NZ POLICE v CRANCH [2022] NZHC 461

NZ POLICE v CRANCH [2022] NZHC 461 [15 March 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-367[2022] NZHC 461BETWEEN NEW ZEALAND POLICEAppellantAND ANDREW JAMES CRANCHRespondentHearing: 7 March 2022Appearances: DG Johnstone and J Lee for the Appellant JS Kovacevich for the RespondentJudgment: 15 March 2022JUDGMENT OF FITZGERALD JThis judgment was delivered by me on 15 March 2022 at 12.30pmRegistrar/Deputy RegistrarDateSolicitors: Meredith Connell, AucklandTo: J Kovacevich, AucklandIntroduction[1] The appellant appeals against a sentence of nine months' home detention imposed upon the respondent, Mr Cranch, in the North Shore District Court on 6 July 2021 in respect of the following charges: 1(a) unlawful possession of a prohibited firearm; 2(b) unlawful possession of a pistol;3(c) unlawful possession of a prohibited magazine; 4(d) unlawful possession of explosives (ammunition); 5(e) unlawful possession of a non-prohibited firearm; 6 and(f) possession of methamphetamine. 7[2] The appellant says that the starting point adopted by the District Court Judge of 24 months' imprisonment was inappropriately low, and an appropriate starting point would have been in the vicinity of three and a half to four years' imprisonment. The appellant does not take issue with the discounts adopted in the District Court. But it says that had an appropriate starting point in the order suggested been adopted, a sentence of home detention would not have been available, and that a sentence of imprisonment was the only appropriate sentence in any event. It asks this Court to sentence Mr Cranch on appeal to a sentence of imprisonment.1 New Zealand Police v Cranch [2021] NZDC 13578 [Sentencing notes].2 Arms Act 1983, s 50A (representative). Maximum penalty five years' imprisonment.3 Arms Act 1983, s 50(1)(a). Maximum penalty three years' imprisonment and/or $4,000 fine.4 Arms Act 1983, s 50B (representative). Maximum penalty two years' imprisonment.5 Arms Act 1983, s 45(1) (representative). Maximum penalty four years' imprisonment and/or $5,000 fine.6 Arms Act 1983, s 45(1) (representative). Maximum penalty four years' imprisonment and/or $5,000 fine.7 Misuse of Drugs Act 1975, s 7(1)(a) and (2). Maximum penalty six months' imprisonment and/or $1,000 fine.[3] Mr Cranch opposes the appeal. His counsel, Mr Kovacevich, submits the starting point and end sentence adopted by the District Court Judge were not manifestly inadequate, including because of assistance Mr Cranch gave to the Police shortly before his sentence indication hearing in the District Court. 8 Mr Kovacevich further submits that it would be inappropriate for this Court to impose a sentence of imprisonment on appeal in any event, highlighting the courts' reluctance to do so when a non-custodial sentence was imposed at first instance. Mr Kovacevich says that this Court should be even more reluctant to interfere with the sentence imposed by the District Court, given the prosecutor's "active acquiescence" in that sentence. In this context, Mr Kovacevich notes that the starting point of 24 months' imprisonment adopted by the District Court Judge had in fact been proposed by the prosecutor, whereas Mr Cranch had proposed a starting point of 24 to 36 months' imprisonment. Finally, Mr Kovacevich submits that the injustice of now imposing a sentence of imprisonment is further exacerbated by the fact that as at the date of the appeal hearing, Mr Cranch has served eight out of the nine months of his sentence of home detention.Procedural background[4] This sentence appeal has had a convoluted procedural background.[5] Mr Cranch was sentenced in the District Court on 6 July 2021, following a sentence indication given on 25 May 2021 (which Mr Cranch accepted that day). The sentence appeal was filed on 3 August 2021. It was first called in this Court on 20 August 2021 and was allocated a hearing date of 5 October 2021.[6] Shortly before the appeal was due to be heard, however, Mr Cranch's submissions were filed and indicated that he wished to advance an argument that there had been an abuse of process. Mr Cranch accordingly sought an adjournment of the appeal hearing in order to prepare and file an affidavit setting out the grounds of the alleged abuse. Relevantly for matters discussed later in this judgment (see [79] below), the appellant did not oppose the application for an adjournment.8 Mr Cranch provided a written statement to the Police the day before his sentence indication hearing.[7] The Judge who was to have heard the appeal on 5 October 2021, Duffy J, nevertheless had the matter called on that date to hear from counsel on the abuse of process point. In a minute issued later that day, her Honour noted that the prosecutor had in fact suggested the 24 months' imprisonment starting point, and observed that it was therefore "unusual" that there would now be an appeal brought against sentence. She stated that either the prosecutors in the District Court had erred in their assessment of the starting point to be adopted, or: another possibility, alluded to by Mr Cranch's counsel, is that there was co- operation with police from Mr Cranch and this caused police to support a more lenient sentence than might otherwise have been expected. In such circumstances, Mr Cranch contends it would now be an abuse of process for Police to appeal against the sentence imposed in the District Court.[8] Duffy J noted that the officer in charge had provided an affidavit saying there was no assistance from Mr Cranch. The Judge noted that if Mr Cranch wanted to pursue the argument that he did co-operate with Police, and in return Police advocated for a lenient sentence, "full evidence to support [that] argument should be provided to the Court". Duffy J accordingly made timetable orders for Mr Cranch to file an affidavit addressing those matters, and for the appellant to file any evidence in response.[9] As it transpired, by the time of the sentence appeal hearing before me, 9 a full day had been allocated for the hearing, and in addition to Mr Cranch, five police officers (three being the prosecutors involved in Mr Cranch's sentencing in the District Court) were due to give evidence and to be cross-examined.[10] At the outset of the hearing, I raised with counsel whether it was necessary for the witnesses to give evidence. I noted the following from my review of the papers:(a) The first issue to be determined on the appeal was whether the 24 months' imprisonment starting point adopted in the District Court fell below the available range. That issue did not turn on the evidence filed.9 The hearing having been further adjourned due to COVID-19 restrictions and difficulties in Mr Cranch giving evidence remotely from his home detention address.(b) The next question was what discounts ought to have been available to Mr Cranch. In that context, I noted that the prosecutors' affidavits confirmed that Mr Cranch's co-operation with the Police had not been put before the District Court at sentencing (at least by the prosecution). There was no dispute, however, that Mr Cranch had provided a statement to the Police shortly before his sentence indication hearing, and a copy was available to me on the appeal. I was accordingly in a position to determine what, if any, discount ought to be given for such assistance.(c) Further, in the event I were to conclude that the end sentence in the District Court was manifestly inadequate, the next issue for determination was what, if anything, should this Court do on the appeal. Again, this did not turn on the evidence filed.[11] Having taken instructions from Mr Cranch, Mr Kovacevich confirmed that he did not wish to cross-examine any of the Police witnesses. Mr Johnstone confirmed that he wished to briefly cross-examine Mr Cranch, which he did. I discuss later in this judgment any aspects of that cross-examination which I consider relevant to the appeal.[12] The balance of this judgment is structured as follows:(a) I first set out the factual background to Mr Cranch's offending.(b) I then summarise the District Court sentencing decision.(c) I then address the legal principles applying to this appeal.(d) I then summarise the parties' respective submissions.(e) I then set out my assessment of whether the sentence imposed in the District Court was manifestly inadequate.(f) Finally, I consider what, if anything, this Court should now do on the appeal.Factual background[13] On 16 October 2020, Police executed a search warrant at an address occupied by Mr Cranch and his family. The Police located 22 firearms at the property, 19 of which were classified as military style semi-automatic (MSSA) firearms. MSSA firearms were prohibited following amendments made to the Arms Act 1983 in April 2019 (in light of the Christchurch Mosque shooting). Also found at Mr Cranch's home were four upper receivers and three lower receivers, which when combined would have resulted in three further MSSA firearms. The firearms were concealed throughout the property in various hiding places, such as being concealed in a wall cavity. A large quantity of ammunition was also found at the address, including several high capacity firearm magazines. 10 Police also located approximately four grams of methamphetamine in the garage.[14] When spoken to by Police, Mr Cranch admitted possession and knowledge of the firearms. The summary of facts before the Court for the sentence indication hearing recorded that Mr Cranch told Police that he "did not own the guns and was looking after them for other people" (emphasis added). 11[15] At the hearing before me, there was some dispute in the evidence filed on the appeal as to whether Mr Cranch was looking after the firearms for only one person (as set out in his affidavit) or up to three persons (as recorded in contemporaneous notes taken by one of the officers attending the search at Mr Cranch's house on 16 October 2020). Irrespective of this, however, the sentencing in the District Court had proceeded on the basis of the agreed summary of facts which recorded the position as10 This was said to exceed 1000 pieces of ammunition in total, or even as many as 2500 rounds of ammunition.11 This is taken from a summary of facts which counsel for the appellant submitted was preparedafter the sentence indication hearing but before sentencing itself. However, the Police prosecutor who prepared the submissions for the sentence indication hearing said in her affidavit that the summary of facts annexed to her submissions (as exhibit JC-2) was that upon which the sentence indication proceeded, and which includes the explanation given by Mr Cranch recorded at [14] above. This appears to be correct, given the Police sentence indication hearing submissions refer to 22 firearms being located at Mr Cranch's property, and not 25 firearms as referred to in an earlier summary of facts.set out at [14] above. Mr Cranch did not seek a disputed facts hearing. I accordingly proceed on the basis that the firearms were being stored by Mr Cranch for "other people", and possibly for up to three persons. For the avoidance of doubt, however, I do not consider whether it was for one person or three persons to be material to the issues I must determine on the appeal. On any view, Mr Cranch was knowingly storing a very large number of MSSA and other firearms for another person or persons. Mr Cranch must have known he was unlawfully in possession of the firearms, reflected by him having hidden them around his property.District Court decision[16] On 25 May 2021, Judge Fitzgibbon gave a sentence indication in which she adopted a global starting point of 24 months' imprisonment.12 She noted defence counsel's submission that an appropriate starting point was 24 to 36 months' imprisonment, and the prosecutor's view that an appropriate starting point was 24 months' imprisonment, adopting the latter. The Judge applied no uplift for Mr Cranch's previous firearms and drug related convictions, which she saw as historical. The Judge indicated a guilty plea discount of between 15 to 25 per cent, with further discounts potentially available at sentencing. This resulted in an adjusted starting point of 19 months' imprisonment. On this basis, the Judge indicated that an electronically monitored sentence would likely be available.[17] I interpolate to observe that this indication was consistent with the prosecutor's submissions, which suggested that a 20 per cent discount ought to be available for a guilty plea, and that "the end sentence is likely to trigger consideration of [an] electronically monitored type sentence".[18] The transcript of counsel's oral submissions before the District Court has been made available on the appeal. It records Mr Kovacevich referring to Mr Cranch having "co-operated with the Police", that he had "provided to her Majesty's Police a statement", and there would ordinarily be a "brown envelope" procedure. 13 There is no suggestion, however, that this procedure was adopted in this case, or that the Judge12 New Zealand Police v Cranch DC North Shore CRI-2020-044-3231, 25 May 2021.13 Prescribed by the Criminal Procedure Rules 2012, r 5A.7.in fact took any assistance into account. 14 Foreshadowing the parties' submissions below, counsel for the appellant, Mr Johnstone, submitted that given the limited assistance given by Mr Cranch "did not go anywhere", no discount was warranted in any event. Mr Kovacevich submitted that a discount of around 10 to 20 per cent would have been appropriate. I return to this topic later in this judgment.[19] Returning to the chronology, following the sentence indication, Mr Cranch accepted that indication and guilty pleas were entered.[20] The Judge proceeded to sentence Mr Cranch on 6 July 2021. She adopted her sentence indication of 19 months' imprisonment, though did not elaborate on her reasoning for adopting the starting point or the discounts applied. The Judge considered the contents of a Provision of Advice to Courts (PAC) report. The report noted that Mr Cranch had co-operated with Police (though gave no details in that regard), acknowledged his poor decision making and presented as remorseful. 15 The report therefore recommended a sentence of home detention. The Judge adopted that recommendation as the most appropriate (and least restrictive) sentence in the circumstances. Adopting the indicated end sentence of around 19 months' imprisonment, the Judge sentenced Mr Cranch to nine months' home detention.Legal principles[21] The appeal is brought pursuant to s 246(1) of the Criminal Procedure Act 2011. To succeed, the appellant must satisfy the appeal court that there has been an error in the imposition of the sentence and that a different sentence should be imposed. 16 In all other cases, the Court must dismiss the appeal. 17 In this respect, the Court will not simply substitute its own view for that of the original sentencing Judge.18 If the14 There not being, for example, a separate and confidential record made by the Judge of the reasons for any discount given, or not given, for assistance to the authorities, which is then available to the appeal court on a sentence appeal (a procedure suggested by the Court of Appeal inR v Hadfield CA337/06, 14 December 2006).15 Sentencing notes, above n 1, at [3].16 Criminal Procedure Act 2011, s 250(2).17 Section 250(3).18 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].sentence is within the range that can properly be justified by accepted sentencing principles, the Court will typically dismiss the appeal. 19[22] As noted, this is a Solicitor-General's appeal, to which some additional principles apply.[23] It is helpful first to refer to the Court of Appeal's judgment in R v Donaldson, in which Thomas J, delivering the decision of the Court, articulated the following general principles to be drawn from earlier appellate authorities: 20(a) First, a sentence should not be increased pursuant to a Solicitor- General's appeal unless it is clear that the sentence which was imposed is manifestly inadequate, or the Crown is able to point to some error in principle upon which the trial Judge acted.(b) Second, considerations which justify an increase in sentence must be more compelling than those which might justify a reduction, and the Court would only increase the sentence in "clear cut" cases. 21(c) Third, care must be taken to ensure that the Court does not override the sentencing Judge's discretion to take a merciful approach or to adopt a course calculated to achieve rehabilitation, particularly if the sentencing Judge has presided over the trial and therefore had the opportunity to see and hear the witnesses and make an assessment of the offender's culpability.[24] As to when a sentence will be considered manifestly inadequate, the Court inR v Wilson considered the following matters to be relevant: 22[41] Whether a sentence can be said to be manifestly inadequate turns first on the maximum sentence for the particular offence; then on a consideration of comparable sentences, to the extent that those are considered to be19 Tutakangahau v R, above n 18, at [36].20 R v Donaldson (1997) 14 CRNZ 537 (CA) at 549–550.21 At 549, citing R v Beaman CA177/82, 16 November 1982 at 7.22 R v Wilson [2004] 3 NZLR 606 (CA).appropriate; and above all, the focus is required to be on the totality of the offending and the culpability of the offender in the particular case.[25] Finally, even if a prosecution appeal is successful, the sentence will be adjusted by no more than the minimum extent necessary to remove the element of manifest inadequacy. 23Submissions on the sentence appealSubmissions for the appellant[26] Mr Johnstone notes that the Court of Appeal has emphasised on numerous occasions the seriousness with which the courts view unlawful possession of firearms, particularly when coupled with live ammunition. In R v Richardson, for example, the Court stated that "[e]very Court has a clear obligation to impose sentences which in unequivocal terms express society's condemnation of their availability because of the potential for danger from their possession." 24[27] Mr Johnstone further submits that following the Christchurch Mosque shootings in early 2019, Parliament issued a clear policy directive that possession of MSSA firearms was to be viewed very seriously. He says this is evident from the Government's firearm buyback scheme, implemented shortly after the Christchurch attack, and is also reflected in the 2019 amendments to the Arms Act, which saw most MSSA firearms classified as prohibited weapons. The maximum penalty for being in unlawful possession of a prohibited firearm was also increased from three to five years' imprisonment, and the penalty for possessing a prohibited part or magazine was also increased to two years.[28] With respect to the starting point of 24 months' imprisonment adopted by the District Court, Mr Johnstone acknowledges that there is no tariff judgment for firearms offending, given the level of culpability varies significantly from case to case. 25 He nevertheless submits that a number of factors are generally considered relevant to setting the starting point, including: 2623 R v Edwards (Note) [2006] NZSC 52, [2006] 3 NZLR 349 at [9].24 R v Richardson CA450/02, 25 March 2003 at [33].25 Torea v R [2011] NZCA 96 at [11].26 R v Lorigan [2012] NZHC 2249 at Appendix 2, [3].(a) the number of weapons;(b) the seriousness of the types of individual weapons;(c) the use to which the firearms have been put;(d) whether the possession of weapons is accompanied by other charges;(e) whether the weapon was in a state such that it was available and intended to be used immediately;(f) whether there was an expectation that the weapon would be used;(g) the degree of danger the weapons present to others;(h) whether the weapons were found with or without ammunition and whether the weapons were loaded; and(i) whether the offender has already had their licence to hold firearms revoked or holds firearms knowing that they would not be entitled to a licence.[29] Mr Johnstone was unable to identify any authorities where an individual was sentenced for possession of the number of firearms in issue in this case. However, he says previous cases suggest starting points between 18 and 36 months' imprisonment, where a combination of the above factors are present. Mr Johnstone referred in this context to the following cases in particular:(a) Manapori v New Zealand Police, in which Mr Manapori faced two charges of unlawful possession of a prohibited firearm, one charge of possession of ammunition (99 rounds), one charge of cultivating cannabis, one charge of supplying cannabis and one charge of driving while disqualified.27 A starting point of 30 months' imprisonment was27 Manapori v New Zealand Police [2020] NZHC 627.upheld on appeal, to recognise the combination of drug and firearms offending and the significant risk to the community.28(b) Gemmell v New Zealand Police, in which Mr Gemmell had pleaded guilty to theft and unlawful possession of two pistols, unlawful possession of ammunition, unlawfully taking a motor vehicle and reckless driving. 29 A starting point of 42 months was adopted in that case, to recognise the high risk of harm to the community, the fact that the firearms were loaded and readily concealable, and the fact that the pistols had been stolen from a Police patrol vehicle. 30(c) R v Clifford, in which Mr Clifford faced a large number of charges concerning the manufacture and supply of methamphetamine, alongside four charges for unlawful possession of 15 firearms secreted around his property. 31 Three of the weapons were restricted weapons, being two fully automatic assault rifles and one fully automatic submachine gun. Lang J considered that a starting point of "at least two to three years imprisonment" would have been warranted on the firearms charges alone. 32 Mr Johnstone notes that this case arose under previous firearms legislation which set a maximum penalty of three years' imprisonment.(d) Long v New Zealand Police, in which Mr Long faced three charges of unlawful possession of a firearm, unlawful possession of an explosive, unlawful possession of ammunition and unlawful possession of a pistol.33 Only one of the firearms was operational and Mr Long had no previous convictions for similar offending. However, Ronald Young J found that this was nevertheless "serious firearm offending" involving a "large collection of illicit firearms, and parts which could be used to repair or make other firearms together with a large collection of28 Manapori v New Zealand Police, above n 27, at [27]–[33].29 Gemmell v New Zealand Police [2021] NZHC 1292.30 At [33].31 R v Clifford [2012] NZHC 3534.32 At [34].33 Long v New Zealand Police HC Palmerston North CRI-2009-454-39, 8 October 2009.ammunition". 34 Mr Long claimed to be storing the firearms for others, a suggestion about which the Judge expressed some scepticism. Nevertheless, the starting point of two and a half years' imprisonment was reduced to 20 months' imprisonment on appeal. Ronald Young J agreed with the District Court Judge that home detention was not appropriate for a variety of reasons, including because the offending was very serious.(e) Martel v Police, in which Mr Martel faced one representative charge under the Arms Act for possessing three firearms, some 300 rounds of ammunition and magazines which he had deliberately concealed behind a trapdoor in his apartment. 35 Mr Martel claimed to be storing the bag in which the weapons were found for some associates, without being aware of the bag's contents. 36 The sentencing Judge adopted a starting point of 36 months' imprisonment. After a full guilty plea discount resulting in an end sentence of one year and eight months' imprisonment, the Judge declined to order home detention, considering it inappropriate given the clear need for deterrence and denunciation. That sentence was upheld on appeal. 37[30] Mr Johnstone says that it appears none of these authorities were referred to Judge Fitzgibbon. He suggests that Mr Cranch's offending bears factual similarity to that in Long and Martel but is more serious, given the sheer number of firearms and quantity of ammunition involved. Mr Johnstone submits that the fact the firearms were MSSA weapons is a further aggravating factor. Similar to the offending inClifford, the weapons were operational and deliberately concealed through Mr Cranch's home. Mr Johnstone says Mr Cranch's offending also shares aggravating factors with those identified in Manapori, including the presence of drugs.[31] On this basis, Mr Johnstone submits that the starting point of 24 months identified by the Judge was manifestly inadequate. This is said to be particularly so34 Long v New Zealand Police, above n 33, at [13].35 Martel v Police HC Hamilton CIV-2010-419-69, 4 October 2010.36 At [7].37 At [22]–[23].given that most of the above authorities were considered when the maximum sentence for unlawful possession of a prohibited firearm was three years' imprisonment. Mr Johnstone submits that a starting point of three and a half to four years' imprisonment would have been appropriate on the firearms charges, with an uplift of one month for the possession of methamphetamine charge, to be served concurrently.[32] Mr Johnstone accepts that particular caution is required when sentencing an offender to imprisonment on appeal where a non-custodial sentence had previously been imposed. 38 However, he submits that that result is justified where an error in principle warrants reconsideration of the entire sentencing exercise, and a sentence of imprisonment is the "inevitable consequence of correcting that error". 39 A deduction for time served on home detention is appropriate, with previous authorities recognising a deduction of one month longer than the period already served. 40[33] Mr Johnstone accordingly submits that Judge Fitzgibbon's sentence should be quashed and a new sentence imposed adopting a global starting point of between three years and six months' imprisonment and four years and one month's imprisonment. A guilty plea discount of 15 per cent, a discrete discount for remorse and a discount of four months for time served on home detention should be allowed.Submissions for Mr Cranch[34] As noted, Mr Kovacevich emphasises the submissions of both parties prior to the Judge's sentence indication on 25 May 2021, and maintains that a starting point of 24 to 36 months' imprisonment is appropriate. He also notes that there is no tariff or guideline judgment for firearms offending, and while the number of firearms located at Mr Cranch's property was higher than in some of the cases referred to, there was no suggestion Mr Cranch himself was using or trading in the weapons, rather than simply storing them for another person. In support of the proposed starting point, Mr Kovacevich refers to a number of firearms sentencing decisions in which non-38 R v Fidow [2013] NZCA 209 at [47].39 At [47].40 R v Tamatea [2012] NZCA 443 at [29], where a four-month discount was applied to recognise three months served on home detention; and R v Pene [2010] NZCA 387 at [20]–[21], where a five-month discount was applied for four months spent on home detention and 51 hours of community work.custodial sentences were upheld or imposed.41 I address those authorities later in this judgment (at [48] to [50] below).[35] Mr Kovacevich places considerable reliance on the Police submissions on the sentence indication, which, as noted, suggested a starting point of only 24 months' imprisonment. He submits that this starting point, as adopted by the Judge, was within range in all of the circumstances, including taking into account Mr Cranch's guilty plea, remorse and assistance to the Police.[36] In relation to assistance, Mr Kovacevich submits that an offender who provides assistance to the authorities will have that factor taken into account on sentencing, even though the co-operation does not itself mitigate the offender's culpability in relation to the offending. He submits that it is typical for credit to be given for co- operation where the defendant provides information that results in the apprehension of other offenders. 42 Such co-operation need not be in relation to the offending for which the defendant is being sentenced, 43 and the credit given should be "real and substantial".44 Mr Kovacevich submits that the Court must weigh up the extent and value of the co-operation.45 He accepts that a range of factors will be relevant including:(a) the nature and importance of the information;(b) the gravity of the crimes committed by the offender;(c) the value of the information in leading to the conviction of other offenders;41 Morgan v Police 13 September 1995, AP174/95 Wellington, Barker ACJ; Solicitor-General v Matoe [2004] NZHC CRI-2003-404-1331; Solicitor-General v Lyon [2006] NZHC; R v Miller[2008] NZHC Hamilton CRI-2007-419-138, 28 February 2008; Police v Wu [2008] NZHC; R v Flay HC Auckland CRI-2007-090-7023, 28 May 2009; R v Smith [2011] NZHC CRI-2011-409-91, 2 February 2011; R v Askin [2012] NZHC 1861; R v Brammall [2012] NZHC 3374; Fowler v R [2016] NZCA 233; R v Kane [2017] NZHC 340; R v Ohuka [2018] NZHC 3304; Elwin v Police [2019] NZHC 3258; Aspinall-Su'a v Police [2020] NZHC 3022.42 Mr Kovacevich refers to the decisions in R v Urlich [1981] 1 NZLR 310 (CA); andR v Krasoudakis (1996) 14 CRNZ 487 (CA).43 R v Accused (CA293/92) (1993) 10 CRNZ 397 (CA).44 R v Accused CA443/97, 4 March 1998 at 6.45 R v Accused (CA 349/89) [1990] 2 NZLR 316 (CA) at 319.(d) the fact that evidence has been or will be given against other offenders; and(e) the potential for retribution against or risks to the safety of the offender or their family.[37] Mr Kovacevich submits that the assistance given by Mr Cranch to the Police should be recognised by way of a credit independent of any other mitigating factors or discounts. He also refers to the fact that Mr Cranch's last conviction was in 2006 and he is currently serving the sentence of home detention without incident.[38] In all these circumstances, Mr Kovacevich submits that the end sentence adopted was not in error and the appeal ought to be dismissed.[39] Mr Kovacevich further submits that this Court ought not to intervene on the appeal in any event, given the manner in which the sentence in the District Court came about. In particular, he refers to a number of authorities in support of the following propositions:(a) the prosecutor actively acquiesced in the sentence adopted by the District Court Judge, and this is a material factor weighing against the Court intervening on appeal;(b) the prosecutor did not do all they could to assist the Court to avoid any alleged error, including that there was no attempt to correct the alleged error in the period between sentence indication and sentence hearing;(c) the fact that the appellant is now changing stance from that taken at sentencing is relevant to the appearance of justice when the appropriateness of the sentence is considered on appeal;(d) an appeal court ought to be hesitant to intervene when a community- based sentence was adopted at first instance, and where the appeal court is being asked to instead impose a custodial sentence;(e) that these factors are particularly relevant when Mr Cranch has now served eight out of the nine months of home detention imposed; and(f) drawing on practice in the United Kingdom, there should be a further significant discount even if this Court does propose to increase the sentence, to recognise the "double jeopardy" of an offender having to wait before knowing if their sentence is to be increased.Discussion – was the District Court sentence manifestly inadequate?[40] I have reviewed the authorities referred to me by both counsel. I am satisfied that the sentence imposed by the District Court Judge was manifestly inadequate, stemming largely if not wholly from the inappropriately low starting point adopted. My reasons follow.[41] First, I accept Mr Johnstone's submission that firearms offending generally is viewed seriously by the courts and the community more broadly. 46 This is particularly clear following the Christchurch Mosque shootings in early 2019 and the resulting amendments to the Arms Act, which included the maximum penalty for unlawfully possessing a prohibited firearm being increased. These legislative changes came into effect after many of the decisions referred to by counsel.[42] Second, and by reference to those factors set out at [28] above, there are a number of aggravating factors to Mr Cranch's offending:(a) The number of weapons. This is clearly the primary aggravating factor. Mr Cranch was in possession of 22 firearms, with the capacity to build a further three MSSA firearms with the parts available at his property.(b) The seriousness of the types of individual weapons. Of the 22 firearms located, 19 were prohibited MSSA firearms. The potential danger posed by the presence of these weapons, were they to find their way into the community, is obvious.46 R v Richardson, above n 24, at [33].(c) Whether the weapons were in a state such that they were available and intended to be used immediately. While there is no suggestion that the firearms were intended to be used by Mr Cranch, it is clear that by and large the firearms were fully operational.(d) Whether the weapons were found with or without ammunition. Mr Cranch had direct access to some 2,500 rounds of available ammunition.(e) Whether the offender had already had their licence to hold firearms revoked. Although the vast majority of the weapons in Mr Cranch's possession were prohibited, his firearms licence had in any event been revoked in 2006 following his previous convictions.[43] I do not regard Mr Cranch's claim merely to have been storing the weapons for another or others as materially reducing his culpability. As the evidence filed on the appeal demonstrates, it can often be difficult to test and resolve such suggestions. Further and in any event, Mr Cranch knowingly accepted custody of a large number of prohibited weapons and concealed them throughout his home. He was in possession of the prohibited firearms for the better part of a year without advising the authorities, despite the obvious danger to the community in the event the firearms passed into the wrong hands.[44] I accept, however, that factors such as the use to which the firearms have been put and whether there was an expectation that the weapons would be used are not relevant in this case. Nor are there the aggravating factors seen in many other firearms cases, such as the actual presentation of firearms, gang association or direct linkage between the possession of the firearms and other serious offending.[45] I accept that this case has some similarity to the offending in Long and Martel.I also accept Mr Johnstone's submission that Mr Cranch's offending is more serious than in those cases, due to the sheer quantity of firearms and ammunition involved. This exceeds the collection in Martel, for example, where a starting point of 36months' imprisonment was adopted in respect of three firearms and some 300 rounds of ammunition concealed behind a trapdoor. 47[46] In terms of the number of firearms, I accept this case is similar to the offending in Clifford, where 15 firearms were secreted around the defendant's property. 48 I do not accept, however, the characterisation of the present offending as similar to Cliffordor Manapori in relation to the presence of drugs. In Manapori, alongside firearm charges, the defendant faced one charge of cultivating cannabis and one charge of supplying cannabis. 49 In Clifford, the defendant also faced a large number of charges relating to the manufacture and supply of methamphetamine. In such cases, there is a tolerably clear link between the possession of the firearms and other serious unlawful activity, such as drug dealing. That is absent in this case. In particular, I do not accept Mr Johnstone's submission that the presence of methamphetamine in Mr Cranch's garage is an aggravating factor to the firearms offending. Only four grams of methamphetamine were discovered, falling squarely within the lowest band of offending outlined by the Court of Appeal in Zhang v R. 50 There is also no indication in the summary of facts or otherwise from which it could be inferred that Mr Cranch's possession of this small amount of methamphetamine was linked to his possession of the firearms.[47] The appellant also suggests that the decision in Gemmell may be of assistance in setting a starting point. I do not agree. The circumstances in Gemmell were unique. The Judge on appeal explicitly recognised that fact. 51 The defendant had been involved in a Police chase and was attempting to evade apprehension. At one point during the chase, he stole two Glock 17 pistols from the locked firearms safe of a Police patrol vehicle. This was an aggravating factor which required "a strongly deterrent response in sentencing". 5247 Martel v Police, above n 35.48 R v Clifford, above n 31.49 Manapori v New Zealand Police, above n 27, at [1].50 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].51 Gemmell, above n 29, at [33].52 At [33].[48] I have also considered the authorities referred to by Mr Kovacevich. 53 All but one were decided prior to the increase in maximum penalty, and thus must be viewed in that light. But even putting that aside, those authorities emphasise that unlawful possession of firearms will ordinarily attract a term of imprisonment. 54 Some also involved somewhat unique facts, such as it being accepted the offender had taken possession of the firearms for well-intentioned purposes, 55 or the components of firearms found could not have together constituted a firearm capable of use, 56 or the firearm was otherwise inoperable; 57 that there was an apparent legitimate though not lawful reason for the possession; 58 where imprisonment would have been appropriate but for the matter being a Solicitor-General's appeal and the delay since the offending; 59 where the firearms charges were subsidiary to other offending;60agreement that the end sentence should not be disturbed on appeal; 61 or factors personal to the defendant which supported a community-based sentence or a sentence of home detention. 62 In all cases, the offending involved possession of far fewer firearms than in this case.63[49] The most serious of the cases referred to by Mr Kovacevich is Aspinall-Su'a v New Zealand Police.64 That offending involved possession of four firearms, so considerably fewer than in this case, but involved a number of aggravating factors, such as the combination with other serious offending, offending while on bail and prior offending of a similar nature. The parties did not dispute a 34-month starting point, and the key issue was whether a discount ought to have been given to reflect matters raised in a s 27 cultural report (the Judge concluding there should have been). The offender in that case was also only 24 years old, which influenced the Judge's decision53 See [34] above. I put aside Morgan v Police HC Wellington AP174/95, 13 September 1995 as being dated and involving very different facts to the present case.54 See for example Solicitor-General v Matoe HC Auckland CRI-2003-404-1331, 24 June 2004; and Solicitor-General v Lyon HC Auckland CRI-2004-404-77-A, 11 July 2006.55 Solicitor-General v Matoe, above n 54.56 New Zealand Police v Wu HC Palmerston North CRI-2007-054-5821, 24 September 2008.57 R v Flay HC Auckland CRI-2007-090-7023, 28 May 2009; and R v Smith HC Christchurch CRI-2011-409-91, 2 December 2011 (the latter in which there was no ammunition present).58 R v Askin [2012] NZHC 1861; and R v Brammell [2012] NZHC 3374.59 Solicitor-General v Lyon, above n 54.60 New Zealand Police v Wu, above n 56; R v Askin, above n 58; and R v Brammell, above n 58.61 Elwin v NZ Police [2019] NZHC 3258.62 See for example R v Miller HC Hamilton CRI-2007-419-138, 28 February 2008; R v Flay, above n 57; R v Smith, above n 57; Fowler v R [2016] NZCA 233; and R v Ohuka [2018] NZHC 3304.63 Generally one to three firearms.64 Aspinall-Su'a v New Zealand Police [2020] NZHC 3022.to grant leave to apply for home detention (from an end sentence of 21 months' imprisonment).[50] To summarise, having considered the authorities to which Mr Kovacevich has referred, I consider Mr Cranch's offending to be more serious – largely given the sheer number of prohibited firearms and amount of ammunition found at his home, his knowledge and willingness to maintain possession of the firearms and ammunition, and the seriousness of the type of weapons found.[51] Against this backdrop, I consider a starting point of between three and a half to four years' imprisonment, as suggested by the appellant, to be appropriate. As this is a Solicitor-General's appeal, I adopt a starting point of three years and six months' imprisonment.[52] No uplift was adopted by the Judge for the charge of possession of methamphetamine. A one-month uplift, as suggested by the appellant, would have been appropriate. This takes the adjusted starting point to three years and seven months' (or 43 months') imprisonment.[53] Turning then to the available discounts. The Judge did not specifically address available discounts in her sentencing notes, which is unfortunate. Rather, she simply adopted her earlier indicated "end point" of 19 months' imprisonment, and converted that to nine months' home detention.[54] Mr Cranch had spent time on remand on electronically monitored (EM) bail, with what I understand to have been strict curfew conditions. This must be taken into account as a mitigating factor.65 There is no suggestion of any breach by Mr Cranch of the conditions of his EM bail. The exact length of time he spent on EM bail is not apparent on the file (or addressed in counsel's submissions), though it appears that this would have been for around eight months. For present purposes, I simply "round down" the 43 months' imprisonment to 40 months' imprisonment.65 Sentencing Act 2002, ss 9(2)(h) and (3A).[55] As to Mr Cranch's guilty plea, the Judge adopted a discount of 20 per cent. Mr Johnstone submits that no more than 15 per cent ought to have been adopted. I do not consider the Judge's adoption of 20 per cent to have been in error. Mr Cranch's guilty plea was not entered at the earliest possible opportunity, but it was nevertheless reasonably early and followed a request for a sentence indication.[56] I do not see anything in the materials that would have warranted any significant discount for remorse, at least in addition to the guilty plea discount. A discount of around five per cent might have been available, and for present purposes, I adopt that.[57] Turning then to the assistance which Mr Cranch gave to the Police. Having regard to the nature of Mr Cranch's assistance, and that it did not provide any material benefit to the Police, it would not have been an error in my view to have given no discount for it. The Court of Appeal's decision in R v Hadfield confirms that significant discounts are reserved for circumstances where material assistance is provided to the Police, such as giving evidence in co-offenders' trials and/or providing information which leads to the apprehension of other offenders. 66 In those circumstances, a "guilty plea/assistance package" can attract a discount of up to 60 per cent. Nevertheless, reflecting the fact that Mr Cranch did speak to the Police and provide a formal statement, a very modest discount of, say, five per cent would not have been in error. Again, given this is a Solicitor-General's appeal, I adopt that figure.[58] Applying these discounts to the adjusted starting point of 40 months' imprisonment results in an end sentence of 28 months' imprisonment. Such a sentence would have necessarily precluded a non-custodial alternative such as home detention. In those circumstances, the Judge's end sentence of 19 months' imprisonment, converted to nine months' home detention, was manifestly inadequate.Should the Court allow the appeal and re-sentence Mr Cranch?[59] This leads to the issue which I consider to be the crux of this appeal, and indeed the most difficult aspect of it, namely: having concluded that the District Court sentence was manifestly inadequate, what should this Court do now on appeal?66 R v Hadfield, above n 14.[60] I have given anxious consideration to this aspect of the appeal. In the event, I have concluded that it is not appropriate to interfere on appeal with the sentence imposed in the District Court. Before setting out my reasons for reaching this conclusion, I first set out the principles to be drawn from leading authorities on the approach to an appeal of this kind.Approach[61] It is again helpful to refer to the Court of Appeal's decision in R v Donaldson, which remains the leading authority for the proposition that on a Solicitor-General's appeal, the appeal court will generally be reluctant to substitute a non-custodial sentence with a custodial sentence. 67 Thomas J, who as noted earlier, delivered the judgment of the Court, stated that even if the Court determines the original sentence is manifestly inadequate, it will still be reluctant to interfere if this would cause injustice to the offender. Thomas J stated that "[i]n particular, the Court will be more disinclined to interfere where a community-based sentence has been imposed and conditions which were ordered have been complied with than where an inadequate custodial sentence is in issue."[62] Thomas J went on to state the following: 68These principles reflect the Court's appreciation of the harsh effect of substituting a non-custodial sentence for a prison sentence. In many circumstances there can be an element of inhumanity in doing so. An offender must initially look at his or her pending sentencing with considerable trepidation and, in many cases, intense hope that a non-custodial sentence will be imposed, especially when that prospect is encouraged by their counsel. If in real jeopardy they will almost certainly be overwhelmed with relief if they in fact receive a non-custodial sentence. Although they will in all probability be advised of the right of appeal statutorily vested in the Solicitor-General and be apprehensive, they must necessarily feel elated that the primary sentencing process has been completed and imprisonment has been avoided. Hope may convert itself into confidence that the Judge's sentence will be upheld. In the meantime they have been at liberty. They have rejoined their family or friends and returned to their work and daily routine. They may have undertaken treatment or therapy where that has been recommended or stipulated as a condition, and such treatment may well be proving successful. With an appreciation of these considerations any decision to reverse a non-custodial sentence and replace it with a term of imprisonment is not lightly undertaken. The Court, indeed, is most reluctant to do so.67 R v Donaldson, above n 20, at 550.68 At 550.[63] These principles were adopted and reinforced by the Court of Appeal inR v Tipene. 69 In that case, the prosecutor had acquiesced in the sentence imposed at first instance. The Court confirmed that the prosecutor's position at sentencing was only one factor to be taken into account on an appeal, though in some cases, it may be a matter of significance. The Court referred with approval to the following extract from the New South Wales Court of Appeal's decision in R v Allpass:70The Crown is not debarred, on appeal, from taking a stance different from that taken at first instance, but this Court, in the exercise of its discretion, is entitled to take account of the fact that, at first instance, the Crown acquiesced in the course that was taken by the sentencing judge the weight to be given to such a consideration depends upon the circumstances of the particular case,but it may be of considerable significance if the respondent was given a non- custodial sentence at first instance. Its weight may also vary with the degree to which the appellate court thinks the sentencing judge fell into error.(emphasis added)[64] The Court in Tipene accordingly stated that:[11] We agree with the view expressed in Allpass that the Crown is not debarred, on appeal, from taking a stance different from that taken at first instance. However the fact that the Crown has taken a particular stance, with which the sentence imposed is not inconsistent, is relevant to the appearance of justice when the appropriateness of the sentence is considered on appeal.There may be occasions when, notwithstanding a perception of injustice on the part of the Crown in changing its stance, an appellate Court may be unable to avoid the conclusion that there is an even greater perception that justice has gone wrong because the sentence imposed is so manifestly inadequate.(emphasis added)[65] The principles to be drawn from authorities such as Donaldson and Tipene have continued to be applied in more recent times. For example, in R v Johnson, Mr Johnson had been sentenced to nine months' home detention for sexual offending. On appeal, the Court of Appeal concluded that the minimum appropriate sentence available was two years and four months' imprisonment (which necessarily precluded a sentence of home detention).71 The Court nevertheless declined to re-sentence Mr Johnson to a term of imprisonment. It noted that Mr Johnson had already served five of the nine months of home detention. It stated that "[t]o carry out much of a69 R v Tipene [2001] 2 NZLR 577 (CA).70 R v Allpass (1993) 72 A Crim R 561 (NSWCA) at 565.71 R v Johnson [2010] NZCA 168 at [29].sentence of home detention, and to then be faced with removal to prison carries with it a 'distinct element of unfairness'". 72 Reflecting that aspect of the Court's decision in Tipene set out at [64] above, the Court observed that there will be cases where an appellate court is persuaded that the community confidence in the administration of justice requires the imposition of a sentence of imprisonment.73 Finding that the case before it was not such a case, the Court adopted the "alternative" of increasing Mr Johnson's sentence of home detention by three months (though noting that that still resulted in a manifestly inadequate sentence).[66] In R v Honan, the District Court Judge had sentenced Mr Honan to 12 months' home detention for possession of methamphetamine for supply and attempting to manufacture methamphetamine.74 On appeal, the Court of Appeal concluded that an appropriate end sentence was in the order of four and a half years' imprisonment.75Despite the disparity between the original sentence and that considered appropriate on appeal, the Court declined to interfere with the sentence. It noted that were it to quash the sentence of home detention and substitute a sentence of imprisonment, the substituted sentence would be in the vicinity of two years' imprisonment (having regard to the fact that it was a Solicitor-General's appeal and the time that Mr Honan had spent on home detention). Reflecting the earlier authorities, the Court concluded that:[41] This outcome should not be taken as an endorsement of the approach taken by the sentencing Judge. Rather, it reflects the circumstances of this particular case, the length of the likely substituted sentence, the lack of direct victims and the other considerations mentioned in Donaldson.[67] Research has disclosed only one case which bears hallmarks similar to the factors in this case, namely a manifestly inadequate sentence, where the appeal court is being asked to substitute a non-custodial sentence with a sentence of imprisonment,and the prosecutor acquiesced in the first instance sentence. That case is R v Leger, a decision of the Court of Appeal delivered not long after its decision in R v Tipene. 7672 R v Johnson, above n 71, at [33], citing R v Palmer CA332/03, 31 March 2004 at [45].73 R v Johnson, above n 71, at [34].74 R v Honan [2015] NZCA 94; and see R v Honan DC Blenheim CRI-2012-006-1533, 30 September 2014.75 Adopting a starting point of seven years' imprisonment, a six-month uplift for previous convictions and then applying significant discounts for mitigating factors and guilty pleas.76 R v Leger CA22/01, 17 May 2001.[68] In that case, Mr Leger had been convicted on one count of sexual violation by rape, and was sentenced to two years' imprisonment, suspended for two years, together with eight months' periodic detention, seven months' supervision and a $2,000 fine. At sentencing in the District Court, the prosecutor had advocated for a starting point of considerably less than eight years (eight years then normally recognised as being the starting point when an offender had been convicted of sexual violation by rape).[69] The Solicitor-General sought leave to appeal against sentence (being 35 days out of time in filing the appeal). The Solicitor-General submitted that the District Court's end sentence was manifestly inadequate, and that the prosecutor had erred in failing to make submissions on either a specific starting point or a term of imprisonment.[70] By the time of the hearing of the application for leave to appeal, Mr Leger had completed half of his community-based sentence. The Court concluded that the appropriate sentence could not have been less than five years' imprisonment, though Blanchard J (delivering the judgment of the Court) observed that "if the present appeal were to be permitted, a substantial further reduction would be necessary to reflect both the prosecutor's position at sentencing and the Crown's subsequent failure to file a timely appeal. There would also need to be a significant allowance for the portion of the periodic detention sentence already served." 77[71] Blanchard J then referred to the Court's earlier decision in R v Tipene and stated: 78 because of the prosecutor's attitude, the respondent had very good reason to believe, when the appeal period expired, that he was no longer in peril of imprisonment. There followed a substantial period of inexcusable delay (35 days). When an appeal application was eventually forthcoming, the respondent was not told that his periodic detention was in abeyance and has continued to attend in the belief that he must do so. There would in our view be an appearance of injustice if this Court, in the face of this unhappy combination of events, were to countenance the Crown's application, particularly when it involves a youthful offender. We are very conscious of the position of the complainant and aware of the strength of the appeal. But, in the end, it seems to us that the administration of justice is77 R v Leger, above n 76, at [28].78 At [31]–[32].better served by declining the application. In a situation in which the Crown wishes to change its stance, particularly where it previously appeared to be accepting of a non-custodial sentence and obviously did not see that as contrary to the interests of the complainant, the Crown must be expected to comply with the s388 time limit. Some allowance could have been made for the holiday period, but the time actually taken in this case was far too long.Application in this case[72] As noted at [60] above, I have concluded that it would be inappropriate to interfere with the sentence in this case. I have reached this conclusion for the following reasons.[73] First, the fact that the Judge fell into error in adopting a manifestly inadequate starting point was effectively brought about by the prosecutor's submissions on the starting point, and effective endorsement of a sentence of home detention. I therefore accept Mr Kovacevich's characterisation of the prosecutor's stance in this case as "active acquiescence".[74] Second, the prosecutor's approach was in the context of counsel for Mr Cranch submitting that an appropriate starting point would have been in the order of 24 to 36 months' imprisonment, and accordingly proposing an available starting point substantially higher than that proposed by the prosecutor, and indeed closer to what I have concluded would have been appropriate.[75] Third, the prosecutor's approach was compounded by the fact that it was adopted in the context of a sentence indication, that indication unsurprisingly being accepted by Mr Cranch. In those circumstances, were the sentence to be quashed on appeal, the appropriate course would likely have been for Mr Cranch's conviction also to be quashed, and Mr Cranch given the opportunity to withdraw his guilty plea in the District Court. This would effectively "wind the clock" back a very significant degree from where matters have reached by the time of this appeal.[76] Fourth, the prosecution did not, in the time period between sentence indication and sentencing, "correct" the earlier error in relation to the starting point.[77] Fifth, Mr Cranch does not have any significant recent criminal offending history, and has never before been sentenced to a term of imprisonment. To allow the appeal and require Mr Cranch to surrender into custody now would accordingly be a very significant matter and no doubt a shock for him.[78] Sixth, and importantly, Mr Cranch has now served eight out of the nine months of his sentence of home detention, with no suggestion of any breach. The position is accordingly more acute than in some of the authorities discussed, in which the offender had served only around half of their home detention or community-based sentence.[79] Seventh, and allied to the preceding point, I do not consider there to be any disqualifying delay on Mr Cranch's part in the appeal being heard. Affidavit evidence for the "abuse" point was perhaps not necessary, but there is no suggestion in my view of any tactical delay. Mr Cranch sought and the appellant did not oppose an adjournment of the October 2021 sentence appeal hearing. The appellant was also granted leave to, and provided time to file, affidavits in response to Mr Cranch's affidavit. COVID-19 restrictions then played their part in further delaying the hearing.[80] Eighth, and unlike in some of the authorities discussed, there are no direct victims of Mr Cranch's offending, whose interests would ordinarily be taken into account when determining if a new sentence should be imposed.[81] Finally, as noted, the "corrected" end sentence would be in the vicinity of 28 months' imprisonment. Nevertheless, the disparity between the District Court sentence (based on 19 months' imprisonment) and an end sentence within range (of 28 months' imprisonment) is not as disparate as seen in some of the authorities discussed.[82] Standing back and reflecting on all of these matters, I am satisfied that this is not one of those cases where the resulting perception of injustice to Mr Cranch is outweighed by an even greater perception that justice has gone wrong because the sentence imposed is so manifestly inadequate.[83] For completeness, I have considered whether it would be appropriate to add a further three months' home detention to Mr Cranch's sentence, taking his sentence to 12 months' home detention. I have decided not to adopt that course. It is ultimately somewhat arbitrary, given it remains an inadequate sentence. There is no direct victim of Mr Cranch's offending, whose interests might otherwise warrant such an approach. Importantly, and unlike in Johnson where this alternative was adopted, Mr Cranch has served virtually the entirety of his existing sentence. To extend that sentence by one third, when he is on the cusp of completing it, would not in my view be appropriate or fair.Result[84] The District Court's sentence was manifestly inadequate. Reflecting that this is a Solicitor-General's appeal, an appropriate end sentence would have been in the range of 28 months' imprisonment. A sentence of home detention would not have been available in those circumstances.[85] Despite this, and for the reasons given at [73] to [83] above, I have concluded that a different sentence should not be imposed.[86] The appeal is dismissed.___________________________Fitzgerald J