MANAPORI v NEW ZEALAND POLICE [2020] NZHC 627

MANAPORI v NEW ZEALAND POLICE [2020] NZHC 627 [24 March 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000040[2020] NZHC 627BETWEEN TYNAN MANAPORIAppellantAND NEW ZEALAND POLICERespondentHearing: 23 March 2020Appearances: H Croucher for the AppellantH Watts for the RespondentJudgment: 24 March 2020JUDGMENT OF WYLIE J[Appeal against sentence]This judgment was delivered me on 24 March 2020 at 1:30 pm.Registrar/ Deputy RegistrarDate:Introduction[1] On 3 February 2020 Judge Blackie, in the District Court at Manukau, sentencedthe appellant, Mr Manapori, to 20 months' imprisonment in respect of a number ofcharges, namely:1(a) two charges of unlawful possession of a prohibited firearm (pumpaction shotguns);(b) one charge of possession of ammunition (99 rounds of live shotgunshells);(c) one charge of cultivating cannabis;(d) one charge of selling/supplying cannabis; and(e) one charge of driving while disqualified (third or subsequent).[2] Mr Manapori appeals against the sentence, arguing that it is manifestlyexcessive.[3] The appeal is opposed by the respondent.Factual background[4] On 20 August 2018, Mr Manapori was convicted of driving while suspended.Four months later, on 19 January 2019, Mr Manapori failed to stop, when he was beingfollowed by a police car with its red and blue lights activated. He was convicted anddisqualified from driving for six months from 25 July 2019. Two days later, onSaturday, 27 July 2019, at 1:40 am, Mr Manapori was driving a vehicle in Epsom. Hewas stopped by the Police for an unrelated matter. He explained that he was the soberdriver for friends and on his way to pick them up. Mr Manapori appeared before theCourt on the charge of driving while disqualified (third or subsequent) on 7 August2019. He was granted bail.1 Police v Manapori [2020] NZDC 1769.[5] One month later, on 6 September 2019, a property manager was in the processof evicting Mr Manapori from the home rented by him. She went to the house tochange the locks. She discovered a grow room and a number of cannabis plants in anoutside sleep house. She called the Police. They located 46 cannabis plants and 2.073kilograms of dried cannabis buds hanging from the ceiling in two separate rooms inthe sleep house. They also found two pump action shotguns in Mr Manapori'sbedroom, together with 99 live shotgun shells. When spoken to by the Police,Mr Manapori said that he had been growing cannabis for about a month-and-a-half forpersonal use, and that he had purchased the two shotguns and ammunition about amonth apart to protect himself from any harm.[6] The pump action shotguns were prohibited firearms pursuant to s 2A of theArms Act 1983, as amended in 2019.[7] Mr Manapori appeared before the Court on the various charges noted above on12 September 2019. He requested a sentence indication.[8] On 3 October 2019 Mr Manapori was given a sentence indication by JudgeBlackie. The sentence indication was structured as follows:(a) a starting point of 18 months for the charge of unlawful possession ofthe two shotguns; and(b) an uplift of 12 months for the cannabis offending, the possession ofammunition to acknowledge various previous convictions whichMr Manapori has accumulated (also for cannabis-related offending).The Judge indicated that adjustments might be made at sentencing. He did, however,advise that he would not be reducing the sentence to take into account Mr Manapori'sage (23 at the time of the offending), given that there was no nexus between theoffending and Mr Manapori's relative youth. He also indicated that he would giveMr Manapori a full discount of 25 per cent for guilty pleas, if the same were entered.[9] This indication would have resulted in an end sentence of 22-and-a-halfmonths' imprisonment in the absence of further reductions at sentencing.[10] Mr Manapori accepted the indication, and entered guilty pleas to the charges.[11] Mr Manapori appeared for sentencing on 3 February 2020.The District Court sentence[12] Judge Blackie recorded his view that the cannabis growing operation wassophisticated, and that Mr Manapori has previous convictions for cultivating anddealing in cannabis. He outlined the types of firearms and ammunition found, notingthat pump action shotguns are now prohibited. He expressed concern at the numberof rounds of ammunition found, and expressed the view that this was a particularlyconcerning aspect of the offending, because it indicated that the firearms were notsolely for the purpose of deterring others. He noted that the maximum penalty for thepossession of such items had been increased to five years. The Judge noted that thelegislative amendments require that a sentence that serves the purposes ofdenunciation and deterrence is required in order to keep the community safe.[13] The Judge adopted a total starting point of 30 months' imprisonment. Hereferred to the pre-sentence report, which recommended a community-based sentence.He expressed the view that that recommendation failed to take into account thelegislative changes to the Arms Act 1983. He did, however, acknowledge that thereport set out a number of positive points, namely that Mr Manapori is a relativelylaw-abiding citizen in his day-to-day activities, that he is responsible, in employment,and has community support. The Judge reduced the sentence given Mr Manapori'srelative youth (despite indicating that sentence indication stage that he would not doso) and taking into account his personal mitigating factors. He reduced the sentenceby 15 per cent for these factors to one of 26 months. He then reduced the sentencefurther, to allow for Mr Manapori's guilty pleas. This resulted in an end sentence of20 months' imprisonment.[14] The Judge declined to commute the sentence to one of home detention,observing that such a sentence would not be appropriate in Mr Manapori's case,because it would not satisfy the purposes of denunciation and deterrence.Appeals against sentence[15] The appeal is brought pursuant to s 244 of the Criminal Procedure Act 2011("the CPA").[16] Pursuant to s 250(2) of the CPA, the appeal must be allowed if there has beenan error in the sentence imposed, and a different sentence should have been imposed.In any other case, the Court must dismiss the appeal.[17] If an appeal is to succeed, an error must be identified. Where errors are found,the Court's assessment of the significance of the error will inform the decision whetheror not a different sentence should be imposed. If the Court is satisfied that a differentsentence should be imposed, then the appeal will be allowed. The focus on sentenceappeals is on whether or not the end sentence imposed was within range, rather thanthe process by which the sentence was reached. In a sentence appeal involvingmultiple offences, the key issue is whether the total sentence is available, and withinrange, rather than the method by which it was reached.2[18] An appeal against a refusal to commute a sentence of imprisonment to asentence of home detention is an appeal against the exercise of a fettered discretion.3The discretion of a sentencing Judge when determining whether to impose homedetention instead of imprisonment is wide.4 The Court of Appeal has noted as follows:[19] there is nothing in the Sentencing Act 2002 to suggest apresumption for or against commutation, either generally or for particulartypes of offence. The decision calls for the case by case exercise of judgmentagainst the statutory principles and purposes of sentencing. Those principlesand purposes sometimes point, as here, in opposing directions, meaning thatthe sentencing judge is called upon to assess whether home detention canrespond adequately to the seriousness of the offending. it can be verydifficult in a marginal case to articulate reasons for preferring one approach to2 Tutakangahu v R [2014] NZCA 279 at [27]-[36].3 Manikpersadh v R [2011] NZCA 452 at [12].4 Palmer v R [2016] NZCA 541.another. In consequence, the margin of appreciation extended to sentencingjudges is usually significant.(Citations omitted)Submissions[19] Ms Croucher, for Mr Manapori, argued that Judge Blackie erred, by:(a) not considering whether home detention would adequately denounceand deter Mr Manapori's offending;(b) not taking into account sentencing principles such as rehabilitation; and(c) not giving consideration to the desirability of keeping offenders in thecommunity as far as practicable, consonant with the safety of thecommunity.She argued these errors have resulted in a manifestly excessive sentence, and that asentence of home detention should have been imposed, as being the least restrictiveoutcome appropriate in the circumstances.[20] Ms Watts, for the Crown, submitted that Judge Blackie was correct to concludethat the seriousness of the offending was such that a sentence of imprisonment wasrequired to adequately discharge the purposes and principles of the Sentencing Act2002. She argued that the combination of a substantial cannabis cultivation and thesupply operation, together with two particular serious firearm charges were seriousoffending, which posed a danger to the community. She referred to variousobservations by the Court emphasising that the possession of firearms would normallylead to the imposition of prison sentence. She also referred to recent amendments tothe Arms Act, which have increased the penalty for the possession of firearms.Analysis[21] When considering whether to impose a sentence of imprisonment the Courtmust take into account s 16 of the Sentencing Act 2002. It provides as follows:16 Sentence of imprisonment(1) When considering the imposition of a sentence ofimprisonment for any particular offence, the court must have regardto the desirability of keeping offenders in the community as far as thatis practicable and consonant with the safety of the community.(2) The court must not impose a sentence of imprisonment unlessit is satisfied that,—(a) a sentence is being imposed for all or any of thepurposes in section 7(1)(a) to (c), (e), (f), or (g); and(b) those purposes cannot be achieved by a sentenceother than imprisonment; and(c) no other sentence would be consistent with theapplication of the principles in section 8 to the particular case.(3) This section is subject to any provision in this or any otherenactment that—(a) provides a presumption in favour of or againstimposing a sentence of imprisonment in relation to aparticular offence; or(b) requires a court to impose a sentence of imprisonmentin relation to a particular offence.[22] Judge Blackie did not expressly refer to s 16 but it is clear that he haddenunciation and deterrence in mind when he imposed the sentence of imprisonment,primarily because of the firearms charges.[23] Ms Croucher submitted that Judge Blackie failed to consider that whetherhome detention would adequately denounce and deter Mr Manapori's offending.[24] It was common ground that home detention is a significant sentence in its ownright. Sentences of imprisonment can be and have been quashed where the purpose ofdeterrence has been given complete priority without regard to any of thecountervailing purposes of sentencing. That does not, however, mean that a short termperiod of imprisonment must always be commuted to a sentence of home detention.That equally would be a too narrow view of the law. What is required is that thesentencing Judge makes a considered and principled choice between the two forms ofsentence – imprisonment and home detention – recognising that both serve theprinciples of denunciation and deterrence, and identify which of them better qualifiesas the least restrictive outcome to impose taking into account all the purposes ofsentencing.5[25] With respect to Ms Croucher, I do not accept that her submission is correct.The Judge expressly considered whether or not he should commute the sentence toone of home detention. He declined to do so, observing that such a sentence wouldnot be appropriate in Mr Manapori's case, and because it would not satisfy thepurposes of denunciation and deterrence.[26] In the circumstances of the present case, there were two types of criminalityinvolved – first the substantial cannabis cultivation and supply operation, andsecondly, the possession of two prohibited firearms, together with a large amount ofcompatible ammunition.[27] The Court of Appeal has on numerous occasions emphasised the seriousnesswith which the Courts view unlawful firearms, particularly where they are coupledwith live ammunition. By way of example, the Court of Appeal in R v Richardsonobserved that loaded firearms are an anathema within our community, and that everyCourt has a clear obligation to impose sentences which in unequivocal terms expresssociety's condemnation of their availability given the potential for danger from theirpossession.6 The Courts have been particularly concerned when firearms areassociated with drug-related offending. In R v Corner the Court of Appeal held thatin the absence of special circumstances, the possession of weapons such as sawn offshotguns will normally lead to the imposition of a prison sentence and the more so if5 Fairbrother v R [2013] NZCA 340.6 R v Richardson CA450/02, 25 March 2003 at [33] and see R v Fonotia [2007] NZCA 188, [2007]3 NZLR 388 at [40]; Torea v R [2011] NZCA 96 at [11]; R v McLean [2009] NZCA 465 at [24];Haggie v R [2011] NZCA 221 at [23].there is evidence to suggest that the use might have been contemplated in a criminalconnection.7 More recently, the Court of Appeal, in Perez v R said:8We agree with the submission that it has long been recognised that firearmsassociated with other criminal offending will attract a sentence ofimprisonment.The Court went on to say that the dangerous combination of drug offending orpossession of firearms must be denounced and deterred.9[28] In recent decisions of this Court, sentences of imprisonment have beenimposed rather than home detention for the possession of the firearms.10 Equally, thereare a number of cases where non-custodial sentences have been imposed.11 Each casedepends on its own facts.[29] I agree with Ms Watts that these various observations by the Courts arereinforced by the recent amendments to the Arms Act. In April 2019, the Act wasamended to define a prohibited firearm. Inter alia the definition extends to a pumpaction shotgun that is capable of being used with a detachable magazine, or a pumpaction shotgun that has a non-detachable tubular magazine that is capable of holdingmore than five cartridges. The penalty for being in unlawful possession of a prohibitedfirearm was increased to one of five years' imprisonment.[30] In my judgment, Mr Manapori's offending has various aggravating features:(a) the firearms were associated with drug-related offending;(b) Mr Manapori had two firearms;7 R v Corner CA291/87 and CA329/87, 17 March 1988 at [7].8 Perez v R [2015] NZCA 267 at [50].9 At [51].10 Rawell v Police [2019] NZHC 471 – 18 months' imprisonment – home detention declined; Martelv Police HC Hamilton CRI-2010-419-69, 4 October 2010 – home detention refused on the basisthat a custodial sentence was necessary to give effect to the objectives of denunciation anddeterrence; Waite v Police [2015] NZHC 585 - home detention refused.11 Fowler v R [2016] NZCA 233 – imprisonment inappropriate – insufficient evidence to suggestthat the defendant posed a risk – short conviction history – lack of violent offending – evidence ofgood character and nothing to suggest he posed a threat to the community; R v Askin [2012] NZHC1861 – non-custodial sentence sufficient to achieve the purposes of deterrence and denunciation;R v Brammall [2012] NZHC 3374 – offending attracted a sentence of 250 hours' community work.(c) both firearms were prohibited;(d) Mr Manapori also had a substantial amount of live ammunition; and(e) Mr Manapori was in possession of firearms, on his own explanation,for the purposes of protection.[31] In my judgment, deterrence and denunciation were the paramount sentencingprinciples. Are they best served by imposing a sentence of imprisonment? I am notpersuaded that Judge Blackie erred in his assessment that a sentence of imprisonmentwas required. Mr Manapori has a history of drug-related offending. He has previouslybeen sentenced to home detention for cannabis-related offending. Clearly thissentence did not deter him from re-offending. I accept that Mr Manapori has norelevant violence-related convictions, but the presence of the firearms marks asignificant escalation in his offending. Even on his own explanation it appears that hewas willing to use the firearms. Clearly public protection and the safety of thecommunity were in issue.[32] I accept that Judge Blackie did not refer expressly to sentencing principles suchas rehabilitation and that other relevant sentencing principles. It should not, however,be assumed that rehabilitation is precluded by a custodial sentence. Treatment isavailable directed at rehabilitating prison inmates.12 Further the Judge did reduceMr Manapori's sentence by four months to reflect his age, and his personalcircumstances. The Judge specifically noted that Mr Manapori is normally a relativelylaw abiding citizen, that he is responsible, in work, and enjoys community support.He also noted that Mr Manapori has finally enrolled himself in a drug treatmentprogramme. Moreover, the reduction in sentence was afforded to Mr Manapori,notwithstanding that he has previous relevant convictions, and Judge Blackie did notuplift the sentence to reflect those conditions nor the fact that the offending occurredwhilst Mr Manapori was on bail, nor to accommodate the driving while disqualifiedoffending. In my judgment, the discounts afforded to Mr Manapori – totalling justunder 15 per cent – coupled with a full 25 per cent discount for the guilty pleas, wereappropriate.12 R v Accused (CA499/97) (1998) CRNZ 480 (CA) at 497.[33] Accordingly, the appeal against sentence is dismissed.Wylie JSolicitors:Ms Crouchier, AucklandCrown Solicitor, Manukau