Felts v Police
[2023] NZHC 1612
•27 June 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-232
[2023] NZHC 1612
BETWEEN MARK WILLIAM FELTS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 19 June 2023 Appearances:
M Taylor-Cyphers for the Appellant O Southern for the Respondent
Judgment:
27 June 2023
JUDGMENT OF GORDON J
This judgment was delivered by me on 27 June 2023 at 3.30 pm
Registrar/Deputy Registrar Date:
Solicitors/Counsel:
Crown Solicitor, Manukau
M Taylor-Cypers, Barrister, Auckland
FELTS v NEW ZEALAND POLICE [2023] NZHC 1612 [27 June 2023]
Introduction
[1] The appellant, Mark Felts, pleaded guilty to one charge of unlawfully getting into a motor vehicle,1 one charge of burglary,2 and one charge of failing to carry out obligations in relation to a computer search.3
[2] On 23 March 2023, Mr Felts was sentenced by Judge T V Clark at the Manukau District Court to 20.5 months’ imprisonment on the burglary charge with concurrent shorter sentences on the other two charges.4
[3] Mr Felts now appeals his sentence on the basis that the Judge erred in failing to follow the sentencing methodology prescribed under Moses v R5 and imposed an uplift for prior convictions after applying discounts for personal mitigating factors. As part of that ground of appeal, it is argued that the uplift for prior convictions should occur at step one of the two-step Moses methodology. Mr Felts also says that a greater discount for personal mitigating factors should have been given at the second step. As well, Mr Felts says his sentence of imprisonment should have been converted to an electronically monitored sentence at a full-time residential rehabilitative facility.
[4] The respondent opposes the appeal on the basis that the Judge did not err in her application of Moses, either in methodology or in calculation; nor did the Judge err in the uplifts or discounts applied because she took a holistic approach to sentencing. The respondent also says the Judge was correct to conclude that a sentence of home detention could not adequately meet the purposes and principles of sentencing in this case.
1 Crimes Act 1961, s 226(2). Maximum penalty: two years’ imprisonment.
2 Section 231(1)(a). Maximum penalty: 10 years’ imprisonment.
3 Search and Surveillance Act 2012, s 178. Maximum penalty: three months’ imprisonment.
4 New Zealand Police v Felts [2023] NZDC 5879.
5 Moses v R [2020] NZCA 296; [2020] 3 NZLR 583.
The offending
Unlawfully getting into a motor vehicle
[5] On 15 December 2022, the victim’s vehicle was taken from an Auckland city address. On the same day, registration plates were also taken from a vehicle parked at an Auckland city address.
[6] On 21 December 2022, Police located the victim’s vehicle displaying the registration plates taken from the second vehicle. As Mr Felts was walking to the vehicle he noticed Police and quickly turned away walking back into the mall. Mr Felts was located in the mall and arrested by Police.
[7] Upon arrest, Police located the keys for the stolen vehicle on Mr Felts as well as a registration label in his pocket. The Police also found two photographs of Mr Felts with the stolen vehicle displaying the stolen registration plates on CCTV footage.
Burglary and failing to assist
[8] At 1:00 am on 29 December 2022, Mr Felts and an unknown associate cut through a fence enclosing the loading zone area at the Bunnings Warehouse in Takanini. Once inside, they used wrapping plastic to cover two CCTV cameras monitoring the area and broke into the building. They first left the scene, presumably to monitor whether Police had been alerted, and then returned.
[9] Mr Felts and the unknown associate entered the building and stole security cameras and power tools. At this point the alarms activated and Police and security attended the scene but found nothing. Mr Felts and the unknown associate returned to the building some time later and stole further security cameras and power tools. Police and security were again alerted to the scene but found no signs of burglary. The estimated value of the items stolen is $25,000.
[10] On 30 December 2022, Police executed a search warrant at Mr Felts’ home address and pursuant to the search warrant, seized Mr Felts’ phone as evidential material. Mr Felts failed without reasonable excuse to assist the Constable when he was requested to do so.
District Court sentencing decision
[11] Judge Clark first declined to make any reparation order, noting Mr Felts’ outstanding reparation figures to pay from previous sentencings and the likelihood that Bunnings would have insurance to recover the lost amount. The Judge commented on Mr Felts’ extensive criminal history of largely dishonesty offending, spanning from 1998 to the present. She noted a propensity to commit dishonesty offences, in particular, burglary offences.
[12] On the starting point, Police submitted the appropriate starting point was 28 to 32 months’ imprisonment while defence submitted a starting point in the range of 18 to 20 months. The Judge was referred to two cases, Elers v R6 where a starting point of 16 months’ imprisonment was upheld on appeal; and Waenga v Police,7 where a starting point of two years’ imprisonment was upheld on appeal. Judge Clark considered a starting point of 26 months’ imprisonment was appropriate given the considerable premeditation and planning that went into the burglary, including the thought-out leaving and returning to steal further. The Judge was of the view those actions aggravated the offending beyond that in Waenga and noted the high value of the items stolen.
[13] On the uplift for the other charges, Police submitted an uplift of four to six months would be appropriate, which the defence accepted. Judge Clark gave an uplift of four months.
[14] For personal aggravating features, namely the previous conviction history, Police sought an uplift of six months while the defence submitted that a three-month uplift was all that was required. The Judge agreed that six months was not necessary and gave an uplift of four months for previous convictions.
[15] Judge Clark then allowed a 25 per cent discount for Mr Felts’ guilty plea (agreed by the Police and defence) and a 20 per cent discount, as sought on behalf of
6 Elers v R [2018] NZHC 497.
7 Waenga v Police [2016] NZHC 1712.
Mr Felts, for personal circumstances outlined in the s 27 report, his attempts at rehabilitation while in custody, and for his remorse and insight.
[16] The Judge recognised Mr Felts’ significant and ongoing substance abuse issue and acknowledged Mr Felts’ background of emotional deprivation and violence outlined in his s 27 report, including a childhood blighted with physical abuse, domestic violence, crime, drugs, gangs and abandonment. She considered the s 27 report demonstrated a very clear linkage and a causative link between Mr Felts’ upbringing, his lifestyle as a young adult, and his current offending.
[17] The Judge noted that the prison spoke highly of the good work Mr Felts had been doing whilst in custody and appreciated his insight into his offending. However, Judge Clark did not give much weight to Mr Felts’ intention as opposed to his actions, noting that despite his likely high motivation previously, he still fell into old habits. She acknowledged he had written two letters, one to the victims of the burglary and one to the Court, in which he did not make excuses but explained his circumstances.
[18] The Judge was aware that Mr Felts had been provided with adverse medical news but was not able to give any real weight to it in the absence of medical information.
[19] Judge Clark also explained that she was not able to give an additional discount for his significant substance abuse issues being drivers of his offending, in line with Zhang v R,8 because of the lack of information provided on his addiction.
[20] In the Judge’s final calculations, she uplifted the 26 month’s starting point on the burglary charge by four months for the other offending, giving a global starting point9 of 30 months’ imprisonment. She then took the 45 per cent discount off the 30- month global starting point, resulting in 16.5 months’ imprisonment. To that, the Judge then added the uplift of four months for prior convictions giving the final sentence of 20.5 months’ imprisonment.
8 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
9 Or to use the language in Moses v R, above n 5, the “adjusted starting point”.
[21] On whether the sentence of imprisonment should be converted to an electronically monitored sentence at a residential rehabilitative facility, Judge Clark noted that the pre-sentence report recommended a term of imprisonment. Despite the good connection Mr Felts had made with the Clean N Soberside programme, she did not consider his situation was one where a sentence other than a term of imprisonment would be appropriate.
[22] The Judge felt compelled to reject the alternative sentence because of s 16 of the Sentence Act 2002, which provides that a court must not impose a sentence of imprisonment unless it is satisfied that the sentence is imposed to hold the offender accountable, responsible, and to recognise the interests of the victims, and those purposes cannot be achieved by a sentence other than imprisonment. The Judge also considered the need to take into account deterrence and denunciation, as well as the safety of the community. The Judge did not consider that those purposes and principles of sentencing could be achieved other than by imposing a sentence of imprisonment.
Law on appeal
[23] This Court must allow the appeal if there is an error in the sentence imposed and a different sentence should be imposed.10 Otherwise, the Court must dismiss the appeal.11
[24] The sentence must be manifestly excessive before the appeal Court may substitute its own views as to the appropriate sentence. The Court will generally not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.12 Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence given rather than the process by which it was reached.13
10 Criminal Procedure Act 2011, s 250(2).
11 Section 250(3).
12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].
13 Ripia v R [2011] NZCA 101 at [15].
Appellant submissions
[25] Ms Taylor-Cyphers, counsel for Mr Felts, does not challenge the adjusted starting point of 30 months’ imprisonment. But she submits that the uplift for the prior convictions needed to occur at the first step of the sentencing methodology, before the discounts were deducted. Therefore, she says the adjusted starting point would have been 34 months’ imprisonment, and when a 45 per cent discount (25 per cent for guilty plea and 20 per cent for personal mitigating factors) is applied, the end sentence is
18.7 months’ imprisonment. This is approximately two months lower than the end sentence imposed.
[26] Ms Taylor-Cyphers submits that a 25 per cent discount for all personal factors should have been given because Mr Felts meets every category of hardship suffered as referred to in the s 27 report, from cultural and whānau dislocation, hardship, and addiction. She also refers to his rehabilitative efforts.14 This is contrary to the submission on behalf of Mr Felts in the District Court (where Ms Taylor-Cyphers was not counsel) that a 20 per cent discount was appropriate for all personal matters including those referred to in the s 27 report.
[27] As evidence of Mr Felts’ addiction, Ms Taylor-Cyphers points to his candid description of his drug use to the writer of the Provision of Advice to the Court (PAC) report and the information in the s 27 report. She says there is a real risk that Mr Felts’ addiction impaired his rational choices and diminished his moral culpability, referring to Zhang v R.15
[28] Ms Taylor-Cyphers submits that rehabilitation is to be recognised at sentencing, even if for no other reason than to incentivise a defendant to make efforts to reduce their risk of re-offending. She cites the Supreme Court in Berkland v R in support.16 She also refers to the various rehabilitative courses that Mr Felts has completed as recorded in the memorandum from the Department of Corrections.
14 In her written submissions Ms Taylor-Cyphers appeared to submit that addiction and efforts towards rehabilitation would each have warranted a 10 per cent discount over and above a 25 per cent discount for factors in the s 27 report. In her oral submissions Ms Taylor-Cyphers clarified that the 25 per cent discount now argued for was the total for all personal factors.
15 Zhang v R, above n 8.
16 Berkland v R [2022] NZSC 143; [2022] 1 NZLR 509.
[29] Ms Taylor-Cyphers submits that a rehabilitative sentence is appropriate given the six months Mr Felts has spent in custody already and says this Court should convert the sentence to an electronically monitored sentence at the residential rehabilitative facility where Mr Felts has been offered a place, for home detention purposes.
Respondent submissions
[30] Mr Southern, counsel for the respondent, submits that the Judge did not err in her sentencing decision and the end sentence cannot be described as manifestly excessive. Mr Southern says the sentencing methodology of Moses was correctly applied.17
[31] For the adjusted starting point of 30 months’ imprisonment, Mr Southern says this was correctly calculated by the Judge. It was determined by features of the offending, and not the offender. Mr Southern submits that the approach suggested by Ms Taylor-Cyphers would be erroneous in law because it means an uplift for an aggravating feature personal to the offender would be applied at step one when it should be applied at step two under Moses.
[32] Mr Southern further submits that there are no discernible errors in the Judge’s uplifts and discounts for Mr Felts’ personal factors. He refers to commentary in Adams on Criminal Law which describes uplifts of up to 25 per cent for previous convictions as “common”,18 which would equate to a 7.5-month uplift here (as against the four month uplift actually added). Mr Southern also notes from the commentary that significantly higher uplifts for recidivist burglary offending have frequently been held as appropriate, even up to 66 per cent. In Mr Felts’ case, Mr Southern points to the 122 prior convictions and 57 sentences of imprisonment, in particular, the significant number of burglary convictions. Therefore, Mr Southern submits that the four month uplift (being 13.33 per cent of the adjusted starting point of 30 months) was generous given Mr Felts’ extensive criminal history with serious dishonesty offending spanning over two decades.
17 Moses v R, above n 5, at [45]–[48].
18 Mathew Downs (ed) Adams on Criminal Law (online looseleaf ed, Westlaw) at [SA9.15(6)].
[33] Mr Southern does not suggest that a greater uplift ought to have been added, but submits it counts against the submission that greater discounts ought to have been made. He refers to the Judge’s sentencing notes where a largely holistic approach was taken and says that the 20 per cent discount clearly included all the relevant personal mitigating factors.
[34] Moreover, Mr Southern submits that any further adjustment would be only five per cent and would accordingly constitute tinkering.19
[35] Mr Southern also submits that the Judge was correct not to impose a sentence of home detention, citing the Court of Appeal’s comments in Doolan v R:20
The relative weight to be given to the principles and purposes of the [Sentencing] Act is left to be determined by the sentencing judge in all the circumstances of the case.
[36] Mr Southern says that the Judge explicitly turned her mind to the question of whether a non-custodial sentence – specifically, at the Clean N Soberside facility – would adequately meet the purposes and principles of sentencing in this case. He further submits that the Judge did not overlook Mr Felts’ rehabilitative needs, evidenced by the special conditions she imposed which included attendance and completion of an alcohol and drug programme. The Judge correctly balanced the requirements of denunciation and deterrence with the rehabilitative needs of a recidivist offender.
[37] Mr Southern finally submits that while the Judge did not state it explicitly, it is clear she took into account Mr Felts’ poor history of compliance with community- based sentences (including electronic monitoring conditions).
19 Cao v Police [2022] NZHC 2034 at [19].
20 Doolan v R [2011] NZCA 542 at [38], cited more recently with approval in Birch v R [2022] NZHC 2448 at [16].
Discussion
Uplift for previous convictions
[38] Ms Taylor-Cyphers submits that the uplift for previous relevant offending is appropriately dealt with as part of fixing the adjusted starting point, which is at stage one of the Moses methodology. She says the uplift for previous like offending is an aggravating feature of the circumstances of the offending under stage one of Moses as opposed to an aggravating feature of the offender to be dealt with at stage two of Moses.
[39]I do not accept that submission. In Moses the Court of Appeal said:21
[45] The following sentencing methodology replaces the three-step methodology established in this Court’s judgment in Hessell at [14]. It also replaces the Court’s subsequent restatement in R v Clifford at [60].
[46]A two-step methodology should be used:
(a)the first step, following Taueki, calculates the adjusted starting point, incorporating aggravating and mitigating features of the offence;
(b)the second step incorporates all aggravating and mitigating factors personal to the offender, together with any guilty plea discount, which should be calculated as a percentage of the adjusted starting point.
[47] Because the court fixes all second-step uplifts and discounts by reference to the adjusted starting point under this methodology, it makes no difference to sentence length if the guilty plea discount is the last step in the sentence calculation. However, the sentencing judge should still quantify a guilty plea discount, for several reasons: the discount is justified in substantial part by systemic and social considerations distinct from the offender’s personal circumstances; the discount must be transparent, which aids predictability; and the calculation allows others, including the offender and the victim, to identify the sentence that would have been imposed but for the plea. It should be apparent that the discount does not exceed the maximum of 25 per cent of the adjusted starting point.
[40] It is clear from the judgment in Moses that the “adjusted starting point” is the starting point determined by reference to all aggravating and mitigating features of the offending. It does not include any aggravating and mitigating factors relevant to the
21 Moses v R, above n 5.
offender. Previous convictions are one example of aggravating factors that relate to the offender.
[41] Ms Taylor-Cyphers seeks to carve out a separate regime for the offence of burglary so that prior convictions are taken into account in setting the starting point. She refers to the judgment of the Court of Appeal in R v Columbus,22 where the Court referred to an earlier judgment of the Court of Appeal in R v Lowe23 and said:
[14] Thus, in sentencing for burglary as for other offences the circumstances of the offending predominate when fixing the starting point. However, as this Court noted in Lowe, previous dishonesty convictions, while aggravating personal circumstances, are often treated as components of the burglary starting point. The rationale is that, while prior dishonesty offending is not of itself an element of the offence, it is directly relevant to assessing the degree of the offender’s culpability within the gravity of the particular offending (ss 8(a) and 9(1)(j) Sentencing Act 2002) and to the purposes of deterrence and community protection (s 7(f) and (g)). …
[42] I do not accept that Columbus provides the necessary justification for Ms Taylor-Cyphers’ submission for the following reasons:
(a)The Court of Appeal in Columbus was not intending to prescribe a general rule for all burglary sentencings where there are previous convictions for burglary;
(b)The rationale in the quoted paragraph could be said to apply to all classes of offending where there is prior offending of the same type. Under Moses that is not the correct approach;
(c)The previous offending in this case is not intrinsically connected to the present offending. One could perhaps envisage certain charges where there might be the necessary connection, such as a third or fourth breach of a protection order which makes the offending itself intrinsically more serious such that the court might take that into account in setting the starting point;
22 R v Columbus [2008] NZCA 192.
23 R v Lowe CA62/05, 4 July 2005.
(d)The approach urged by Ms Taylor-Cyphers creates a risk of double counting if there is a mixed type of offending with corresponding mixed previous convictions; and
(e)As is well-understood, adding personal factors into the starting point creates issues with comparisons in later cases.
[43] Ms Taylor-Cyphers submits in the alternative that if the Court does not take the previous convictions into account in step one, they should be taken into account in the first part of step two. She submits that either way the 45 per cent discount (25 per cent for guilty plea and 20 per cent for personal factors) would then be calculated from the period of 34 months (30 months for the adjusted starting point and a four-month uplift for prior convictions). Ms Taylor-Cyphers accordingly submits in the end it does not matter whether the four-month uplift is added as part of step one or the first part of step two because the 45 per cent would be calculated as a percentage of 34 months.
[44] That argument is flawed. As was said in Moses and as already set out above,24 the Court fixes all second-step uplifts and discounts by reference to the adjusted starting point (in this case 30 months not 34 months) under this methodology. The effect of the Moses approach is that the order in which the percentage uplifts or discounts are applied makes no difference to the end sentence. Discrete discounts or uplifts, that is those that are not expressed as percentages, do not cause discrepancies.25
[45] In this case, Judge Clark applied the percentage discount (totalling 45 per cent) to the adjusted starting point of 30 months imprisonment. The Judge then imposed a fixed uplift of 4 months imprisonment, which is effectively an uplift of about 13.33 per cent, by reference to the adjusted starting point.
[46] In terms of methodology, I do not consider the Judge was in error. I will discuss the level of the uplift and also the discount in the next section of this judgment.
24 Moses v R, above n 5, at [47].
25 At [10].
Uplift and discount
Amount of uplift
[47] Mr Felts is 42 years old. His criminal history is lengthy. Prior to sentencing he had 122 previous convictions and 57 sentences of imprisonment. Relevant convictions are as follows:
(a)fifteen convictions for burglary (for offending committed in 2021, 2020, 2019, 2018, 2017, 2012 x 3, 2011, 2010, 2008 x 2, 2006, 2005 and 2000); and
(b)nine unlawfully taking, getting into or theft of motor vehicles (for offending committed in 2019, 2018, 2017 x 3 and 1998 x 3).
[48] As Mr Southern notes from the commentary in Adams, uplifts significantly higher than 25 per cent for recidivist burglars have been upheld as appropriate. Columbus is one example where an uplift of 12 months’ imprisonment was considered appropriate where the adjusted starting point was 18 months’ imprisonment.26 A further example is Hetariki v New Zealand Police where the High Court considered an adjusted starting point of 22 months for burglaries was appropriate and in that context considered a 12-month uplift for prior convictions (15 burglary and 40 other dishonesty offences) was warranted.27
[49] I agree with the submission made by Mr Southern that a 13.33 per cent uplift was generous given Mr Felt’s history. It appears that the sentencing Judge thought so too as she said:28
… For your previous conviction history, I do not agree that six months is necessary. Obviously, I could uplift by that amount, but I do not consider that it is appropriate in the circumstances of today’s sentencing. I am simply going to temper that and leave the uplift at four months for your previous conviction history.
26 R v Columbus, above n 22, at [20].
27 Hetariki v New Zealand Police [2015] NZHC 2461 although the sentence appeal was dismissed because the end sentence was not manifestly excessive, the High Court did say that it would have increased the adjusted starting point to one of 22 months.
28 New Zealand Police v Felts, above n 4, at [31].
Discount for personal mitigating factors
[50]The Judge accurately summarised the contents of the s 27 report. She said:29
… you have come from a background of emotional depravation [sic] and violence, your childhood has been blighted with physical abuse, domestic violence, crime, drugs, gangs and abandonment. She talks about your lived experiences exposing you to childhood trauma and talks specifically about terrible abuses that you have suffered and terrible abuses that you have witnessed and how you continued to carry all of that maemae (which is pain and suffering) and whakama (which is shame) with you.
[24] It is no surprise to me then that you have struggled throughout your life, Mr Felts, with substance abuse. I can see how attractive it would be to simply “check out” and to prefer oblivion to your real life from time to time.
[25] I will have no difficulty at all giving you a discount for the s 27 report which I consider shows very clear linkage, and a causative link, between your upbringing, your lifestyle as a young adult in particular, and this current offending.
[51] The Judge also referred to the “good work” he had been doing while in custody and mentioned his insight and his understanding of his problems.
[52] Ms Taylor-Cyphers says all of this warrants a 25 per cent discount, rather than the 20 per cent, as sought on behalf of Mr Felts in the District Court and granted by the Judge.
[53] A comparison with the Supreme Court decision in Berkland is useful. The Court concluded that “Mr Berkland’s upbringing involved multiple criminogenic risk factors” and both his history of deprivation and trauma, and his addiction were drivers of his offending.30 On rehabilitation and character, the Court considered that Mr Berkland’s efforts at rehabilitation were “genuinely exceptional” and warranted a “significant sentencing response”.31 The Court considered that a discount of 10 per cent for his deprived background and addiction was appropriate, as was a 10 per cent discount for his efforts at rehabilitation.32
29 New Zealand Police v Felts, above n 4, at [23]–[25].
30 Berkland v R, above n 16, at [156] and [158].
31 At [160].
32 At [162].
[54] Accordingly, 20 per cent for all personal factors in Mr Felts’ case is within range. Even if this Court were inclined to consider that a greater discount should have been given, I take into account first, as discussed above, that the uplift for previous convictions could have been greater. Second, the 26-month starting point for the burglary was itself generous. For example, in Jackson v Police, but for a significant reduction for parity, the Judge considered that a starting point of about 30 months’ imprisonment was appropriate for various beverages stolen from a warehouse.33 There is also the case of Lenihan v R where a starting point of 42 months’ imprisonment was imposed for a sophisticated burglary of a pharmacy with a getaway driver involved.34
[55] As always, the Court on appeal is concerned with the end sentence. A greater uplift for prior convictions and a higher starting point would balance out a greater discount for personal factors.
[56] For all the above reasons I do not consider there is a basis for disturbing the discount for personal factors on appeal.
Should the Judge have imposed a sentence of home detention?
[57] The Judge carefully considered whether a sentence of home detention should have been substituted. She considered this not only in general terms but to the particular facility Clean N Soberside. Setting out her reasons why home detention would not be appropriate the Judge said:35
[29] The pre-sentence report, not surprisingly, Mr Felts, recommends a term of imprisonment. I know that you probably arrived at court today hopeful that I might take a step back and allow you to be released into the Clean N Soberside programme. It is good that you have made connection with that programme. It is something that I encourage you to follow up when you are able, but yours is not a situation where I consider a sentence other than a term of imprisonment would be appropriate. That is for the reasons that I am about to explain to you.
…
[36] Because your sentence does fall within range, Mr Felts, I do need to at least announce that I have considered whether or not you are someone who ought to be allowed to serve an electronically monitored sentence.
33 Jackson v Police [2019] NZHC 1123 at [22].
34 Lenihan v R [2020] NZHC 2543 at [43].
35 New Zealand Police v Felts, above n 4.
[37] What compels me to reject that as a sentencing option for you, is s 16 of the Sentencing Act 2002 which provides that the Court must not impose a sentence of imprisonment unless it is satisfied that that sentence has been imposed for the following reasons: to hold you accountable, responsible, to recognise the interests of the victims of your offending, and those purposes cannot be achieved by a sentence other than imprisonment. Bearing in mind, of course, I also need to take into account deterrence and denunciation as well as the safety of the community.
[38] I do not consider that those purposes and principles of sentencing can be achieved other than by imposing a sentence of imprisonment, albeit a reasonably short sentence of imprisonment.
[58] In coming to that decision, the Judge did not put to one side Mr Felts’ rehabilitative needs. That is apparent from the special release conditions she imposed: to attend and complete an appropriate alcohol and drug programme to the satisfaction of the probation officer, noting that may well be the Clean N Soberside programme; and to undertake and complete a short rehabilitative programme, perhaps involving specialist counselling.36
[59] Accordingly, I consider in imposing the sentence she did, the Judge appropriately balanced the statutory requirements of denunciation and deterrence with Mr Felts’ rehabilitative needs.
[60] For all those reasons I consider the Judge was correct not to impose a sentence of home detention.
Result
[61]The appeal is dismissed.
Gordon J
36 New Zealand Police v Felts, above n 4, at [40] and [41].
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