Geels v The the King
[2022] NZHC 3275
•6 December 2022
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CRI-2022-476-13
[2022] NZHC 3275
BETWEEN JACOB MARTIN GEELS
Appellant
AND
THE KING
Respondent
Hearing: 6 December 2022 Appearances:
D I Brown for Appellant
A R McRae for Respondent
Judgment:
6 December 2022
ORAL JUDGMENT OF EATON J
Introduction
[1] Mr Geels pleaded guilty to and was convicted of 38 charges in the District Court. These were offences for unlawful possession of a firearm,1 unlawful possession of a prohibited firearm,2 unlawful possession of a prohibited magazine,3 unlawful possession of explosives,4 possession of LSD for the purpose of supply,5 possession of cannabis for the purpose of sale to a person over the age of 18,6 possession of a utensil (a glass pipe) for the purpose of consumption of methamphetamine7 and
1 Arms Act 1983, s 45(1): maximum penalty four years’ imprisonment or a fine not exceeding
$5,000.
2 Section 50A: maximum penalty five years’ imprisonment.
3 Section 50B: maximum penalty two years’ imprisonment.
4 Section 45(1): maximum penalty four years’ imprisonment or a fine not exceeding $5,000.
5 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a): maximum penalty life imprisonment.
6 Section 6(1)(f) and (2)(b): maximum penalty eight years’ imprisonment.
7 Section 13(1)(a) and (3): maximum penalty one year’s imprisonment and/or a fine not exceeding
$500.
GEELS v R [2022] NZHC 3275 [6 December 2022]
receiving a stolen caravan.8 Judge Dravitzki sentenced Mr Geels on 2 November 2022 to 22 months’ imprisonment and ordered him to pay $500 in reparation.9 The Judge also imposed release conditions for up to six months after Mr Geel’s sentence expiry date.
[2] Mr Geels appeals his sentence. He takes no issue with the starting point adopted or the credits allowed. The single ground of appeal is that the sentence should have been commuted to home detention.
Facts
[3] On 10 July 2021, Mr Geels was at his home address. At that time he was associated with the Timaru Road Knights. Three patched Mongol gang members arrived at the address. A confrontation took place where Mr Geels was shot in the buttock. Mr Geels was transported to the Christchurch Hospital for medical treatment.
[4] As a result of the shooting, the Police obtained a search warrant to conduct a scene examination at Mr Geels’ address. The Police followed a trail of blood to a caravan on the property. On entering the caravan two firearms were found in the doorway. A search of the caravan revealed a total of 14 firearms concealed throughout the caravan. The Police also located six unlawful magazines, over 150 rounds of ammunition and a detonator.
[5] In a sleepout at Mr Geels’ address the Police found 70 tabs of LSD, 323 g of cannabis and 4.61 g of cannabis seeds, a glass pipe used for smoking methamphetamine and a further 100 rounds of ammunition.
[6] The Police also discovered that the caravan had recently been painted and all identifying features, including the registration and vehicle identification number, had been removed. Photographs identified the caravan as one stolen from an address in Waimate in mid-to-late December 2020.
8 Crimes Act 1961, ss 246(1) and 247(a): maximum penalty seven years’ imprisonment.
9 R v Geels [2022] NZDC 21585.
District Court decision
[7] Judge Dravitzki gave Mr Geels a sentence indication on 28 April 2022. The sentence indication notes are attached to the Judge’s sentencing decision.
[8] In the sentence indication, the Judge referred to the case law observing that sentencing for firearms offending should “in unequivocal terms express society’s condemnation of their availability because of the potential for danger from their possession.”10
[9] The Judge identified that the firearms were on Mr Geels’ residential property and were readily accessible. It was noted that while there was no evidence that any of the firearms were loaded, there were large quantities of ammunition readily accessible near the firearms. The Judge concluded that the firearms were either for Mr Geels’ personal use for an illegal purpose, or for someone he knew to use for an illegal purpose. The Judge described this as an aggravating factor. That two of the firearms were prohibited was an additional aggravating factor.
[10] The Judge did not consider Mr Geels’ drug dealing to be a significantly aggravating factor. He found that although Mr Geels admitted to drug dealing and there were some drugs found on the property, there was evidence Mr Geels had addiction issues. The Judge accepted the firearms were not in Mr Geels’ possession to protect a significant drug operation.
[11] Judge Dravitzki adopted a starting point of three and a half years’ imprisonment. He imposed a two-year concurrent sentence for the possession of the ammunition and explosives. A six-month uplift was imposed for the supply of Class A drugs, acknowledging that there was no evidence of a large or sophisticated drug dealing operation. The Judge indicated he would convict and discharge Mr Geels on the possession of cannabis and possession of the methamphetamine pipe charges. For the charge of receiving the stolen caravan, he indicated he would add an uplift of three months’ imprisonment.
10 R v Richardson CA450/02, 25 March 2003 at [33], cited in Torea v R [2011] NZCA 96 at [11].
[12]That led to a starting point of four years and three months’ imprisonment.
[13] The Judge then considered Mr Geels’ personal aggravating and mitigating factors. The Judge he did not consider Mr Geels’ criminal history to be an aggravating factor. He indicated a 25 per cent discount for guilty pleas and a discount for time spent in custody on remand and on EM bail was appropriate. He said he would consider the pre-sentence report and the s 27 report at sentencing.
[14] In giving the sentence indication, the Judge noted that even if Mr Geels was eligible for a sentence of home detention, he should not assume that would be the sentence. The Judge said the offending required a focus on deterrence and denunciation of the offender and of others in possession of unlawful firearms.
[15]Mr Geels accepted the sentence indication and entered guilty pleas.
[16] In the sentencing decision of 2 November 2022, the Judge acknowledged the Court had received a pre-sentence report, a cultural report, a psychological report and an alcohol and drug report. The Judge went through, in detail, the contents of those reports. Both counsel, who appeared at sentencing, and the pre-sentence report writer had suggested home detention was an appropriate sentence.
[17] The Judge allowed Mr Geels a 20 per cent discount to recognise the causal connection between his offending and the factors outlined in the s 27 report and to recognise Mr Geels’ addiction issues. The Judge also allowed a further five per cent discount to recognise the positive steps taken towards rehabilitation, including reducing the substances Mr Geels was taking and severing his connection with the gang. With the 25 per cent discount for the guilty plea, Mr Geels was given an overall discount of 50 per cent. From a starting point of four years and three months’ imprisonment, that led to an end sentence of 25 and a half months’ imprisonment. The Judge then reduced the sentence to 22 months’ imprisonment after allowing a further three-and-a-half-month discount to recognise the time Mr Geels’ spent on restrictive EM bail.
[18] The Judge then considered whether a sentence of home detention should be imposed. He observed that s 8 of the Sentencing Act 2002 requires him to impose the least restrictive sentence that is appropriate in the circumstances. He acknowledged the competing purposes of sentencing Mr Geels, including assisting in his rehabilitation and reintegration, promoting a sense of responsibility and acknowledgement of the harm done, denouncing his conduct, deterring him and others from offending and protecting the community from Mr Geels. The Judge also noted that s 16 of the Sentencing Act prohibits a sentence of imprisonment unless the judge is satisfied that sentence is imposed for the purposes of s 7 of the Sentencing Act and those purposes cannot be achieved by any other sentence.
[19] Ultimately, the Judge was not prepared to convert the sentence to one of home detention. He described the offending as very serious firearms offending due to the number and type of firearms, and the context of gang involvement and conflict. The Judge observed that large amounts of ammunition were located and said:
[36] In those circumstances, I am satisfied the only outcome that is appropriate for you, notwithstanding the length of sentence of imprisonment would enable consideration of home detention, is a sentence of imprisonment.
Principles on appeal
[20] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed if the Court is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.11 As the Court of Appeal identified in Tutakangahau v R, referring to the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.12 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.13
11 Criminal Procedure Act 2011, s 250(2) and (3).
12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
13 Ripia v R [2011] NZCA 101 at [15].
[21] Home detention is an alternative to a short-term sentence of imprisonment.14 The Court must be satisfied that the purposes for which the sentence is being imposed cannot be achieved by any less restrictive sentence.15
[22] The approach on appeal is that of standard appellate review as set out in the decisions of Palmer and Tutakangahau.16
[23] As regards the contest that is central in this appeal between a sentence of imprisonment and a sentence of home detention, the Court of Appeal in Fairbrother v R stated:17
[30] … the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.
[31] Sometimes, as this Court said in R v D (CA253/2008), that can prove a very difficult exercise of judgment; and “the closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other”…
Submissions
Appellant’s submissions
[24] Mr Brown, on behalf of Mr Geels, has submitted the Judge erred in refusing to convert the sentence to home detention. In his written submissions he highlighted four factors:
(a)the term of imprisonment was within the criteria for conversion to home detention;
(b)a sentence of home detention would have adequately satisfied the objectives of denunciation and deterrence;
14 Sentencing Act 2002, s 15A(1)(b).
15 Section 15A(1)(a).
16 Palmer v R [2016] NZCA 541; and Tutakangahau v R, above n 12, at [26]–[27].
17 Fairbrother v R [2013] NZCA 340.
(c)the sentencing Judge placed undue emphasis on the need for denunciation and deterrence and failed to take sufficient regard of the other purposes of sentencing; and
(d)the Judge failed to take into account other relevant factors, including that Mr Geels had limited previous offending, Mr Geels’ rehabilitative needs favouring home detention and the fact there was no clear need for imprisonment to protect the community.
[25] In support of his submission, emphasised in his oral submissions this afternoon, Mr Brown submits the Judge overemphasised the purposes of denunciation and deterrence, effectively to the exclusion of the other sentencing purposes. Mr Brown said the Judge “effectively misdirected himself” in noting that the senior courts have repeatedly said that firearms offending needs to be taken seriously and given an appropriately stern response by the courts, because the Judge strayed from the principle that each sentencing Judge must approach each case as an individual case. He submitted that this overemphasis, when coupled with the absence of sufficiently detailed reasoning about the other purposes of sentencing, amounted to an error in the Judge’s approach.18
Respondent’s submissions
[26] Mr McRae, for the Crown, has submitted that there is no error in the Judge’s decision to sentence Mr Geels to a term of imprisonment. He submits the Judge considered all of the relevant factors that have been raised by Mr Brown. And Mr McRae submits the Judge was right to find the offending was very serious and had a gang connection.
Analysis
[27] The end sentence in this case of 22 months’ imprisonment means that home detention was an available sentence to the sentencing Judge. A sentence of
18 Citing Metua v R [2018] NZHC 246 at [14].
imprisonment cannot be imposed where the purposes of sentencing can be served by a less restrictive sentence.19
[28] Mr Brown has submitted that the Judge placed undue emphasis on the purposes of denunciation and deterrence, and failed to give appropriate weight to the other purposes of sentencing and other relevant factors.
[29] I disagree with that submission. As acknowledged in many cases, denunciation and deterrence are important purposes in sentencing a defendant on firearms offending.20 The Judge, in my view, appropriately focused on the seriousness of the offending and there can be no doubt that this was very serious offending. It involved multiple firearms, including two prohibited firearms. It involved many rounds of ammunition. Mr Brown accepts that there was a gang connection in this case. Mr Geels himself accepted that he was involved in a gang. It was a gang conflict that led to him being shot. He had told the author of the pre-sentence report that he needed the firearms for protection and that he lived to protect the gang’s president. The gang element of this offending elevated the seriousness of the offending.
[30] I am also satisfied the sentencing Judge did consider the other purposes of sentencing. On my read, the Judge gave a considered decision and expressly acknowledged, either in his sentencing notes or in his sentence indication notes, the need to assist in Mr Geels’ rehabilitation and reintegration.21 Indeed, in setting a sentence of imprisonment, the Judge rejected the submission that support with Mr Geels’ rehabilitation will not be available in prison and on post-release conditions, and he encouraged Mr Geels to continue his rehabilitation.22 That was clearly a factor considered by the sentencing Judge.
[31] Further, the Judge was alive to Mr Geels’ lack of serious criminal offending in not setting an uplift for his criminal history. I accept that there was no detailed analysis
19 Sentencing Act, ss 8(g) and 16.
20 Isle v Police [2022] NZHC 2454 at [33]; Bowring v Police [2021] NZHC 3198 at [22]; R v Richardson, above n 10, at [33]; R v McLean [2009] NZCA 465 at [24]; R v Torea, above n 10 , at [15]; Manapori v Police [2020] NZHC 627, at [27]; and Martel v Police HC Hamilton CIV-2010- 419-69 at [15].
21 R v Geels, above n 9, at [32].
22 At [39].
of the s 7 factors beyond denunciation and deterrence but, in my view, that did not amount to an error. The Judge was entitled to give denunciation and deterrence the most weighty consideration in fixing the end sentence.
[32] I also note, as raised with counsel this afternoon, that the Judge did not refer to s 6(4) of the Misuse of Drugs Act 1975. That provision provides a statutory presumption of a sentence of imprisonment for Class A drug dealing. That Mr Geels was in possession of almost three times the quantity of LSD that presumes a defendant to be dealing,23 considered alongside his possession of firearms with ammunition and his gang connections, would have made it difficult, in my view, for Mr Geels to have avoided a full-time prison sentence for the Class A drug dealing offence alone and that factors against a sentence of home detention and supports the end sentence of imprisonment.
Conclusion
[33] I understand and acknowledge Mr Geels’ sense of frustration in that the Crown, at sentencing, supported an end sentence of home detention. But the Judge had made it clear when giving the sentence indication that the sentencing purposes of denunciation and deterrence posed an obstacle to a sentence of home detention. But the Judge had not then reached a concluded view. Throughout the sentencing process, Judge Dravitzki engaged in a close and what I consider to be a careful consideration of all the relevant circumstances before ultimately concluding that the sentencing purposes could not be achieved by any sentence short of imprisonment.
[34] Since being shot and his subsequent arrest, there is no doubt Mr Geels has made important and potentially life-changing decisions. In particular I refer to his decisions to end his affiliation with a gang and to address his rehabilitative needs. His positive outlook was reflected in his compliance over a lengthy period whilst on EM bail. Those positive measures were recognised by the Judge in allowing what I consider to be a generous total discount of 50 per cent from the sentence starting point. But none of the factors, that is factors personal to Mr Geels, could, in my view, distract
23 Misuse of Drugs Act, sch 5.
from the very serious nature of the offending, such that a sentence of imprisonment was appropriate.
[35] Mr Brown has said all that can be said in support of this appeal, however, I have concluded that Mr Geels has fallen short of demonstrating an error in the decision of Judge Dravitzki.
Result
[36]Therefore the appeal is dismissed.
...................................................
Eaton J
Solicitors:
Crown Solicitor’s Office, Timaru Douglas Brown, Barrister, Christchurch
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