Aspinall-Su'a v Police
[2020] NZHC 3022
•16 November 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-387
[2020] NZHC 3022
BETWEEN CHRISTIAN ASPINALL-SU’A
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 16 November 2020 Appearances:
H G de Groot for the Appellant
H Benson-Pope for the Respondent
Judgment:
16 November 2020
ORAL JUDGMENT OF GAULT J
Solicitors / Counsel:
Mr H G de Groot, Barrister, Auckland
Mr H Benson-Pope and Mr J C Toebes, Kayes Fletcher Walker, Office of the Crown Solicitor, Manukau City
ASPINALL-SU’A v POLICE [2020] NZHC 3022 [16 November 2020]
[1] Mr Aspinall-Su’a appeals his sentence of two years and two months’ imprisonment imposed by Judge D J Harvey in the District Court at Manukau on 17 August 2020.1
[2] Mr Aspinall-Su’a pleaded guilty to the following charges on 19 June 2020: unlawful possession of a firearm (x 4);2 receiving (over $1,000);3 unlawful possession of an explosive;4 unlawful possession of ammunition;5 and possession of cannabis.6
The offending
[3] On 30 January 2020, Mr Aspinall-Su’a was sentenced to 18 months’ intensive supervision, on standard and special conditions. He had committed a number of offences between 6 June and 20 July 2019, including presenting a firearm at another person, unlawful possession of ammunition and possession of cannabis and methamphetamine. At the time of the offending related to the current appeal, Mr Aspinall-Su’a remained subject to that sentence.
February offending
[4] On 26 January 2020, a white VW motor vehicle with the number plate JKT762 was stolen.
[5] On 13 February 2020, Police observed a VW vehicle bearing registration plates WR9968 in Māngere. Mr Aspinall-Su’a was the driver. Police inquiries revealed the registration number did not match the VW vehicle and the true registration was JKT762.
[6] Police searched the vehicle and found one sawn down single barrel shotgun, one shotgun pistol and approximately 24 rounds of ammunition for the shotgun.
1 Police v Aspinall-Su’a [2020] NZDC 16448.
2 Arms Act 1983, s 45(1). Maximum penalty is a $5,000 fine and/or four years’ imprisonment.
3 Crimes Act 1961, ss 246 and 247(a). Maximum penalty is seven years’ imprisonment.
4 Arms Act 1983, s 45(1). Maximum penalty is a $5,000 fine and/or four years’ imprisonment.
5 Section 51. Maximum penalty is three years’ imprisonment and/or a fine not exceeding $4,000.
6 Misuse of Drugs Act 1975, ss 7(1)(a) and (2)(b). Maximum penalty is three months’ imprisonment and/or a fine not exceeding $500.
[7] After his arrest, Mr Aspinall-Su’a admitted he had bought the vehicle via Facebook for $2,500. He denied knowledge of the firearms and ammunition. Mr Aspinall-Su’a was charged on 14 February with receiving, unlawful possession of a firearm and unlawful possession of an explosive. He was admitted to electronically monitored bail (EM bail) on 6 March 2020.
March offending
[8] On 7 March 2020, the day after being released on EM bail, Mr Aspinall-Su’a absconded.
[9] On 20 March 2020, Police located and arrested Mr Aspinall-Su’a. He was at his sister’s address in Manurewa, where he had been sleeping on her couch. When the Police arrived, Mr Aspinall-Su’a attempted to conceal himself underneath a blanket on the couch. At his feet was a black backpack containing several personal effects.
[10] The bag was open, and part of a firearm was visible. Police searched the backpack and found a blank firing pistol which had been modified to fire live rounds. The magazine was loaded with one round. 1.36 grams of dried cannabis in a plastic snap lock bag was also found in the bag.
[11] Under the couch Mr Aspinall-Su’a had been sleeping on was a black laptop- type case. It contained a sawn-off, double-barrelled side-by-side shotgun. It was divided in two halves and able to be easily assembled back together. Accompanying the shotgun were twelve twelve-gauge shotgun shells.
[12]Mr Aspinall-Su’a denied knowledge of all these items.
[13] On 20 March, Mr Aspinall-Su’a was charged with possession of cannabis, unlawful possession of a firearm (x 2) and unlawful possession of ammunition.
District Court decision
[14] The Judge noted that Mr Aspinall-Su’a must have known the VW vehicle was “hot” when he purchased it.7 He did not comment on the receiving charge again.
[15] The Judge recorded Mr Aspinall-Su’a’s previous convictions for drug and firearm-related offending. He endorsed counsel for the respondent’s observation that firearm offending in South Auckland is a growing problem and firearms offending carries with it enormous potential for social harm.8 The Judge observed the striking similarities between the February and March offending.9 He was particularly concerned by the charge relating to the discovery of the sawn-off shotgun and commented that a weapon of that sort “can only be used for criminal purposes”.10
[16] However, the Judge accepted there was no suggestion Mr Aspinall-Su’a’s offending was gang-related. The Judge also accepted that given the amount of cannabis found was relatively small, there was no suggestion of drug-dealing. He convicted and discharged Mr Aspinall-Su’a on that charge.
[17] Counsel for the respondent suggested a starting point for the firearms offences of three years’ imprisonment. Defence counsel suggested a starting point of 18 months’ imprisonment. The Judge adopted a starting point of 22 months’ imprisonment for the March firearms offences and uplifted this by 12 months to reflect the February offending. This gave an adjusted starting point of 34 months’ imprisonment.
[18] The Judge then applied a discount of 25 per cent to reflect Mr Aspinall-Su’a’s guilty plea, which came at the earliest opportunity. This brought the sentence down to 25 ½ months’ imprisonment. But the Judge considered an uplift was necessary, as the March offending occurred while Mr Aspinall-Su’a was on EM bail. An uplift of one month was applied, resulting in a sentence of 26 ½ months’ imprisonment.
7 Police v Aspinall-Su’a [2020] NZDC 16448 at [2].
8 At [3].
9 At [6].
10 At [7].
[19] Mr Aspinall-Su’a’s counsel had suggested a cultural background discount was appropriate. The Judge declined to allow such a discount, stating that:11
… much of the information that is contained in [the cultural or background] report is well-known and quite common within the South Auckland area. Familial deprivation, lack of boundaries, lack of education, and matters of that nature. I do not see anything in that background report that is directly causative of the very serious offending involving firearms …
[20] Mr Aspinall-Su’a was 24 years’ old at the time of the offending. The Judge considered whether a youth discount was appropriate and noted a five per cent discount would bring the sentence within the realm of home detention. However, he concluded that Mr Aspinall-Su’a was at the “fringe” of the age range which usually attracts a youth discount and that Mr Aspinall-Su’a could “only rely on youth’s stupidity for so long”.12 The Judge did not believe a youth discount was appropriate or justified.
[21] The Judge imposed an end sentence of 26 months’ imprisonment (rounding down from 26 and a half months) in respect of all charges, with the exception of the possession of cannabis charge for which Mr Aspinall-Su’a was convicted and discharged.
Approach on appeal
[22] Under the Criminal Procedure Act 2011, the Court must allow the appeal if satisfied that for any reason there is an error in the sentence imposed on conviction and a different sentence should be imposed.13 Otherwise, the Court must dismiss the appeal.14
[23] In deciding whether to impose a different sentence, the Court does not simply substitute its own view for that of the original sentencing Judge.15 Rather, it must be
11 At [13].
12 At [14].
13 Section 250(2).
14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
15 Te Aho v R [2013] NZCA 47 at [30]; and Tutakangahau v R at [30]-[35].
shown that the sentence is manifestly excessive or wrong in principle.16 The focus is on the end result rather than the process by which the sentence was reached.17
Section 27 report
[24] As the appeal largely concerns whether a cultural discount ought to have been given, it is convenient to set out relevant aspects of that report here.
[25] Ms Shelley Turner prepared a report pursuant to s 27 of the Sentencing Act 2002 for the earlier sentencing (which also concerned drug possession and unlawful possession of a firearm). It is dated 29 January 2020. Ms Turner interviewed Mr Aspinall-Su’a on 29 January 2020 and spoke with his older sister too.
[26] She considered the following factors were present in Mr Aspinall-Su’a’s background and were indicative of social, cultural, economic and/or systemic deprivation: cultural disconnectedness from Te Ao Māori; whānau dysfunction; family violence; limited education; and alcohol and drugs.
[27] Mr Aspinall-Su’a identifies as Māori and Samoan. While he was raised according to fa’a Samoa (the Samoan way) and identifies more strongly with his Samoan heritage, his mother is of Māori descent. Mr Aspinall-Su’a was raised predominantly in a sole parent environment by his mother, who appears to suffer from PTSD. His upbringing and background has been quite transient – he lived in Hamilton, Auckland, Thames and Wellington. He lived with an aunt for a few years and enjoyed stability during that time.
[28] Ms Turner records that Mr Aspinall-Su’a has been “to-ing and fro-ing” between Māngere and Thames. His last “stint” in Thames was positive and he was employed at the timber mill. However, his sister reports that he suffered verbal abuse from his mother during this time. In addition, Mr Aspinall-Su’a’s sister referred to significant verbal abuse that the siblings suffered from their mother during their upbringing. This appears consistent with Ms Turner’s brief interaction with Mr Aspinall-Su’a’s mother. Both Mr Aspinall-Su’a and his sister also report suffering
16 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33]-[34].
17 At [36].
some physical violence in their childhood. In addition, there is a suggestion that their mother placed pressure on both siblings to support her financially.
[29] Mr Aspinall-Su’a admitted to Ms Turner he has a methamphetamine addiction which has developed in recent years. He was introduced to methamphetamine by his father, around the age of 21 or 22 years old. Mr Aspinall-Su’a last saw his father in April 2019.
[30] Ms Turner characterised Mr Aspinall-Su’a’s life as being “marred with deprivation”. His transient lifestyle is said to have affected his ability to transition to adulthood with a sense of self-worth, power and authority. He presented as someone with a lot of mamae (hurt and shame), with his self-worth being violated by years of emotional abuse, transience and turmoil. Ms Turner believed this in turn affected how he presented himself – he was softly spoken and did not speak with confidence.
[31] More positively, Ms Turner observed the strong connection Mr Aspinall-Su’a has with his older sister. She supports him and recognises that Mr Aspinall-Su’a must address his drug issues. She also considers family support and employment to be crucial factors in Mr Aspinall-Su’a’s rehabilitation. Ms Turner also noted Mr Aspinall- Su’a would benefit from reconnecting with both his Māori and Samoan heritage.
Submissions
[32] Mr de Groot, counsel for Mr Aspinall-Su’a, submits the Judge erred in failing to allow an adjustment for the matters discussed in the s 27 report. He considers a discount of 25 per cent ought to have been given. Mr de Groot submits the sentence imposed ought to be substituted with a sentence of 17 ½ months’ imprisonment, with leave reserved to apply for home detention.
[33] Mr de Groot submits Mr Aspinall-Su’a’s offending did not occur in a vacuum and refers to Ms Turner’s findings. Mr de Groot also refers to factors discussed in Ms Turner’s report which may serve to “insulate” Mr Aspinall-Su’a in the future. He has a close relationship with his half-sister, who is described as a stabilising and supportive presence in his life. He has also done well in employment, despite having no formal qualifications.
[34] Mr de Groot describes the Judge’s discussion of a cultural discount (as quoted above at [19]) as being “reductive”. He refers to the recent decision of the Court of Appeal in Carr v R, where the Court observed that it is not appropriate to “reason that because other people with disadvantaged backgrounds do not offend, legitimate references to deprivation affecting the life of an individual offending can be put on one side”.18 He submits the Judge erred in reasoning that as issues such as familial deprivation are “quite common” in the South Auckland area, those issues were not worthy of recognition.
[35] Mr de Groot instead submits the offending is properly viewed as symptomatic of a chaotic, insecure and unstructured lifestyle, conditioned by the use of methamphetamine. While he acknowledges that drawing a causative link between s 27 factors and the offending can be fraught, he submits a link can readily be inferred between the disadvantages Mr Aspinall-Su’a faced as a child and his offending. In particular, Mr Aspinall-Su’a’s fears for his safety are said to be related to his firearm offending. Mr de Groot submits a more direct nexus can be inferred between Mr Aspinall-Su’a’s background and his drug-related offending, given he was introduced to methamphetamine by his father and has been addicted since.
[36] Mr de Groot accepts the global starting point of 35 months’ imprisonment (composed of 34 months’ imprisonment with an uplift of one month to reflect the fact the March offending occurred while Mr Aspinall-Su’a was on EM bail) is within range, albeit at the upper end of that range. But he resists any suggestion that the starting point could or should have been higher (and that it would therefore offset any error in failing to allow a cultural discount).
[37] If the Court were to adopt a discount in light of the s 27 factors, Mr de Groot submits leave under s 80I of the Sentencing Act 2002 should be reserved to allow Mr Aspinall-Su’a to apply for home detention at a later date. A suitable address is not yet available. Mr de Groot refers to the statutory principles of keeping offenders in the community as far as is consonant with safety and imposing the least restrictive outcome appropriate in the circumstances.19 In addition, he submits the principles of
18 Carr v R [2020] NZCA 357.
19 Sentencing Act 2002, ss 8(g) and 16.
denunciation, deterrence and rehabilitation can all be served by a sentence of home detention.
[38] Mr Benson-Pope, for the respondent, agrees with Mr de Groot that the Judge erred in reasoning that because the matters raised in Ms Turner’s report were not unusual, they did not merit a discount. The respondent notes the Court of Appeal’s decision in Carr was delivered a week after the Judge’s decision. But the respondent acknowledges that in light of Carr and the comments made in Zhang v R and Solicitor- General v Heta, the matters raised in the s 27 report ought to have attracted a discount.20
[39] The respondent submits a discount of five to 10 per cent is appropriate, rather than a discount of 25 per cent as sought by Mr de Groot. It says Mr Aspinall-Su’a’s s 27 report suggests he was not exposed to the “constellation of factors” which often affect an offender’s life choices, the combination of which will justify discounts at the top end of the appropriate range. In addition, it considers the causative link between Mr Aspinall-Su’a’s disadvantage and his offending is less apparent than in the cases described above.
[40] Notwithstanding the availability of a discrete discount for the matters raised in the s 27 report, Mr Benson-Pope submits the end sentence was not manifestly excessive. The respondent refers to Court of Appeal decisions emphasising the harm firearms can cause and the need for deterrent sentences.21 In light of those authorities and the fact the offending occurred on two separate occasions, he submits an overall starting point of 34 months’ imprisonment was not out of range. The Judge did not apply any uplift for the charge of receiving the stolen VW vehicle. If sentenced on that charge alone, Mr Benson-Pope submits a starting point of six to eight months’ imprisonment would be justified, with an uplift of two to three months being appropriate given it was different in nature from the remainder of the offending. He also submits there were further uplifts available to the Judge, given the offending
20 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648; and Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.
21 R v Richardson CA450/02, 25 March 2003 at [33]; and Torea v R [2011] NZCA 96 at [15].
occurred while Mr Aspinall-Su’a was serving a sentence of intensive supervision and in light of Mr Aspinall-Su’a’s previous convictions.22
[41] When these factors are considered, he characterises the Judge’s approach as generous. As such, the lack of a discount for the matters raised in the s 27 report is balanced out.
[42] For completeness, Mr Benson-Pope submits that even if the Court considers the end sentence manifestly excessive, the least restrictive sentence is still one of imprisonment. He refers to Palmer J’s decision in Rowell v Police.23 Palmer J declined to substitute a short term of imprisonment for a sentence of home detention on appeal. The appellant had issues complying with sentence obligations, the offending was serious and there was a need to underscore the sentencing principles of denunciation and deterrence. Palmer J reiterated earlier comments of Cooper and Lang JJ, who had observed it is open to a Judge to consider that a sentence of home detention would not sufficiently denounce or deter in such circumstances.
[43] Mr Benson-Pope submits the same approach should be adopted here. The offending occurred while Mr Aspinall-Su’a was serving a non-custodial sentence for firearms offending. Some of it was also committed in breach of EM bail and the offending itself was serious.
Discussion
[44] The primary issue on appeal is whether the Judge should have awarded a cultural discount.
[45] Section 27 allows an offender to request the court to hear information about the “personal, family, whānau, community and cultural background of the offender”
22 The respondent refers to the decision of Smith v Police [2014] NZHC 2196 at [15]-[18],where it says uplifts of six and three months were approved to reflect the appellant’s two previous firearm convictions and the fact the offending occurred while on parole for firearms offending. I discuss this case below at [51].
23 Rowell v Police [2019] NZHC 471.
and “the way in which that background may have related to the commission of the offence”.24
[46] The Court of Appeal in Carr v Police recognised that where a s 27 report provides credible evidence of factors indicative of systemic deprivation so as to establish a causative contribution to offending, such factors ought to be taken into account in sentencing.25 The Full Court of Appeal in Zhang referred to the following passage from Whata J’s decision in Solicitor-General v Heta:26
[50] The evidence of the presence of systemic deprivation (or social advantage more generally) on an offender need not be elaborate. The symptoms of systemic Māori deprivation are reasonably self-evident, including (among other things) intergenerational social and cultural dislocation of the whānau, poverty, alcohol and or drug abuse by whānau members and by the offender from an early age, whānau unemployment and educational underachievement, and violence in the home.
[47] As both counsel acknowledge, the Court in Carr held that it is inappropriate to conclude that because some with elements of systemic deprivation in their life do not offend, “legitimate references to deprivation affecting the life of an individual offender can be put on one side”.27 The gravity of the offending may serve to mitigate the extent of any discount, but not whether a discount is given at all.28 As Mr Benson- Pope acknowledged, in fairness to the Judge, I note the Court of Appeal decision in Carr was delivered a week after the decision in this case.
[48] Abuse appears prevalent in Mr Aspinall-Su’a’s upbringing, particularly verbal abuse from his mother. He has no formal qualifications. In addition, he was exposed to methamphetamine by his father (who was absent for much of his life) and had a somewhat turbulent adolescence. Ms Turner’s report did not expressly address how these features of Mr Aspinall-Su’a’s background contributed to his offending. But I accept Mr de Groot’s submission that Mr Aspinall-Su’a’s history, much of which is not of his making, bears the hallmark of a person who may be at high risk of contact with the criminal justice system. And while the link between these factors and
24 Sentencing Act 2002, s 27(1).
25 Carr v R [2020] NZCA 357 at [65]. See also Waho v R [2020] NZCA 526 at [28]-[33].
26 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [159], fn 102, citing Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [50].
27 Carr v R [2020] NZCA 357 at [66].
28 At [65].
Mr Aspinall-Su’a’s offending may not be as easily discernible as in other cases such as Solicitor-General v Heta, the Court of Appeal has recognised that a court does not need to be satisfied that the matters raised are a proximate cause of the offending.29 It is enough that there is a causative contribution. I consider it of particular relevance that Mr Aspinall-Su’a was introduced to methamphetamine by his father, as I agree with Mr de Groot that Mr Aspinall-Su’a’s addiction likely affected his behaviour, including the erratic decision-making on bail and the fear or paranoia which likely motivated the firearms offending.
[49] I consider the Judge should have awarded a cultural discount. I do not accept however that a discount of 25 per cent is appropriate. The direct causal connection between Mr Aspinall-Su’a’s upbringing and his offending is not as strong as in other cases.30 There is also some validity to the respondent’s submission that his upbringing does not feature some of the factors most consistent with severe systemic deprivation, cultural disconnection and intergenerational poverty and disadvantage.31 But nor is the offending as serious as in some of the other leading s 27 discount cases. I consider a discount of 15 per cent to be appropriate. The Court of Appeal has commonly allowed discounts of 15 per cent for cultural factors, including in circumstances where the trauma of an offender’s upbringing is “of a lesser order than the worst that the Court sees”.32 Mr Aspinall-Su’a’s rehabilitative prospects also justify such a discount. He is well-supported by his sister, expressed remorse to Ms Turner and is relatively young. His criminal history is limited and he has never served a sentence of imprisonment, with the majority of his convictions only occurring within the past year and a half.
[50] Neither the respondent nor Mr de Groot challenge the adjusted starting point of 34 months’ imprisonment adopted by the Judge, with the respondent calling it
29 Cooper v R [2020] NZCA 510 at [19], citing Carr v R at [64].
30 See, for example, Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.
31 See, for comparison, Poi v R [2020] NZCA 312 at [32]-[51]. Mr Wilson grew up in an environment likened to “Once Were Warriors”, entered foster care at age 12 and was expelled from school at aged 14 years. A discount of 20 per cent was given. Mr Poi’s childhood was characterised by disruption to his primary caregivers, he suffered a serious head injury in a car crash which killed his father, lived independently of any caregivers from age 16, and had diminished intellectual capacity as a result of his head injury. A discount of 25 per cent was given, which also recognised Mr Poi’s rehabilitative prospects.
32 Gray v R [2020] NZCA 548 at [29].
“plainly within range”. I agree – the repeated possession of firearms is serious. But Mr Benson-Pope contends that despite a s 27 discount being warranted, the effect of that discount is largely countered by the Judge’s “generous” approach to uplifts.
[51] I do not consider this to be the case. An additional uplift may have been warranted to reflect the fact that the offending occurred while Mr Aspinall-Su’a was subject to his sentence of intensive supervision. I do not think an extra uplift was available to reflect his previous relevant convictions, given his only relevant previous convictions were those for which he received the sentence of intensive supervision – double counting should be avoided. The respondent submits that uplifts of six months and three months were approved in Smith v Police to reflect the appellant’s two previous firearm convictions and the fact the offending occurred while on parole for firearms offending, respectively.33 But in Smith v Police, the appellant had six previous convictions for unlawfully possessing a firearm/pistol, and three previous convictions for “ARMS” charges.34
[52] Mr de Groot submits the receiving charge was clearly factored into the sentencing. It is unclear on the face of the decision whether that is so. But I note the case management memorandum recorded that the charge was to be amended to one of reckless receiving, which attracts a lower degree of culpability.
[53] In Smith v Police, Brewer J considered a starting point of 18 months’ imprisonment appropriate for an offender who had been convicted of firearms and ammunition charges.35 In Kane v R Brewer J adopted as 12 month starting point for a single charge of possessing a shotgun under the bed with ammunition.36 Adopting a starting point of 18 months in Mr Aspinall-Su’a’s case in relation to the February offending, and uplifting it by two months to reflect the receiving charge, which is the uplift the respondent submits is appropriate, and an additional 12 months to reflect the March offending, would bring the starting point to 32 months’ imprisonment. Applying an additional uplift of one month to reflect the offending which occurred on EM bail and an additional uplift of three months to reflect the fact Mr Aspinal-Su’a
33 Smith v Police [2014] NZHC 2196. See also R v Smith [2016] NZHC 851.
34 At [15].
35 At [14].
36 Kane v R [2017] NZHC 340.
was still subject to his sentence of intensive supervision would result in an adjusted starting point of 36 months’ imprisonment. By comparison, the Judge’s adjusted starting point of 35 months’ imprisonment does not appear too low.
[54] Ultimately, while the respondent suggests the Judge’s approach to uplifts was generous, having heard Mr Benson-Pope’s responsible submissions I do not consider the adjusted starting point fell outside the available range. In those circumstances, I am not prepared to conclude that a cultural discount of 15 per cent would have no noticeable impact, particularly given the alternative formulation of sentencing given above.
[55] Adopting the Judge’s starting point of 34 months’ imprisonment and uplifting that by one month to reflect offending on bail brings the sentence to an adjusted starting point of 35 months’ imprisonment. Applying a guilty plea discount of 25 per cent and a cultural background discount of 15 per cent together, in accordance with the methodology adopted in Moses v R,37 results in an end sentence of 21 months’ imprisonment. By comparison, the Judge’s end sentence of 26 months’ imprisonment is manifestly excessive. Even if an additional uplift had been warranted, I consider it would not bridge the gap.
[56] Accordingly, I consider the Judge erred in imposing an end sentence of 26 months’ imprisonment. The appropriate end sentence would be one of 21 months’ imprisonment. As such, Mr Aspinall-Su’a’s sentence falls within the realm of home detention.
[57] A sentence of imprisonment is “a measure of last resort”.38 There is a “discernible legislative policy of keeping offenders within the community wherever appropriate”.39 A sentence of home detention is a significant sentence in its own right,40 but equally it would be an error to say that a short-term period of imprisonment
37 Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381 at [45]-[46].
38 Fairbrother v R [2013] NZCA 340 at [23], citing R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254 at [18].
39 Fairbrother at [23] citing Rawiri at [18].
40 Fairbrother at [28].
must always be commuted to a sentence of home detention.41 A judge must instead make a considered and principled choice between the two forms of sentence.42
[58] Palmer J’s decision in Rowell v Police is relevant.43 The appellant in that case was sentenced to one year and six months’ imprisonment on charges of unlawful possession of a pistol, assaulting a police officer and breach of a sentence of community work (which was imposed for a previous charge of possessing a firearm). On appeal, Palmer J considered the District Court Judge was correct to impose a sentence of imprisonment rather than home detention and characterised the Judge’s reference to the following passage from the Court of Appeal’s decision in R v Richardson as “apposite”:44
Loaded firearms are anathema within our community. Every Court has a clear obligation to impose sentences which in unequivocal terms express society’s condemnation of their availability because of the potential danger flowing from their possession.
[59] That is not to say every sentence for firearms offending ought to be one of imprisonment.45 But I accept Mr Benson-Pope’s submission that it is relevant here that at the time of the offending, Mr Aspinall-Su’a was subject to a sentence of intensive supervision for presenting a firearm. After being charged with the February offending and being released on EM bail, he was then again found in possession of firearms and ammunition. Such possession of firearms needs to be deterred and denounced.
[60] On the other hand, Mr Aspinall-Su’a has not previously received a sentence of imprisonment. He is only 24 years old and his prospects of rehabilitation seem good (provided his drug addicted can be addressed), particularly in light of his sister’s comments to Ms Turner. Home detention can also carry “a considerable measure of denunciation and deterrence, sufficient to supplant a short-term sentence of
41 Fairbrother v R [2013] NZCA 340 at [30].
42 At [30].
43 Rowell v Police [2019] NZHC 471.
44 At [10], citing Richardson v R CA450/02, 25 March 2003 at [33].
45 See, for example, Elwin v Police [2019] NZHC 3258.
imprisonment”.46 It involves significant restriction on an offender’s liberty and is not a soft option.
[61] There is a question about Mr Aspinall-Su’a’s ability to comply with a sentence of home detention given his not insignificant breach of EM bail. However, it is hard to assess his possible compliance in a vacuum as no address has yet been proposed. A suitable address may become available which could provide sufficient oversight and support to address any compliance risks. In this regard, I note the pre-sentence report recommended a sentence of home detention. As an aside, I also note the address suggested in that report is that of Mr Aspinall-Su’a’s mother. Given the contents of the s 27 report, I do not consider it appropriate for Mr Aspinall-Su’a to serve a sentence of home detention at that address.
[62] By a fine margin, I consider that if Mr Aspinall-Su’a were to find a suitable address with sufficient pro-social support, he would be capable of compliance. This would best provide for his reintegration and rehabilitation into the community, serve the purposes of denunciation and deterrence, and accord with the principle that offenders should be kept in the community so far as that is practicable and consistent with the safety of the community. A sentence of home detention could also include a condition requiring participation in a drug treatment programme.
Result
[63] I allow the appeal. I quash the sentence of two years and two months’ imprisonment, impose a sentence of 21 months’ imprisonment and grant leave to apply to the District Court for home detention under s 80I of the Sentencing Act 2002.
Gault J
46 Elwin v Police [2019] NZHC 3258 at [13], citing R v Iosefa [2008] NZCA 453 at [41]; and
Fairbrother v R [2013] NZCA 340 at [29].
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