Elsmore v Police

[2013] NZHC 1849

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2012-416-00006

CRI-416-2012-00007 [2013] NZHC 1849

BETWEEN  SHAWN ELSMORE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   3 July 2013

Appearances:           L H Maynard for Appellant

K Laurenson for Respondent

Judgment:                24 July 2013

JUDGMENT OF KEANE J

This judgment was delivered by  on 24 July 2013 at 2pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

Burnard Bull & Co., Gisborne

Crown Solicitor, Napier

ELSMORE v POLICE [2013] NZHC 1849 [24 July 2013]

[1]      On 14 November 2012, after a summary hearing over the preceding two days in the District Court, Gisborne, Shawn Elsmore and his uncle, Brian Middleton, were each convicted of four thefts of 122 lambs and a ram in January - February 2012. They admitted a further theft of 10 lambs on 7 February 2012. The stock they stole together was worth $27,000. Mr Middleton was also convicted of stealing in early January 2012 nine ewes and 13 lambs, worth $4,500.

[2]      On 18 February 2013 the trial Judge, Judge Tompkins, sentenced Mr Elsmore and Mr Middleton to imprisonment for 18 months; a sentence called for, he said, because of the scale of their thefts, the system they brought to it, the ease with which they were able to offend, the difficulty entailed in detecting and prosecuting their offending, and the effect on their victims and the wider community. The principles of denunciation and deterrence, he held, ruled out in their cases a sentence of home detention.

[3]      On this appeal Mr Elsmore, who has now served five months of his sentence, appeals his two principal convictions, contending that they are unsupported by the evidence on which the Judge relied and that at most he was culpable of receiving. In any event, he contends, those two convictions encompass stock that could not be linked to him on the evidence and that stock ought to be excised by amending the charges on which those convictions were entered.

[4]      Mr  Elsmore  also  appeals  his  sentence  as  manifestly  excessive.  First,  he contends, he did no more than assist Mr Middleton, the primary offender on the evidence, and the Judge was wrong to equate them. Secondly, he contends, the Judge was wrong to rule out a sentence of home detention, especially without obtaining a pre-sentence  report  evaluating  that  possibility.  That  sentence,  in  his  case,  he contends, was capable of serving adequately the purposes of denunciation and deterrence. It was the least restrictive proper sentence.

Offending

[5]      In early 2012 there was a spate of lamb thefts from farms close to Gisborne. Between 1 - 13 January nine ewes and 13 lambs were stolen from Integrated Foods, which owns a block of land bordering Otara Station, from which 110 lambs were

also stolen between 1 January - 12 February 2012. Eleven lambs were stolen from Whangara Farm between 27 January - 12 February 2012. A ram was stolen from Albert Waikari between 30 January - 1 February 2012 and a lamb from Mark Reeves between 29 January - 12 February 2012.

[6]      On 7 February 2012, in the early hours of the morning, the police stopped Mr Middleton and Mr Elsmore, who had with them Mr Middleton’s 15 year old son, driving towards Gisborne in Mr Middleton’s flat deck utility. They were carrying 10 lambs in a stock crate, which, as they later accepted, they had abstracted towards midnight from 200 sheep mustered in the Whangara Farm yards. Both pleaded to this offence before the hearing.

[7]      Four of the five remaining offences with which they were charged, and which they denied, concerned largely but not completely, stolen stock found on 12 February

2012 at a property on Tiniroto Road, Tiniroto, south of Gisborne, which Mr Middleton had begun to lease in mid - late January 2012, and at which Mr Elsmore was then living. After having been alerted by the Whangara Farm manager, the police searched that property on 12 February under warrant. With the help of managers from the various farms from which stock had been stolen they identified seven lambs belonging to Whangara Farm, 100 lambs belonging to Otara Station, and a ram belonging to a nearby farmer, Mr Waikari.

[8]      On  that  same  day,  at  about  4.40  pm,  in  the Whatatutu  area,  where  Mr Middleton  then  lived  (he  lived  in  Taihamiti  Road,  Whatatutu),  a  police  officer stopped Mr Middleton on a road near Te Karaka, once again with his teenage son, and once again with lambs in a stock crate and this time a lamb in the cab. Five lambs belonged to Whangara Farm and one to Mr Reeves. Mr Middleton declined, as was his right, to make any statement.

[9]      In the days ensuing seven lambs belonging to Otara Farm, and nine ewes and

12 lambs belonging to Integrated Foods, were recovered from a local farmer, Alan

Parker, who had purchased them from Mr Middleton through a stock agent on 13

February 2012. Mr Parker said he understood from the documents he received that this stock had come from Mr Middleton’s Whatatutu property.

[10]     The five charges that Mr Middleton and Mr Elsmore each denied, grouped the stock they were alleged to have stolen by owner and not by reference to where the stock was found. The result was that each of the two principal charges they faced involved potentially, or actually as Mr Elsmore contends on this appeal, two or more discrete thefts.

[11]     The charge each faced that they stole 107 Otara Farm lambs involved the 100 lambs found at Tiniroto on 12 February 2012, and the seven found later at Mr Parker’s property. The charge each faced that they stole 21 Whangara Farm lambs involved the 10 they had admitted stealing on 7 February 2012, the seven found at Tiniroto on 12 February 2012, and the five Mr Middleton was carrying that day when stopped by the police.

[12]     Two rulings the Judge gave at the hearing are also germane. In his first ruling the Judge allowed the prosecution to rely as propensity evidence on the 7 February

2012 Whangara Farm lamb thefts. In his third ruling he dismissed Mr Elsmore’s application to be discharged on all charges, on the basis he had no case to answer, except as to the Integrated Foods charge. The ewes and lambs found at Mr Parker’s property belonging to Integrated Foods, the Judge accepted, could not be linked on the evidence to Mr Elsmore. He convicted Mr Middleton, only, of that theft.

[13]     Conversely, the Judge held that Mr Elsmore did have a case to answer as to all of the Otara Farm and Whangara Farm lambs, not just those found at Tiniroto, but the seven Otara Farm lambs found at Mr Parker’s property, and the five Whangara Farm lambs found on the back of Mr Middleton’s truck. On the evidence, the Judge found, the prosecution could contend that Mr Elsmore and Mr Middleton stole all of that stock together.

Primary fact and inference issues

[14]     On this appeal, Mr Elsmore accepts, the Judge was entitled to conclude that the stock in issue was stolen from the owners to whom that stock was attributed. The issue then was and still is on this appeal whether the Judge could be satisfied on the evidence that Mr Elsmore was answerable for the theft of all or some of them. As to that Mr Elsmore accepts that the Judge correctly identified what the prosecution had

to prove: whether he, quite apart from Mr Middleton, and whether as a principal or a party, had taken from their owners the stock stolen, and had done so intentionally, intending to deprive those owners permanently of it.

[15]     As to the majority of the stock stolen, that found at the Tiniroto property on

12 February 2012, it is Mr Elsmore’s case on this appeal, as it was at the hearing, that there is no direct evidence that he stole those lambs. He accepts that the doctrine of recent possession might apply because he was then living at that address. But, he contends, the other prosecution evidence is discordant.

[16]     Mr Elsmore’s case was then and remains that he and Mr Middleton had just begun, in an informal partnership, to buy and sell stock for profit; and that Mr Middleton was the principal player. Mr Middleton, his uncle as it happens, was an experienced farmer. Mr Middleton leased the Tiniroto property. He, Mr Elsmore was merely the tenant. Coincidently also, Mr Middleton farmed land not far from Otara Station. Mr Elsmore’s case was and remains that at the Tiniroto property he merely cared for the stock that Mr Middleton delivered.

[17]     As to the five Whangara Farms lambs found by the police on the back of Mr Middleton’s truck on 12 February 2012, Mr Elsmore contends, there is no evidence linking that stock to him; and if there is no evidence that it was ever in his possession the doctrine of recent possession cannot apply. As to the seven Otara Farm lambs recovered from Mr Parker later, he takes the same point. Mr Parker’s evidence was that  those  lambs,  like  the  Integrated  Foods’ stock,  came  from  Mr  Middleton’s Whatatutu property.

Judge’s disputed findings

[18]     In  his  decision  the Judge  accepted immediately that  there was  no  direct evidence that Mr Elsmore and Mr Middleton had taken the  stock and, as he said, the prosecution case rested on the doctrine of recent possession and circumstantial evidence. The Judge then marshalled the relevant evidence, as he saw it to be, under nine headings:

(a)       The finding of the bulk of the sheep from the various farms at the Tiniroto Road property, leased by Mr Middleton and occupied by Mr Elsmore, and the locating of the smaller mob of sheep found on Mr Middleton’s vehicle.

(b)      The absence of any competing credible narrative as to how the defendants could have lawfully obtained those sheep.

(c)       ... the propensity of both defendants to steal sheep, as established by their joint convictions for a theft of sheep from the Whangara Farm on 7 February 2012.

(d)       The partial over-marking of some of the sheep, as established by the evidence describing that over-marking as very recent.

(e)       The uncontested evidence that on 29 January Mr Schofield, from Whangara Farms Limited, noted an unusual and unaccounted for mustering of a mob of sheep into the yards on that property over the long weekend, in circumstances where no farm employees would have done that.

(f)       The physical proximity of most of the complainant farms to one or other of the properties occupied by the defendants.

(g)       The complete absence of any financial or other records which could support legitimate acquisition of the sheep in question.

(h)       The closeness in time  between the losses of the sheep from the various farms and either their on-sale by Mr Middleton to Mr Parker or their accumulating at the Tiniroto Road property.

(i)        In respect of Mr Elsmore, the inculpatory, albeit disputed admission made by Mr Elsmore to Mr Reeves of ... being in possession of one of Mr Reeves’ sheep.

[19]     The Judge concluded that despite the lack of any direct evidence that Mr Middleton and Mr Reeves had taken the stock together, these factors, cumulatively, were ‘compelling and not allowing of any alternative conclusion’. He also held that there were six reasons why he could be satisfied they had taken them dishonestly with an intent to deprive the owners permanently. They were these:

(a)       Accumulating the sheep at the Tiniroto Road property. (b) The sales of some of the sheep by Mr Middleton.

(c)       The intended transport of the sheep out of the area as evidenced by

the sheep loaded onto Mr Middleton’s utility vehicle.

(d)      The booking of 100 sheep for slaughter with a local meat works.

(e)       The over-marking on some of the sheep ... (in) an effort by both defendants to disguise their origins.

(f)       The  absence  of  any  documentary  records  whatsoever  relating  to lawful purchase.

[20]     Thus, the Judge concluded, when Mr Elsmore had told the police that he and Mr Middleton had ‘embarked on what could loosely be described as a joint venture’, that was not simply ‘investing’ in sheep. It was to do so ‘without financial cost to themselves, by stealing them, and then either selling some on or sending them for slaughter for personal profit’. The ‘major thefts’ were the Otara Farm and Whangara Farm thefts. The lesser thefts were ‘opportunistic acquisitions ... from neighbouring or close-by farms’.

Judge’s findings cogent

[21]     On my review of the evidence the Judge was entitled to conclude that Mr

Elsmore, as well as Mr Middleton, stole the sheep found at the Tiniroto property on

12 February 2012.

[22]     Mr Elsmore then shared possession of the sheep with Mr Middleton, and even though Mr Middleton was the landlord and he was the tenant, he possessed the Tiniroto property by right and the sheep were in his care. He was thus as fixed as Mr Middleton with the doctrine of recent possession, which as the Court of Appeal recently said, amounts simply to this:1

Possession of property recently stolen is, in the absence of an explanation that might be true and would negative guilt, sufficient evidence to justify a finding that the possessor is either the thief or a dishonest receiver.

[23]     Neither Mr Middleton nor Mr Elsmore was able to explain innocently how they came by the stock. They were unable to point to any documented transaction that would account for their possession of the stock after it was stolen; and had Mr Elsmore claimed at the summary hearing only to have been a receiver, the Judge would have been entitled to reject that claim relying on the propensity evidence he admitted in his first ruling, fixing Mr Elsmore with a shared part in the 7 February

2012 Whangara Farm lamb theft.

1      R v Cruden [2007] NZCA 537 at [9].

[24]     The only issue can be whether the Judge was right to hold Mr Elsmore accountable  for  the  theft  of  the  Whangara  Farm  lambs  and  Mr  Reeves’ lamb, discovered on Mr Middleton’s utility on 12 February, and the seven Otara Farm lambs found at the Parker property later. Here too, I consider, even though there was no  evidence  establishing  directly  that  this  stock  was  ever  in  Mr  Elsmore’s possession, particularly at Tiniroto, the Judge was still entitled to hold as he did.

[25]     On  the  evidence  as  a  whole  Mr  Elsmore  and  Mr  Middleton  stole  the Whangara Farm and Otara Farm stock together. It was therefore open to the Judge to conclude (in contrast to his conclusion as to the Integrated Food stock) that these two further stock parcels were also the fruit of those thefts; and that Mr Middleton was disposing of them as part of their joint venture. Mr Elsmore’s appeal against conviction, I conclude, is unsustainable.

Sentence

[26]     When imposing the sentence Mr Elsmore now appeals, the Judge began by identifying the nature of the offending for which Mr Elsmore and Mr Middleton were accountable. The Judge said this:

The offending, which was premeditated and organised, covered a period of approximately six weeks at the beginning of 2012 when the two offenders would target rural properties where sheep had been mustered and kept close to road access, steal the sheep and then transport them to a property leased by Mr Middleton and occupied by Mr Elsmore before on-selling it. The targeted properties covered a wide geographical area and because of the inevitable nature of sheep farming, the properties were vulnerable to the kind of organised theft of stock undertaken. ...

[27]     As to the magnitude of the theft and its significance, the Judge said:

The  stock  stolen  ...  was  valued  at  approximately  $27,000,  including important breeding stock. The additional charge of theft faced by Mr Middleton related to some $4,500 of stock. The stock was recovered but only as a result of the timely intervention of police and not because the defendants showed any sign of desisting ...

[28]     Counsel accepted, the Judge then said, that the sentence he was obliged to impose had  to  serve primarily the purposes  of  denunciation  and  individual  and general deterrence; and he then returned to the effects of the offending, which he

described as ‘particularly corrosive’. As he then said, ‘unexplained stock losses put the jobs of farm managers and employees at risk and until resolved, and only if resolved,  cast  a pool  of suspicion  and  distrust over both  staff and  neighbours’. Neither Mr Middleton nor Mr Elsmore, he said, appeared to appreciate that ‘ripple effect’, and that was especially so of Mr Middleton.

[29]     Counsel differed, the Judge said, as to whether the two should be sentenced in parity with each other. Mr Middleton’s counsel contended that they should be, emphasising that they shared  responsibility for the aggravating features of their offending ‘repetitive premeditation and targeting of isolated rural areas for financial gain’. Mr Elsmore’s counsel, by contrast, sought a reduced starting point, contending that he was less culpable.

[30]     The Judge  held  that  they should  be  sentenced  in  parity with  each  other because they had offended together for financial gain; and he clearly saw the parts each played as complementary. In the remarks he then made, the Judge did not distinguish especially between them, though he did note that Mr Elsmore, in contrast to Mr Middleton, did display ‘a degree of regret’.

[31]     Then the Judge came to that aspect of his remarks on sentence most under challenge on this aspect of the appeal; his negative response to any thought of a community based sentence or of home detention. He said this:

Given that both individual and general deterrence and denunciation are the primary factors that the Court must taken into account, together with the question of parity, in my view a community-based sentence would not be an adequate response from the Court on this occasion. This offending is relatively easy to perpetrate, particularly in isolated and relatively remote rural areas. It is difficult to detect and prosecute and, as already noted, the effect,  both  on  its  direct  victims  and  the  wider  community,  is  very significant.

In those circumstances, and in the alternative, both counsel sought a further remand for consideration of an electronically-monitored sentence. But given the circumstances of this offending, the value of the stock stolen, the fact that the property leased by Mr Middleton and occupied by Mr Elsmore was used as a staging post, and in the end the needs of deterrence and denunciation, mean that in my view an electronically-monitored sentence would not be appropriate.

[32]     The Judge adopted, as the prosecution submitted he should, a starting point of

18 months imprisonment, making no distinction between Mr Middleton and Mr Elsmore, though Mr Middleton was charged with a further theft and with unlawful possession of a pistol for which the Judge imposed a concurrent six month sentence. There were no mitigating factors and the Judge sentenced both to the sentence Mr Elsmore now appeals.

Relative culpability ground

[33]     Mr Elsmore contends, first, that the Judge should have distinguished him from Mr Middleton, and, in his case, taken a starting point of 12 months imprisonment. In their joint venture, which on sentence Mr Elsmore still largely denied, he contends, Mr Middleton was the primary player. Moreover, Mr Middleton was sentenced for the further theft of nine ewes and 13 lambs worth $4,500 and possession of a pistol.

[34]     In contending that Mr Middleton was the primary player, Mr Elsmore relies on the reasons he advanced at the hearing. It was Mr Middleton who leased the Tiniroto property, arranged the sale and purchase of stock, and supplied his utility for the thefts. Mr Elsmore also contends, as he then did, consistently with his appeal against conviction, that the stock belonged to Mr Middleton, a point on which he cannot rely as a result of my dismissal of his conviction appeal. The only issue that Mr Elsmore can now take is whether the Judge, on his own findings, should have distinguished him from Mr Middleton.

[35]     The reasons that Mr Elsmore advanced to establish that Mr Elsmore was the primary player were open on the evidence. But it was equally open to the Judge to conclude that, when it mattered, Mr Elsmore was just as culpable. On the Judge’s findings, which I have upheld, Mr Elsmore was as complicit in the actual thefts of almost all the stock. The Judge was entitled to conclude that, even if Mr Middleton was more instrumental in organising the thefts and disposing of the stock afterwards, that was secondary.

[36]     Equally, I consider, it was open to the Judge to conclude that, though Mr

Middleton was responsible for a further theft, that was not sufficiently distinguishing

either. The thefts to which Mr Elsmore was an equal party involved stock worth

$27,000. Set against that, the further theft of $4,500 worth of stock was not so significant as to require the Judge to hold Mr Middleton markedly more culpable. The Judge was entitled to treat that too as secondary. This ground of appeal therefore fails.

Home detention ground

[37]     Secondly, Mr Elsmore contends, in his case a sentence of imprisonment was excessive. The least restrictive proper sentence for his offences, and in his case, he contends, even taking into account the purposes of denunciation and deterrence, was a sentence of home detention. The Judge erred in ruling out that sentence without obtaining a full pre-sentence report as to its suitability or otherwise.

[38]     Home detention, Mr Elsmore contends, is a real alternative to a sentence of imprisonment.2 In the Gisborne, Hastings and Napier District Courts, he contends, it has been imposed routinely for dishonesty offending involving amounts comparable to the value of the stock taken, and for dishonesty over lengthy periods. He relies on a table of sentences imposed for welfare benefit frauds, which he contends is comparable offending.

[39]     Furthermore, Mr Elsmore contends, he was and remains a suitable candidate for home detention. He had expressed remorse to his probation officer. More materially, before sentence he had been on bail for 12 months, and been compliant with its terms, including an evening curfew. He had enrolled in a local tertiary education course.

A fully considered choice

[40]     Imprisonment is the most restrictive sentence in the hierarchy of sentences and orders prescribed in the Sentencing Act 2002.3 It is, as the Court of Appeal said in R v Rawiri, 'a measure of last resort';4  more especially with the passing of the

2007 amending Act, which introduced the sentence of home detention. The 2007

2      R v Hill [2008] NZCA 41.

3      Sentencing Act 2002, s 10A.

4      R v Rawiri [2011] NZCA 244 at [18]; (2011) 25 CRNZ 254 (CA).

amendments,  the  Court  said,  demonstrated  a  ‘discernible  legislative  policy  of

keeping offenders within the community wherever appropriate’.5

[41]     Before  the  2007  amendments  that  policy  was  already  inherent  in  the hierarchy of sentences the Sentencing Act 2002 created; and in the priority the Act gave to the s 8(g) principle, requiring that any sentence imposed be 'the least restrictive outcome that is appropriate in the circumstances', by making that a precondition to any sentence above a discharge, a fine or reparation order.6

[42]     Section 16(1) says that when deciding whether to imprison, and to what extent,  the  sentencing  Judge  'must  have  regard  to  the  desirability  of  keeping offenders in the community as far as that is practicable and consonant with the safety of the community.' Where imprisonment is the presumptive or mandatory sentence, the Judge must sentence accordingly. Where that is not so, s 16(2) then provides, the Judge is prohibited from imprisoning unless satisfied as to three things.

[43]     First, the purpose for which imprisonment is to be imposed must be to hold the offender accountable, or to induce in him or her a sense of responsibility, or to serve the interests of any victim, or to denounce the offending, or to deter or protect the community.7 Secondly, any such purpose must not be able to be achieved by any lesser sentence.8  Thirdly, there must be no other sentence that would be consistent with such of the ten s 8 principles of sentence as apply.9

[44]     Where a sentence of imprisonment is presumptive or mandatory, or where the term required plainly exceeds a short-term period of imprisonment, 24 months or less, that is the sentence that must be imposed. But where the proper sentence is a short-term period of imprisonment, the Judge must decide whether to commute that

sentence to a sentence of home detention.10

5 At [17].

6      Sentencing Act 2002, s 15(1)(a).

7      Sentencing Act 2002, s 16(2)(a).

8      Section 16(2)(b).

9      Section 16(2)(c).

10     Section 15A(1)(b); R v Vhavha [2009] NZCA 588 at [29].

[45]     The  sentence  of  home  detention,  when  it  was  introduced  in  2007,  was deemed in the hierarchy of sentences and orders to be the second most restrictive sentence able to be imposed;11 and it may only be imposed when a Judge is 'satisfied that the purpose or purposes for which the sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences'.12

[46]     Sentences   of   imprisonment   have   been   quashed   and   home   detention substituted for two categories of error of law. One is where the sentencing Judge has assumed that the offence category lies beyond a sentence of home detention.13  The other  is  where  the  purposes  of  denunciation  and  deterrence  have  been  given complete priority without any sufficient regard to the countervailing purposes of sentence.14

Least restrictive proper sentence

[47]     Mr Elsmore’s offending was serious for the reasons the Judge identified. As the Judge clearly recognised, his offending was analogous to a systematic fraud and called for a sentence that served the purposes of denunciation and deterrence.15

[48]     The priority those purposes deserved, set in contrast to the countervailing purposes of sentence, however, depended firstly on just how sustained and serious this offending was assessed relatively. Also on the priority the countervailing purposes of sentence deserved taking into account Mr Elsmore’s offence history, his circumstances and rehabilitative needs. The sentence the Judge chose had to be the least restrictive proper sentence.

[49]     Serious though Mr Elsmore’s offending was, it was only beginning to gather momentum when he and Mr Middleton were apprehended and most of the stock stolen was recovered. That, presumably, is why the Judge held that this offending warranted no more than a short-term period of imprisonment. For that reason alone

the Judge became obliged to consider whether that sentence should be commuted to

11     Section 10A.

12     Section 15A(1)(a).

13     R v Ondra [2009] NZCA 489; Osman v R [2010] NZCA 199; Heta v R [2012] NZCA 267.

14     Manikpersadh v R [2011] NZCA 452 at [17].

15     R v Rose [1990] 2 NZLR 552 (CA), R v Marsters (2005) 22 NZTC 19,649 (CA).

one of home detention; and  in  Mr Elsmore’s  case more especially. Though  Mr Elsmore may have been as culpable as Mr Middleton for the actual thefts, it was Mr Middleton who brought system to this offending and made it possible.

[50]     In   recommending  community  work   and  supervision,   furthermore,   Mr Elsmore’s pre-sentence report at least suggested that he might be suitable for a sentence of home detention. He had expressed a degree of remorse, as the Judge recognised. He had undertaken, while on bail, some form of tertiary education. For almost a year he had been on bail, first in central Gisborne, and then for a month or more before sentence, on a farm where he assisted with odd jobs. There was no suggestion of any breach.

[51]     The difficulty the Judge faced on sentence was that Mr Elsmore’s report went no further. The report writer did not take into account the possibility that Mr Elsmore might be imprisoned for his offending and, for that reason presumably, it did not canvass whether he had an address suitable for a sentence of home detention. To canvass that possibility on its merits the Judge needed to obtain a home detention appendix.

[52]     It was at this point, as it appears to me, that the Judge made a material error of discretion. He decided that a home detention appendix was pointless because only a  sentence  of  imprisonment  would  serve  the  purposes  of  denunciation  and deterrence.  He  did  not  take  into  account,  certainly  overtly,  the  countervailing purposes of sentence and to what extent they had offsetting merit.

[53]     As  a  result,  I  became  obliged  myself  to  decide  whether  Mr  Elsmore’s offending was of such seriousness that, even taking into account all the purposes of sentence, only a sentence of imprisonment would serve. I concluded that Mr Elsmore’s offending was not of that order, that the countervailing purposes of sentence also deserved weight; and thus that home detention might be substituted, extending until Mr Elsmore’s compulsory release date, 18 November 2013, subject to a report confirming that to be a viable possibility.

[54]     On 15 July 2013 I issued a minute stating that and, in a telephone conference I convened on 17 July 2013, Mr Elsmore’s counsel told me that Mr Elsmore did have a central Gisborne address at which he could complete a sentence of home detention if that were imposed.

[55]     I now have a Community Corrections assessment, dated 22 July 2013, which states that Mr Elsmore consents to a sentence of home detention, but has still to do so  formally;  and  that  his  nominated  address  is  suitable,  the  occupants  have consented, and the police have no issue with the address or the occupants.

[56]     I have confirmed as well that, on the issue of this decision, Mr Elsmore is able to be released from Hawkes Bay Prison on 25 July 2013 and be transported securely to the Gisborne police station, arriving at about 5pm; and that he is able to be held there overnight and transported on the morning of 26 July 2013 to the District Court, Gisborne.

[57]     On that basis I quash Mr Elsmore’s sentence of imprisonment as from 26 July

2013, as from the time in the morning at which he arrives at the District Court, Gisborne. As from that date and time, and without any need for any further appearance on his part, he is then to stand sentenced instead to four months home detention on the standard conditions, and on the following special conditions:

1.Before  he is  released  from  the District  Court,  Gisborne,  he is  to complete a form consenting to the sentence of home detention imposed.

2.Once he arrives at his approved address, he is to remain there until a probation officer and a security officer arrive to complete the electronic monitoring connection called for.

3.He is to reside at his approved address and not to move from that address without the prior written approval of a probation officer.

4.        He is not to use, consume, or be in the possession of any alcohol or

illicit drugs for the duration of the home detention sentence.

P.J. Keane J