplift of four months for previous convictions.[15] Judge Clark then allowed a 25 per cent discount for Mr Felts' guilty plea(agreed by the Police and defence) and a 20 per cent discount, as sought on behalf of6 Elers v R [2018] NZHC 497.7 Waenga v Police [2016] NZHC 1712.Mr Felts, for personal circumstances outlined in the s 27 report, his attempts atrehabilitation while in custody, and for his remorse and insight.[16] The Judge recognised Mr Felts' significant and ongoing substance abuse issueand acknowledged Mr Felts' background of emotional deprivation and violenceoutlined in his s 27 report, including a childhood blighted with physical abuse,domestic violence, crime, drugs, gangs and abandonment. She considered the s 27report demonstrated a very clear linkage and a causative link between Mr Felts'upbringing, his lifestyle as a young adult, and his current offending.[17] The Judge noted that the prison spoke highly of the good work Mr Felts hadbeen doing whilst in custody and appreciated his insight into his offending. However,Judge Clark did not give much weight to Mr Felts' intention as opposed to his actions,noting that despite his likely high motivation previously, he still fell into old habits.She acknowledged he had written two letters, one to the victims of the burglary andone to the Court, in which he did not make excuses but explained his circumstances.[18] The Judge was aware that Mr Felts had been provided with adverse medicalnews but was not able to give any real weight to it in the absence of medicalinformation.[19] Judge Clark also explained that she was not able to give an additional discountfor his significant substance abuse issues being drivers of his offending, in line withZhang v R,8 because of the lack of information provided on his addiction.[20] In the Judge's final calculations, she uplifted the 26 month's starting point onthe burglary charge by four months for the other offending, giving a global startingpoint9 of 30 months' imprisonment. She then took the 45 per cent discount off the 30-month global starting point, resulting in 16.5 months' imprisonment. To that, theJudge then added the uplift of four months for prior convictions giving the finalsentence of 20.5 months' imprisonment.8 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.9 Or to use the language in Moses v R, above n 5, the "adjusted starting point".[21] On whether the sentence of imprisonment should be converted to anelectronically monitored sentence at a residential rehabilitative facility, Judge Clarknoted that the pre-sentence report recommended a term of imprisonment. Despite thegood connection Mr Felts had made with the Clean N Soberside programme, she didnot consider his situation was one where a sentence other than a term of imprisonmentwould be appropriate.[22] The Judge felt compelled to reject the alternative sentence because of s 16 ofthe Sentence Act 2002, which provides that a court must not impose a sentence ofimprisonment unless it is satisfied that the sentence is imposed to hold the offenderaccountable, responsible, and to recognise the interests of the victims, and thosepurposes cannot be achieved by a sentence other than imprisonment. The Judge alsoconsidered the need to take into account deterrence and denunciation, as well as thesafety of the community. The Judge did not consider that those purposes andprinciples of sentencing could be achieved other than by imposing a sentence ofimprisonment.Law on appeal[23] This Court must allow the appeal if there is an error in the sentence imposedand a different sentence should be imposed.10 Otherwise, the Court must dismiss theappeal.11[24] The sentence must be manifestly excessive before the appeal Court maysubstitute its own views as to the appropriate sentence. The Court will generally notintervene where the sentence is within the range that can properly be justified byaccepted sentencing principles.12 Whether a sentence is manifestly excessive is to beassessed in terms of the final sentence given rather than the process by which it wasreached.1310 Criminal Procedure Act 2011, s 250(2).11 Section 250(3).12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA47 at [30].13 Ripia v R [2011] NZCA 101 at [15].Appellant submissions[25] Ms Taylor-Cyphers, counsel for Mr Felts, does not challenge the adjustedstarting point of 30 months' imprisonment. But she submits that the uplift for the priorconvictions needed to occur at the first step of the sentencing methodology, before thediscounts were deducted. Therefore, she says the adjusted starting point would havebeen 34 months' imprisonment, and when a 45 per cent discount (25 per cent for guiltyplea and 20 per cent for personal mitigating factors) is applied, the end sentence is18.7 months' imprisonment. This is approximately two months lower than the endsentence imposed.[26] Ms Taylor-Cyphers submits that a 25 per cent discount for all personal factorsshould have been given because Mr Felts meets every category of hardship sufferedas referred to in the s 27 report, from cultural and whānau dislocation, hardship, andaddiction. She also refers to his rehabilitative efforts.14 This is contrary to thesubmission on behalf of Mr Felts in the District Court (where Ms Taylor-Cyphers wasnot counsel) that a 20 per cent discount was appropriate for all personal mattersincluding those referred to in the s 27 report.[27] As evidence of Mr Felts' addiction, Ms Taylor-Cyphers points to his candiddescription of his drug use to the writer of the Provision of Advice to the Court (PAC)report and the information in the s 27 report. She says there is a real risk that Mr Felts'addiction impaired his rational choices and diminished his moral culpability, referringto Zhang v R.15[28] Ms Taylor-Cyphers submits that rehabilitation is to be recognised atsentencing, even if for no other reason than to incentivise a defendant to make effortsto reduce their risk of re-offending. She cites the Supreme Court in Berkland v R insupport.16 She also refers to the various rehabilitative courses that Mr Felts hascompleted as recorded in the memorandum from the Department of Corrections.14 In her written submissions Ms Taylor-Cyphers appeared to submit that addiction and effortstowards rehabilitation would each have warranted a 10 per cent discount over and above a 25 percent discount for factors in the s 27 report. In her oral submissions Ms Taylor-Cyphers clarifiedthat the 25 per cent discount now argued for was the total for all personal factors.15 Zhang v R, above n 8.16 Berkland v R [2022] NZSC 143; [2022] 1 NZLR 509.[29] Ms Taylor-Cyphers submits that a rehabilitative sentence is appropriate giventhe six months Mr Felts has spent in custody already and says this Court should convertthe sentence to an electronically monitored sentence at the residential rehabilitativefacility where Mr Felts has been offered a place, for home detention purposes.Respondent submissions[30] Mr Southern, counsel for the respondent, submits that the Judge did not err inher sentencing decision and the end sentence cannot be described as manifestlyexcessive. Mr Southern says the sentencing methodology of Moses was correctlyapplied.17[31] For the adjusted starting point of 30 months' imprisonment, Mr Southern saysthis was correctly calculated by the Judge. It was determined by features of theoffending, and not the offender. Mr Southern submits that the approach suggested byMs Taylor-Cyphers would be erroneous in law because it means an uplift for anaggravating feature personal to the offender would be applied at step one when itshould be applied at step two under Moses.[32] Mr Southern further submits that there are no discernible errors in the Judge'suplifts and discounts for Mr Felts' personal factors. He refers to commentary in Adamson Criminal Law which describes uplifts of up to 25 per cent for previous convictionsas "common",18 which would equate to a 7.5-month uplift here (as against the fourmonth uplift actually added). Mr Southern also notes from the commentary thatsignificantly higher uplifts for recidivist burglary offending have frequently been heldas appropriate, even up to 66 per cent. In Mr Felts' case, Mr Southern points to the122 prior convictions and 57 sentences of imprisonment, in particular, the significantnumber of burglary convictions. Therefore, Mr Southern submits that the four monthuplift (being 13.33 per cent of the adjusted starting point of 30 months) was generousgiven Mr Felts' extensive criminal history with serious dishonesty offending spanningover two decades.17 Moses v R, above n 5, at [45]–[48].18 Mathew Downs (ed) Adams on Criminal Law (online looseleaf ed, Westlaw) at [SA9.15(6)].[33] Mr Southern does not suggest that a greater uplift ought to have been added,but submits it counts against the submission that greater discounts ought to have beenmade. He refers to the Judge's sentencing notes where a largely holistic approach wastaken and says that the 20 per cent discount clearly included all the relevant personalmitigating factors.[34] Moreover, Mr Southern submits that any further adjustment would be onlyfive per cent and would accordingly constitute tinkering.19[35] Mr Southern also submits that the Judge was correct not to impose a sentenceof home detention, citing the Court of Appeal's comments in Doolan v R:20The relative weight to be given to the principles and purposes of the[Sentencing] Act is left to be determined by the sentencing judge in all thecircumstances of the case.[36] Mr Southern says that the Judge explicitly turned her mind to the question ofwhether a non-custodial sentence – specifically, at the Clean N Soberside facility –would adequately meet the purposes and principles of sentencing in this case. Hefurther submits that the Judge did not overlook Mr Felts' rehabilitative needs,evidenced by the special conditions she imposed which included attendance andcompletion of an alcohol and drug programme. The Judge correctly balanced therequirements of denunciation and deterrence with the rehabilitative needs of arecidivist offender.[37] Mr Southern finally submits that while the Judge did not state it explicitly, it isclear she took into account Mr Felts' poor history of compliance with community-based sentences (including electronic monitoring conditions).19 Cao v Police [2022] NZHC 2034 at [19].20 Doolan v R [2011] NZCA 542 at [38], cited more recently with approval in Birch v R [2022] NZHC2448 at [16].DiscussionUplift for previous convictions[38] Ms Taylor-Cyphers submits that the uplift for previous relevant offending isappropriately dealt with as part of fixing the adjusted starting point, which is at stageone of the Moses methodology. She says the uplift for previous like offending is anaggravating feature of the circumstances of the offending under stage one of Moses asopposed to an aggravating feature of the offender to be dealt with at stage two ofMoses.[39] I do not accept that submission. In Moses the Court of Appeal said:21[45] The following sentencing methodology replaces the three-stepmethodology established in this Court's judgment in Hessell at [14]. It alsoreplaces the Court's subsequent restatement in R v Clifford at [60].[46] A two-step methodology should be used:(a) the first step, following Taueki, calculates the adjustedstarting point, incorporating aggravating and mitigatingfeatures of the offence;(b) the second step incorporates all aggravating and mitigatingfactors personal to the offender, together with any guilty pleadiscount, which should be calculated as a percentage of theadjusted starting point.[47] Because the court fixes all second-step uplifts and discounts byreference to the adjusted starting point under this methodology, it makes nodifference to sentence length if the guilty plea discount is the last step in thesentence calculation. However, the sentencing judge should still quantify aguilty plea discount, for several reasons: the discount is justified in substantialpart by systemic and social considerations distinct from the offender'spersonal circumstances; the discount must be transparent, which aidspredictability; and the calculation allows others, including the offender andthe victim, to identify the sentence that would have been imposed but for theplea. It should be apparent that the discount does not exceed the maximum of25 per cent of the adjusted starting point.[40] It is clear from the judgment in Moses that the "adjusted starting point" is thestarting point determined by reference to all aggravating and mitigating features of theoffending. It does not include any aggravating and mitigating factors relevant to the21 Moses v R, above n 5.offender. Previous convictions are one example of aggravating factors that relate tothe offender.[41] Ms Taylor-Cyphers seeks to carve out a separate regime for the offence ofburglary so that prior convictions are taken into account in setting the starting point.She refers to the judgment of the Court of Appeal in R v Columbus,22 where the Courtreferred to an earlier judgment of the Court of Appeal in R v Lowe23 and said:[14] Thus, in sentencing for burglary as for other offences thecircumstances of the offending predominate when fixing the starting point.However, as this Court noted in Lowe, previous dishonesty convictions, whileaggravating personal circumstances, are often treated as components of theburglary starting point. The rationale is that, while prior dishonesty offendingis not of itself an element of the offence, it is directly relevant to assessing thedegree of the offender's culpability within the gravity of the particularoffending (ss 8(a) and 9(1)(j) Sentencing Act 2002) and to the purposes ofdeterrence and community protection (s 7(f) and (g)). [42] I do not accept that Columbus provides the necessary justification forMs Taylor-Cyphers' submission for the following reasons:(a) The Court of Appeal in Columbus was not intending to prescribe ageneral rule for all burglary sentencings where there are previousconvictions for burglary;(b) The rationale in the quoted paragraph could be said to apply to allclasses of offending where there is prior offending of the same type.Under Moses that is not the correct approach;(c) The previous offending in this case is not intrinsically connected to thepresent offending. One could perhaps envisage certain charges wherethere might be the necessary connection, such as a third or fourth breachof a protection order which makes the offending itself intrinsically moreserious such that the court might take that into account in setting thestarting point;22 R v Columbus [2008] NZCA 192.23 R v Lowe CA62/05, 4 July 2005.(d) The approach urged by Ms Taylor-Cyphers creates a risk of doublecounting if there is a mixed type of offending with corresponding mixedprevious convictions; and(e) As is well-understood, adding personal factors into the starting pointcreates issues with comparisons in later cases.[43] Ms Taylor-Cyphers submits in the alternative that if the Court does not take theprevious convictions into account in step one, they should be taken into account in thefirst part of step two. She submits that either way the 45 per cent discount (25 per centfor guilty plea and 20 per cent for personal factors) would then be calculated from theperiod of 34 months (30 months for the adjusted starting point and a four-month upliftfor prior convictions). Ms Taylor-Cyphers accordingly submits in the end it does notmatter whether the four-month uplift is added as part of step one or the first part ofstep two because the 45 per cent would be calculated as a percentage of 34 months.[44] That argument is flawed. As was said in Moses and as already set out above,24the Court fixes all second-step uplifts and discounts by reference to the adjustedstarting point (in this case 30 months not 34 months) under this methodology. Theeffect of the Moses approach is that the order in which the percentage uplifts ordiscounts are applied makes no difference to the end sentence. Discrete discounts oruplifts, that is those that are not expressed as percentages, do not cause discrepancies.25[45] In this case, Judge Clark applied the percentage discount (totalling 45 per cent)to the adjusted starting point of 30 months imprisonment. The Judge then imposed afixed uplift of 4 months imprisonment, which is effectively an uplift of about 13.33per cent, by reference to the adjusted starting point.[46] In terms of methodology, I do not consider the Judge was in error. I will discussthe level of the uplift and also the discount in the next section of this judgment.24 Moses v R, above n 5, at [47].25 At [10].Uplift and discountAmount of uplift[47] Mr Felts is 42 years old. His criminal history is lengthy. Prior to sentencinghe had 122 previous convictions and 57 sentences of imprisonment. Relevantconvictions are as follows:(a) fifteen convictions for burglary (for offending committed in 2021,2020, 2019, 2018, 2017, 2012 x 3, 2011, 2010, 2008 x 2, 2006, 2005and 2000); and(b) nine unlawfully taking, getting into or theft of motor vehicles (foroffending committed in 2019, 2018, 2017 x 3 and 1998 x 3).[48] As Mr Southern notes from the commentary in Adams, uplifts significantlyhigher than 25 per cent for recidivist burglars have been upheld as appropriate.Columbus is one example where an uplift of 12 months' imprisonment was consideredappropriate where the adjusted starting point was 18 months' imprisonment.26 Afurther example is Hetariki v New Zealand Police where the High Court consideredan adjusted starting point of 22 months for burglaries was appropriate and in thatcontext considered a 12-month uplift for prior convictions (15 burglary and 40 otherdishonesty offences) was warranted.27[49] I agree with the submission made by Mr Southern that a 13.33 per cent upliftwas generous given Mr Felt's history. It appears that the sentencing Judge thought sotoo as she said:28 For your previous conviction history, I do not agree that six months isnecessary. Obviously, I could uplift by that amount, but I do not consider thatit is appropriate in the circumstances of today's sentencing. I am simply goingto temper that and leave the uplift at four months for your previous convictionhistory.26 R v Columbus, above n 22, at [20].27 Hetariki v New Zealand Police [2015] NZHC 2461 although the sentence appeal was dismissedbecause the end sentence was not manifestly excessive, the High Court did say that it would haveincreased the adjusted starting point to one of 22 months.28 New Zealand Police v Felts, above n 4, at [31].Discount for personal mitigating factors[50] The Judge accurately summarised the contents of the s 27 report. She said:29 you have come from a background of emotional depravation [sic] andviolence, your childhood has been blighted with physical abuse, domesticviolence, crime, drugs, gangs and abandonment. She talks about your livedexperiences exposing you to childhood trauma and talks specifically aboutterrible abuses that you have suffered and terrible abuses that you havewitnessed and how you continued to carry all of that maemae (which is painand suffering) and whakama (which is shame) with you.[24] It is no surprise to me then that you have struggled throughout yourlife, Mr Felts, with substance abuse. I can see how attractive it would be tosimply "check out" and to prefer oblivion to your real life from time to time.[25] I will have no difficulty at all giving you a discount for the s 27 reportwhich I consider shows very clear linkage, and a causative link, between yourupbringing, your lifestyle as a young adult in particular, and this currentoffending.[51] The Judge also referred to the "good work" he had been doing while in custodyand mentioned his insight and his understanding of his problems.[52] Ms Taylor-Cyphers says all of this warrants a 25 per cent discount, rather thanthe 20 per cent, as sought on behalf of Mr Felts in the District Court and granted bythe Judge.[53] A comparison with the Supreme Court decision in Berkland is useful. TheCourt concluded that "Mr Berkland's upbringing involved multiple criminogenic riskfactors" and both his history of deprivation and trauma, and his addiction were driversof his offending.30 On rehabilitation and character, the Court considered thatMr Berkland's efforts at rehabilitation were "genuinely exceptional" and warranted a"significant sentencing response".31 The Court considered that a discount of 10 percent for his deprived background and addiction was appropriate, as was a 10 per centdiscount for his efforts at rehabilitation.3229 New Zealand Police v Felts, above n 4, at [23]–[25].30 Berkland v R, above n 16, at [156] and [158].31 At [160].32 At [162].[54] Accordingly, 20 per cent for all personal factors in Mr Felts' case is withinrange. Even if this Court were inclined to consider that a greater discount should havebeen given, I take into account first, as discussed above, that the uplift for previousconvictions could have been greater. Second, the 26-month starting point for theburglary was itself generous. For example, in Jackson v Police, but for a significantreduction for parity, the Judge considered that a starting point of about 30 months'imprisonment was appropriate for various beverages stolen from a warehouse.33 Thereis also the case of Lenihan v R where a starting point of 42 months' imprisonment wasimposed for a sophisticated burglary of a pharmacy with a getaway driver involved.34[55] As always, the Court on appeal is concerned with the end sentence. A greateruplift for prior convictions and a higher starting point would balance out a greaterdiscount for personal factors.[56] For all the above reasons I do not consider there is a basis for disturbing thediscount for personal factors on appeal.Should the Judge have imposed a sentence of home detention?[57] The Judge carefully considered whether a sentence of home detention shouldhave been substituted. She considered this not only in general terms but to theparticular facility Clean N Soberside. Setting out her reasons why home detentionwould not be appropriate the Judge said:35[29] The pre-sentence report, not surprisingly, Mr Felts, recommends aterm of imprisonment. I know that you probably arrived at court today hopefulthat I might take a step back and allow you to be released into the Clean NSoberside programme. It is good that you have made connection with thatprogramme. It is something that I encourage you to follow up when you areable, but yours is not a situation where I consider a sentence other than a termof imprisonment would be appropriate. That is for the reasons that I am aboutto explain to you.[36] Because your sentence does fall within range, Mr Felts, I do need toat least announce that I have considered whether or not you are someone whoought to be allowed to serve an electronically monitored sentence.33 Jackson v Police [2019] NZHC 1123 at [22].34 Lenihan v R [2020] NZHC 2543 at [43].35 New Zealand Police v Felts, above n 4.[37] What compels me to reject that as a sentencing option for you, is s 16of the Sentencing Act 2002 which provides that the Court must not impose asentence of imprisonment unless it is satisfied that that sentence has beenimposed for the following reasons: to hold you accountable, responsible, torecognise the interests of the victims of your offending, and those purposescannot be achieved by a sentence other than imprisonment. Bearing in mind,of course, I also need to take into account deterrence and denunciation as wellas the safety of the community.[38] I do not consider that those purposes and principles of sentencing canbe achieved other than by imposing a sentence of imprisonment, albeit areasonably short sentence of imprisonment.[58] In coming to that decision, the Judge did not put to one side Mr Felts'rehabilitative needs. That is apparent from the special release conditions she imposed:to attend and complete an appropriate alcohol and drug programme to the satisfactionof the probation officer, noting that may well be the Clean N Soberside programme;and to undertake and complete a short rehabilitative programme, perhaps involvingspecialist counselling.36[59] Accordingly, I consider in imposing the sentence she did, the Judgeappropriately balanced the statutory requirements of denunciation and deterrence withMr Felts' rehabilitative needs.[60] For all those reasons I consider the Judge was correct not to impose a sentenceof home detention.Result[61] The appeal is dismissed._____________________________Gordon J36 New Zealand Police v Felts, above n 4, at [40] and [41].