Elwin v Police - [2019] NZHC 3258

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-442

[2019] NZHC 3258

BETWEEN
LEWYS ELWIN

Appellant

AND

NZ POLICE

Respondent

Hearing: 9 December 2019

Appearances:

M Phillips for the Appellant

C Stubbington for the Respondent

Judgment:

13 December 2019

JUDGMENT OF POWELL J

This judgment was delivered by me on 13 December 2019 at 3.30 pm Registrar/Deputy Registrar
Date:

ELWIN v NZ POLICE [2019] NZHC 3258 [13 December 2019]

[1] On 8 October 2019, the appellant, Lewys Elwin, was sentenced by Judge Roberts in the District Court at Waitākere to 18 months’ imprisonment for the following offending;

(a)receiving over $1,000;1

(b)unlawful possession of a firearm (representative);2

(c)unlawful possession of ammunition (representative);3

(d)burglary under $500;4

(e)unlawful interference with a motor vehicle;5

(f)and unlawfully in a building.6

[2] Mr Elwin does not challenge the calculation of the sentence but appeals the decision not to commute his sentence to one of home detention.

[3] Due to recording issues no sentencing notes from the District Court are available in respect of this appeal. With the agreement of counsel, in the absence of sentencing notes, the hearing proceeded as if Mr Elwin were to be sentenced de novo, without disturbing the end sentence of 18 months’ imprisonment. As a sentence of 18 months’ imprisonment is a short sentence of under two years, there is no dispute Mr Elwin was eligible for home detention.7 The issue to be determined is therefore whether I should exercise my discretion to convert the end sentence of 18 months’ imprisonment to home detention.

1      Crimes Act 1961, s 246 and 247: maximum penalty of seven years’ imprisonment.
2      Arms Act 1983, s 45: maximum penalty of four years’ imprisonment or a fine not exceeding
$5,000.
3      Section 51: maximum penalty of three years’ imprisonment or a fine not exceeding $4,000.
4      Crimes Act 1961, s 231: maximum penalty of 10 years’ imprisonment.
5      Section 226(2): maximum penalty of two years’ imprisonment.
6      Summary Offences Act 1981, maximum penalty of three months; imprisonment or a fine not exceeding $2,000.
7      Sentencing Act 2002, s 15A(1)(b).

Relevant background

[4] On 12 September 2018, a burglary occurred in Swanson. Items taken from the relevant address included a motorboat, a vehicle, six firearms, a large quantity of ammunition, a motorbike, riding gear and tools. The items were valued at approximately $60,000. On 13 September 2018, a search warrant was executed at Mr Elwin’s address in Massey and the items were located there, resulting in the receiving and firearms charges.

[5] On 11 November 2018, Mr Elwin and a co-offender entered the Waitakere City Football Club. Mr Elwin used a crowbar to force open the locked door. He and his co-offender then used the shower facilities and stole two fruit juice drinks. Shortly after, Mr Elwin was seen on CCTV footage peering into and trying the door of a vehicle parked in the clubroom car park. The events of 11 November 2018 resulted in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Elwin v Police

Details

AGLC: Elwin v Police [2019] NZHC 3258
Case: [2019] NZHC 3258
Decision Date: 13 December 2019

CaseChat Overview and Summary

Lewys Elwin appealed against his sentence of 18 months' imprisonment, imposed by Judge Roberts in the District Court at Waitākere, for receiving over $1,000, unlawful possession of a firearm and ammunition, burglary under $5,000, unlawful interference with a motor vehicle, and unlawfully in a building. Elwin did not challenge the calculation of the sentence but appealed the decision not to commute his sentence to one of home detention. The hearing proceeded as if Elwin were to be sentenced de novo, without disturbing the end sentence of 18 months' imprisonment. The issue was whether Powell J should exercise their discretion to convert the end sentence of 18 months' imprisonment to home detention. The court considered Elwin's criminal history, the nature of the offending, and the potential for rehabilitation.

Powell J held that a sentence of home detention could be imposed only if the sentencing purpose could not be achieved by any less restrictive sentence or combination of sentences, and the court would otherwise have imposed a short-term sentence of imprisonment. The court considered the offender's personal characteristics, demonstrated efforts towards rehabilitation and the likelihood of rehabilitative success. Powell J concluded that there was force in the Crown's submission that the present offending included offences from Elwin's then home, and there was no doubt that much of Elwin's offending at issue took place against a very unstable lifestyle. However, Powell J also considered Elwin's limited criminal history, which until the present offending was largely confined to minor dishonesty and drug related offending. Powell J also noted that Elwin had taken steps to move away from an "unstructured" and anti-social lifestyle, and had a suitable address for home detention.

Powell J held that a sentence of home detention would best provide for Elwin's reintegration and rehabilitation into the community, whilst properly meeting the sentencing purposes of denunciation and deterrence. Such a sentence also accorded with the desirability to keep offenders in the community as far as that is practicable and consonant with the safety of the community. Powell J commuted Elwin's sentence of 18 months' imprisonment to one of 8 months' home detention.

The appeal was allowed. The sentence of 18 months' imprisonment was substituted with a sentence of 8 months' home detention, to be served at the venue and on the conditions set out in the PAC report dated 3 October 2019.

Orders