NESBITT HIMIONA v NEW ZEALAND POLICE [2021] NZHC 1718

NESBITT HIMIONA v NEW ZEALAND POLICE [2021] NZHC 1718 [9 July 2021]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2021-463-000066[2021] NZHC 1718NESBITT HIMIONAvNEW ZEALAND POLICEHearing: 8 July 2021Appearances: J Howell and K O'Connor for the AppellantI Hayden for the RespondentJudgment: 9 July 2021JUDGMENT OF WALKER J[redacted as to bail address]This judgment was delivered by me on 9 July 2021 at 3 pmRegistrar/Deputy RegistrarIntroduction[1] Nesbitt Himiona pleaded guilty to one charge of unlawful possession of afirearm, on 28 April 2021.1 He was sentenced to eight months' imprisonment by JudgeHarding in the Whakatane District Court on 27 May 2021.2 He has now been incustody for six weeks and three days.[2] Mr Himiona appeals his sentence on the basis that the sentence ought to havebeen commuted to one of home detention. He sought leave to adduce an affidavitconfirming the consent of the occupants of the proposed address. The Crown sensiblydid not oppose leave. Accordingly, I grant leave.[3] The Crown opposes this appeal.Background[4] On 12 March 2021 at around 11.00 am, Police executed a Search Warrant at aresidential address in Whakatane. Mr Himiona was living at this address and was athome at the time the search was undertaken.[5] The Police located a .22 calibre Magtech model 7022 semiautomatic rifle fittedwith a telescopic sight. Inquiries confirmed that this rifle had recently been stolen in aburglary at another Whakatane address. When spoken to by Police, Mr Himiona statedthat he was holding the rifle for an "uncle" whom he would not name.[6] Mr Himiona is an associate of the Tu Mana chapter of the Black Power criminalgang and was wearing a Tu Mana Black Power t-shirt on the day of the search.[7] Mr Himiona accepted these facts and pleaded guilty.District Court decision[8] Judge CJ Harding noted that the pre-sentence report identified lifestyle,friends, associates and attitudes, including a sense of entitlement, as factors1 Arms Act 1983, s 45(1): maximum penalty 4 years' imprisonment or $5,000 fine.2 Police v Hinemoa [2021] NZDC 10461.contributing to the offending. The report also noted an admitted moderate to high levelof daily cannabis use and involvement with an entrenched gang lifestyle. The pre-sentence report recommended a sentence of imprisonment and release conditions.[9] The Judge accepted that Mr Himiona was an associate, rather than a gangprospect or member. He declined to accept that the firearm was intended forrecreational use. His Honour also noted that Mr Himiona had prior (relatively minor)convictions, none of which involved firearms.[10] Judge Harding reviewed the approach to sentencing for firearm offences,noting the strong need for deterrence. The Courts' public duty to deal sternly withsuch offending is reflected in Parliament's decision to increase the maximum penaltyfrom three to four years' imprisonment. With reference to R v Iti, the Judge furthernoted that unlawful possession of firearms is regarded as serious offending whichwould normally attract a sentence of imprisonment.3[11] His Honour set a starting point of 18 months' imprisonment, with a three-month deduction for Mr Himiona's youth (aged 21 at time of offending), and a full25% discount for an early guilty plea.[12] Judge Harding expressly declined to convert the end sentence of 11 months'imprisonment to a sentence of home detention. He determined that this would sendthe wrong message. Almost as a side wind he noted that the pre-sentence reportshowed that consent by the proposed occupants had not been obtained, although theoccupants had been present in Court The Judge also declined to grant leave to applyfor home detention.[13] Mr Himiona was sentenced on the basis that he declined to disclose the identityof the person for whom he was holding the firearm. However, Judge Hardingsubsequently recalled the sentence and then added a further discount. The issue ofhome detention was not revisited at recall. The end sentence was eight months'imprisonment.3 R v Iti [2011] NZCA 114.Legal principles for Appeal[14] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 ("the Act"). They must be determined in accordance with s 250of the Act. An appeal against sentence may only be allowed if this Court is satisfiedthere has been an error in the sentence and that a different sentence should beimposed.4 Although s 250 of the Act does not refer to "manifestly excessive," it is awell established principle in the appellate approach.5[15] As the Court of Appeal said in Tutakangahau v R: "[a] Court will not intervenewhere the sentence is within the range that can properly be justified by acceptedsentencing principles".6 Nor will the Court simply substitute its own view for that ofthe original sentencing judge.7[16] It is the end sentence which is important from the appellate court's perspective,not the method by which it was reached. In short, whether a sentence is manifestlyexcessive is to be assessed in terms of the sentence given, rather than the process bywhich the sentence is reached.8Home detention[17] Under the Sentencing Act, a Court considering the imposition of a sentence ofimprisonment must have regard to the desirability of keeping offenders in thecommunity as far as that is practicable and consonant with the safety of thecommunity.9 Further, a Court must be satisfied the sentence of imprisonment servesthe purposes of accountability, responsibility, denunciation, deterrence andcommunity protection, while providing for victim's interests.10 The Court must alsobe satisfied that no other sentence can achieve these purposes and be consistent withthe application of relevant sentencing principles.114 Criminal Procedure Act 2011, ss 250(2) and 253.5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].7 At [36].8 Repia v R [2011] NZCA 101 at [15].9 Section 16(1).10 Sections 7(1) and 16(2)(a).11 Sections 8 and 16(2)(b),(c).[18] A sentence of home detention is available as an alternative to a short-termsentence of imprisonment.12 A short-term sentence is defined as a determinate sentenceof 24 months or less.13 A Court may only impose a sentence of home detention if it issatisfied that the purpose or purposes for which the sentence is being imposed cannotbe achieved by any less restrictive sentence.14[19] In James v R, the Court of Appeal recorded that:15an appeal against a refusal to grant home detention does not provide anopportunity to revisit or review the merits ... It is a matter of judgment for thesentencing Judge to determine whether home detention is an adequateresponse to the seriousness of the offending.[20] In Doolan v R, the Court of Appeal considered that an appellate court hearingan appeal against the refusal to commute imprisonment to home detention must focuson the identification of error, having regard to the discretionary nature of thecircumstances.16 The margin of appreciation given to sentencing judges will besubstantial, although potentially less so if sentencing does not follow a trial at whichthe Judge has formed an educated appreciation of an offender's character.17Appellant's submissions[21] The appellant does not challenge the starting point, adjustments or the lengthof the end sentence imposed. The sole issue on appeal is whether a sentence of homedetention should have been imposed instead, or whether leave should have been givento apply for home detention.[22] In particular, Mr Howell and Ms O'Connor on behalf of Mr Himiona submitthat Judge Harding erred by failing to impose the least restrictive outcome appropriatein the circumstances or to consider Mr Himiona's personal circumstances and familybackground or a rehabilitative purpose.18 Instead, his focus on likely gang involvementcoloured the approach.12 Section 15A(1)(b).13 Sentencing Act, s 4 and Parole Act, s 4.14 Sentencing Act, s 15A(1)(a).15 James v R [2010] NZCA 206.16 Doolan v R [2011] NZCA 542 at [39].17 Aupouri v R [2019] NZCA 216 as to the margin of appreciation to sentencing judges.18 Sentencing Act, s 8(i).[23] In relation to the offending, Mr Howell submits there is no requirement toimpose an end sentence of imprisonment for a firearm offence. Rather, the principlein Iti v R is that a sentence of imprisonment is the starting point for firearmsoffending.19 He describes Mr Himiona's offending as at the lower end of the scale –the result of a stupid decision. He points to the fact that the rifle is not a prohibitedfirearm; no ammunition was found and no evidence was put before the Court linkingthe firearm to gang activity. Instead, inferences were drawn which led to anunjustifiable focus on a gang related undercurrent.[24] Counsel acknowledges Mr Himiona's cannabis habit and gang connections butsubmits that a rehabilitative approach to sentencing is appropriate where an offenderis on the cusp of more entrenched drug use or gang activity.[25] Counsel further submits that it is an acknowledged principle of sentencing thata young offender has better prospects of reform and rehabilitation. In R v Mahoni, theCourt of Appeal observed:20It should be noted that the principle is not founded solely on consideration foryoung persons; there is benefit to the community in ensuring that the chanceof rehabilitation is not shut out, and in reducing the prospect of a youthfuloffender emerging from prison a more hardened criminal than when he wentit.[26] In summary, Counsel submits that Mr Himiona's youth, personalcircumstances, supportive whānau and rehabilitative prospects, make a sentence ofhome detention palpably appropriate in his case.Respondent's submissions[27] Ms Heydon for the Crown submits that the Judge properly assessed theseriousness of offending and the risk posed to the community; in particular, theoffending was aggravated by the fact that the firearm was stored in a wardrobe withinreach of children residing at the property, had been stolen, was held for a person likelyto be a gang member or associate, and Mr Himiona is a gang associate. Comparable19 Iti v R [2012] NZCA 492.20 R v Mahoni (1998) 15 CRNZ 428 (CA) at 436.case law indicates that firearm offending connected to gang activity attracts a sentenceof imprisonment.21[28] She contends that the apparent (but mistaken) absence of the occupants'consent was not a determining factor when the report-writer recommended a sentenceof imprisonment and that the Judge had been generous in terms of applicable discountsfor youth and a guilty plea. She also contends that childcare responsibilities warrantinga further discount require detailed evidence of unusual hardship.22 Here, Mr Himionais not the primary caregiver to his children, his employment is seasonal and fixed termand imprisonment is unlikely to adversely affect his young family to an exceptionaldegree.Analysis[29] The crux of this appeal is the question of whether the sentence is one whichshould have been commuted to home detention. Therefore, the seriousness of theoffending and the offender's personal circumstances are only relevant insofar as theyinformed the Judge's discretionary decision not to impose a sentence of homedetention. But lest it be misunderstood, I agree with the Judge that firearms offencesare serious; they have the potential to damage the fabric of the community anddeterrence is a valid and critical objective for the public good.[30] However, I have concluded that there is an error in the sentence imposed andthis sentence should have been commuted. The error was to give deterrence suchpriority as to exclude the countervailing purposes of sentencing. My reasons are these.[31] First, Mr Himiona is clearly heading down a dangerous path because of hisassociates. Nevertheless, it remains worthwhile keeping him away from the prevailinggang culture in prisons. This was the approach in Tuwhangai v Police. Though MrHimiona is not a first-time offender, his relative youth makes him particularly21 Solicitor-General v Lyon HC Auckland CRI-2004-4040-77, 11 July 2006.22 Garnett v R [2010] NZCA 173.vulnerable to the wrong influences, as well as a better candidate for rehabilitation andreintegration.23 As Grice J said in Goodwin v Police:24Short sentences of imprisonment have proved to be the least successful inachieving sentencing principles, including because of the antisocialenvironment the offender is placed in.[32] Secondly, his family support and responsibilities are a factor. He has been ina long term relationship with his partner for eight years and they have two children.The children currently attend the Kohanga Reo at Taiwhakaea Marae. At the time ofhis arrest, Mr Himiona and his partner were in the process of moving out of hismother's house and relocating to separate addresses. Although they have decided tolive apart, they intend to continue to cooperate in the care of the children. Mr Himionawas planning to move in with his grandmother in Taiwhakaea, while his partner – whoworks in Opotiki - was relocating to Whakatāne. He has ongoing responsibilities as afather. He needs to step up to those.[33] Thirdly, it is desirable to keep (young) offenders in the community wherepossible to promote rehabilitation, provided these factors are not outweighed by theneed to protect the community. Mr Himiona clearly has respect for his grandmotherwho has consented to taking him in and supporting him. He told the pre-sentencereport-writer that "Nan keeps him in line".[34] Fourthly, he has never served home detention. It should not be regarded as asoft option, particularly for young people. It is a serious restriction on a person'sliberty, but at least keeps people out of prison and at a distance from the wronginfluences. This was his first time in prison and I hope it has motivated him to stayout of prison.[35] Fifthly, Mr Himiona's past offending is relatively minor and does not involvefirearms. There was no ammunition found with the firearm, or anywhere on theproperty, and there is no evidence that Mr Himiona planned to use the firearm himselffor any unlawful purpose.25 Neither was there cogent evidence of the gang associations23 Tuwhangai v Police [2020] NZHC 3428.24 Goodwin v New Zealand Police [2021] NZHC 1526; citing White v Police [2020] NZHC 684.25 Mr Himiona told the pre-sentence report-writer that he had been holding the firearm for aroundthree weeks before the search warrant was executed, and that he had agreed to hold it for anof the "uncle" although it is understandable that inferences to this effect were drawnby the Judge. Mr Himiona was open and candid with the report writer. He tookresponsibility. This is a positive sign.[36] Finally, while I acknowledge that Mr Himiona is not the primary caregiver ofhis young children, the fact that they can visit him at his grandmother's address if asentence of home detention is imposed will improve Mr Himiona's chances ofrehabilitation and social reintegration. It will also enable the children to maintain arelationship with their father during this period.[37] It is clear that the occupants of the proposed address are willing to support MrHimiona during his sentence and comply with the responsibilities this entails.Affidavits were provided to the Court to this effect. They had not been before thesentencing judge. Mr Himiona appears to have strong whānau support from the wahinein his family, who attended the sentence appeal. This influence is to be encouraged. Itrust that he will in turn respect them, particularly his grandmother, by complyingstrictly with the terms and conditions of his sentence. I urge him to be loyal to hiswhānau and not his associates. I also hope that he will honour his whānau by ensuringhe is a positive role model for his children.[38] The Court typically halves the sentence of imprisonment it would otherwisehave imposed when determining the length of a sentence of home detention. Bothcounsel for Mr Himiona and the Crown agree that should I commute the sentence thiswill be appropriate by way of term. However, the Court of Appeal has recognised that,"It does not automatically follow the appropriate term of home detention will be halfthe appropriate sentence of imprisonment in every case."26 The term of a homedetention sentence is to be fixed by reference to the purposes and principles of theSentencing Act and all the factors relevant to the offending and offender. In myassessment, a realistic chance at rehabilitation requires more than a period of homedetention of four months. I therefore propose to commute the sentence to one of homedetention for five months subject to deduction for time served.unidentified 'uncle', knowing that it had most likely been acquired unlawfully. He also stated thathe later purchased the gun himself, using cash, intending to use it for duck shooting. Judge Hardingdeclined to accept the latter comment.26 R v Bisschop [2008] NZCA 229 at [18].Conclusion[39] I allow the appeal. I quash the sentence of eight months' imprisonment andsubstitute it with a sentence of five months less credit for time spent in custody. Thehome detention to be carried out at [redacted]. This address has been approved astechnically suitable and its occupants deemed suitable.[40] The standard and special post sentence conditions referred to by the Judgeremain.[41] Mr Himiona is to be released into the care of the person or persons with whomhe will be residing or other family member. They are to travel by the most directpracticable route to the nominated address where Mr Himiona is to remain for theduration of sentence on the standard and special conditions set out in the pre-sentencereport, along with the following condition:(a) Not to associate with known gang members or prospects during thesentence period.[42] If there is any prospect of attaining employment or engaging in training, Iwould hope that is something Probation would consider approving.............................................................Walker J