Himiona v Police

[2021] NZHC 1718

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2021-463-000066

[2021] NZHC 1718

NESBITT HIMIONA

v

NEW ZEALAND POLICE

Hearing:	8 July 2021
Appearances:	J Howell and K O’Connor for the Appellant I Hayden for the Respondent
Judgment:	9 July 2021

JUDGMENT OF WALKER J

[redacted as to bail address]

This judgment was delivered by me on 9 July 2021 at 3 pm Registrar/Deputy Registrar

NESBITT HIMIONA v NEW ZEALAND POLICE [2021] NZHC 1718 [9 July 2021]

Introduction

[1]    Nesbitt Himiona pleaded guilty to one charge of unlawful possession of a firearm, on 28 April 2021.1 He was sentenced to eight months’ imprisonment by Judge Harding in the Whakatane District Court on 27 May 2021.2 He has now been in custody for six weeks and three days.

[2]    Mr Himiona appeals his sentence on the basis that the sentence ought to have been commuted to one of home detention. He sought leave to adduce an affidavit confirming the consent of the occupants of the proposed address. The Crown sensibly did not oppose leave. Accordingly, I grant leave.

[3]The Crown opposes this appeal.

Background

[4]    On 12 March 2021 at around 11.00 am, Police executed a Search Warrant at a residential address in Whakatane. Mr Himiona was living at this address and was at home at the time the search was undertaken.

[5]    The Police located a .22 calibre Magtech model 7022 semiautomatic rifle fitted with a telescopic sight. Inquiries confirmed that this rifle had recently been stolen in a burglary at another Whakatane address. When spoken to by Police, Mr Himiona stated that he was holding the rifle for an “uncle” whom he would not name.

[6]    Mr Himiona is an associate of the Tu Mana chapter of the Black Power criminal gang and was wearing a Tu Mana Black Power t-shirt on the day of the search.

[7]Mr Himiona accepted these facts and pleaded guilty.

District Court decision

[8]    Judge CJ Harding noted that the pre-sentence report identified lifestyle, friends, associates and attitudes, including a sense of entitlement, as factors

1 Arms Act 1983, s 45(1): maximum penalty 4 years’ imprisonment or $5,000 fine.

2 Police v Hinemoa [2021] NZDC 10461.

contributing to the offending. The report also noted an admitted moderate to high level of daily cannabis use and involvement with an entrenched gang lifestyle. The pre- sentence report recommended a sentence of imprisonment and release conditions.

[9]    The Judge accepted that Mr Himiona was an associate, rather than a gang prospect or member. He declined to accept that the firearm was intended for recreational use. His Honour also noted that Mr Himiona had prior (relatively minor) convictions, none of which involved firearms.

[10]   Judge Harding reviewed the approach to sentencing for firearm offences, noting the strong need for deterrence. The Courts’ public duty to deal sternly with such offending is reflected in Parliament’s decision to increase the maximum penalty from three to four years’ imprisonment. With reference to R v Iti, the Judge further noted that unlawful possession of firearms is regarded as serious offending which would normally attract a sentence of imprisonment.3

[11]   His Honour set a starting point of 18 months’ imprisonment, with a three- month deduction for Mr Himiona’s youth (aged 21 at time of offending), and a full 25% discount for an early guilty plea.

[12]   Judge Harding expressly declined to convert the end sentence of 11 months’ imprisonment to a sentence of home detention. He determined that this would send the wrong message. Almost as a side wind he noted that the pre-sentence report showed that consent by the proposed occupants had not been obtained, although the occupants had been present in Court The Judge also declined to grant leave to apply for home detention.

[13]   Mr Himiona was sentenced on the basis that he declined to disclose the identity of the person for whom he was holding the firearm. However, Judge Harding subsequently recalled the sentence and then added a further discount. The issue of home detention was not revisited at recall. The end sentence was eight months’ imprisonment.

3 R v Iti [2011] NZCA 114.

Legal principles for Appeal

[14]   Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 (“the Act”). They must be determined in accordance with s 250 of the Act. An appeal against sentence may only be allowed if this Court is satisfied there has been an error in the sentence and that a different sentence should be imposed.4 Although s 250 of the Act does not refer to “manifestly excessive,” it is a well established principle in the appellate approach.5

[15]   As the Court of Appeal said in Tutakangahau v R: “[a] Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.6 Nor will the Court simply substitute its own view for that of the original sentencing judge.7

[16]   It is the end sentence which is important from the appellate court’s perspective, not the method by which it was reached. In short, whether a sentence is manifestly excessive is to be assessed in terms of the sentence given, rather than the process by which the sentence is reached.8

Home detention

[17]   Under the Sentencing Act, a Court considering the imposition of a sentence of imprisonment 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.9 Further, a Court must be satisfied the sentence of imprisonment serves the purposes of accountability, responsibility, denunciation, deterrence and community protection, while providing for victim’s interests.10 The Court must also be satisfied that no other sentence can achieve these purposes and be consistent with the application of relevant sentencing principles.11

4      Criminal Procedure Act 2011, ss 250(2) and 253.

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

7 At [36].

8      Repia v R [2011] NZCA 101 at [15].

9      Section 16(1).

10     Sections 7(1) and 16(2)(a).

11     Sections 8 and 16(2)(b),(c).

[18]   A sentence of home detention is available as an alternative to a short-term sentence of imprisonment.12 A short-term sentence is defined as a determinate sentence of 24 months or less.13 A Court may only impose a sentence of home detention if it is satisfied that the purpose or purposes for which the sentence is being imposed cannot be achieved by any less restrictive sentence.14

[19]In James v R, the Court of Appeal recorded that:15

an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits ... It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.

[20]   In Doolan v R, the Court of Appeal considered that an appellate court hearing an appeal against the refusal to commute imprisonment to home detention must focus on the identification of error, having regard to the discretionary nature of the circumstances.16 The margin of appreciation given to sentencing judges will be substantial, although potentially less so if sentencing does not follow a trial at which the Judge has formed an educated appreciation of an offender’s character.17

Appellant’s submissions

[21]   The appellant does not challenge the starting point, adjustments or the length of the end sentence imposed. The sole issue on appeal is whether a sentence of home detention should have been imposed instead, or whether leave should have been given to apply for home detention.

[22]   In particular, Mr Howell and Ms O’Connor on behalf of Mr Himiona submit that Judge Harding erred by failing to impose the least restrictive outcome appropriate in the circumstances or to consider Mr Himiona’s personal circumstances and family background or a rehabilitative purpose.18 Instead, his focus on likely gang involvement coloured the approach.

12     Section 15A(1)(b).

13     Sentencing Act, s 4 and Parole Act, s 4.

14     Sentencing Act, s 15A(1)(a).

15     James v R [2010] NZCA 206.

16     Doolan v R [2011] NZCA 542 at [39].

17     Aupouri v R [2019] NZCA 216 as to the margin of appreciation to sentencing judges.

18     Sentencing Act, s 8(i).

[23]   In relation to the offending, Mr Howell submits there is no requirement to impose an end sentence of imprisonment for a firearm offence. Rather, the principle in Iti v R is that a sentence of imprisonment is the starting point for firearms offending.19 He describes Mr Himiona’s offending as at the lower end of the scale – the result of a stupid decision. He points to the fact that the rifle is not a prohibited firearm; no ammunition was found and no evidence was put before the Court linking the firearm to gang activity. Instead, inferences were drawn which led to an unjustifiable focus on a gang related undercurrent.

[24]   Counsel acknowledges Mr Himiona’s cannabis habit and gang connections but submits that a rehabilitative approach to sentencing is appropriate where an offender is on the cusp of more entrenched drug use or gang activity.

[25]   Counsel further submits that it is an acknowledged principle of sentencing that a young offender has better prospects of reform and rehabilitation. In R v Mahoni, the Court of Appeal observed:20

It should be noted that the principle is not founded solely on consideration for young persons; there is benefit to the community in ensuring that the chance of rehabilitation is not shut out, and in reducing the prospect of a youthful offender emerging from prison a more hardened criminal than when he went it.

[26]   In summary, Counsel submits that Mr Himiona’s youth, personal circumstances, supportive whānau and rehabilitative prospects, make a sentence of home detention palpably appropriate in his case.

Respondent’s submissions

[27]   Ms Heydon for the Crown submits that the Judge properly assessed the seriousness of offending and the risk posed to the community; in particular, the offending was aggravated by the fact that the firearm was stored in a wardrobe within reach of children residing at the property, had been stolen, was held for a person likely to be a gang member or associate, and Mr Himiona is a gang associate. Comparable

19     Iti v R [2012] NZCA 492.

20     R v Mahoni (1998) 15 CRNZ 428 (CA) at 436.

case law indicates that firearm offending connected to gang activity attracts a sentence of imprisonment.21

[28]   She contends that the apparent (but mistaken) absence of the occupants’ consent was not a determining factor when the report-writer recommended a sentence of imprisonment and that the Judge had been generous in terms of applicable discounts for youth and a guilty plea. She also contends that childcare responsibilities warranting a further discount require detailed evidence of unusual hardship.22 Here, Mr Himiona is not the primary caregiver to his children, his employment is seasonal and fixed term and imprisonment is unlikely to adversely affect his young family to an exceptional degree.

Analysis

[29]   The crux of this appeal is the question of whether the sentence is one which should have been commuted to home detention. Therefore, the seriousness of the offending and the offender’s personal circumstances are only relevant insofar as they informed the Judge’s discretionary decision not to impose a sentence of home detention. But lest it be misunderstood, I agree with the Judge that firearms offences are serious; they have the potential to damage the fabric of the community and deterrence is a valid and critical objective for the public good.

[30]   However, I have concluded that there is an error in the sentence imposed and this sentence should have been commuted. The error was to give deterrence such priority as to exclude the countervailing purposes of sentencing. My reasons are these.

[31]   First, Mr Himiona is clearly heading down a dangerous path because of his associates. Nevertheless, it remains worthwhile keeping him away from the prevailing gang culture in prisons. This was the approach in Tuwhangai v Police. Though Mr Himiona  is  not  a  first-time  offender,  his  relative  youth  makes  him  particularly

21     Solicitor-General v Lyon HC Auckland CRI-2004-4040-77, 11 July 2006.

22     Garnett v R [2010] NZCA 173.

vulnerable to the wrong influences, as well as a better candidate for rehabilitation and reintegration.23 As Grice J said in Goodwin v Police:24

Short sentences of imprisonment have proved to be the least successful in achieving sentencing principles, including because of the antisocial environment the offender is placed in.

[32]   Secondly, his family support and responsibilities are a factor. He has been in  a long term relationship with his partner for eight years and they have two children. The children currently attend the Kohanga Reo at Taiwhakaea Marae. At the time of his arrest, Mr Himiona and his partner were in the process of moving out of his mother’s house and relocating to separate addresses. Although they have decided to live apart, they intend to continue to cooperate in the care of the children. Mr Himiona was planning to move in with his grandmother in Taiwhakaea, while his partner – who works in Opotiki - was relocating to Whakatāne. He has ongoing responsibilities as a father. He needs to step up to those.

[33]   Thirdly, it is desirable to keep (young) offenders in the community where possible to promote rehabilitation, provided these factors are not outweighed by the need to protect the community. Mr Himiona clearly has respect for his grandmother who has consented to taking him in and supporting him. He told the pre-sentence report-writer that “Nan keeps him in line”.

[34]   Fourthly, he has never served home detention. It should not be regarded as a soft option, particularly for young people. It is a serious restriction on a person’s liberty, but at least keeps people out of prison and at a distance from the wrong influences. This was his first time in prison and I hope it has motivated him to stay out of prison.

[35]   Fifthly, Mr Himiona’s past offending is relatively minor and does not involve firearms. There was no ammunition found with the firearm, or anywhere on the property, and there is no evidence that Mr Himiona planned to use the firearm himself for any unlawful purpose.25 Neither was there cogent evidence of the gang associations

23     Tuwhangai v Police [2020] NZHC 3428.

24     Goodwin v New Zealand Police [2021] NZHC 1526; citing White v Police [2020] NZHC 684.

25     Mr Himiona told the pre-sentence report-writer that he had been holding the firearm for around three weeks before the search warrant was executed, and that he had agreed to hold it for an

of the “uncle” although it is understandable that inferences to this effect were drawn by the Judge. Mr Himiona was open and candid with the report writer. He took responsibility. This is a positive sign.

[36]   Finally, while I acknowledge that Mr Himiona is not the primary caregiver of his young children, the fact that they can visit him at his grandmother’s address if a sentence of home detention is imposed will improve Mr Himiona’s chances of rehabilitation and social reintegration. It will also enable the children to maintain a relationship with their father during this period.

[37]   It is clear that the occupants of the proposed address are willing to support Mr Himiona during his sentence and comply with the responsibilities this entails. Affidavits were provided to the Court to this effect. They had not been before the sentencing judge. Mr Himiona appears to have strong whānau support from the wahine in his family, who attended the sentence appeal. This influence is to be encouraged. I trust that he will in turn respect them, particularly his grandmother, by complying strictly with the terms and conditions of his sentence. I urge him to be loyal to his whānau and not his associates. I also hope that he will honour his whānau by ensuring he is a positive role model for his children.

[38]   The Court typically halves the sentence of imprisonment it would otherwise have imposed when determining the length of a sentence of home detention. Both counsel for Mr Himiona and the Crown agree that should I commute the sentence this will be appropriate by way of term. However, the Court of Appeal has recognised that, “It does not automatically follow the appropriate term of home detention will be half the appropriate sentence of imprisonment in every case.”26 The term of a home detention sentence is to be fixed by reference to the purposes and principles of the Sentencing Act and all the factors relevant to the offending and offender. In my assessment, a realistic chance at rehabilitation requires more than a period of home detention of four months. I therefore propose to commute the sentence to one of home detention for five months subject to deduction for time served.

unidentified ‘uncle’, knowing that it had most likely been acquired unlawfully. He also stated that he later purchased the gun himself, using cash, intending to use it for duck shooting. Judge Harding declined to accept the latter comment.

26     R v Bisschop [2008] NZCA 229 at [18].

Conclusion

[39]   I allow the appeal. I quash the sentence of eight months’ imprisonment and substitute it with a sentence of five months less credit for time spent in custody. The home detention to be carried out at [redacted]. This address has been approved as technically suitable and its occupants deemed suitable.

[40]   The standard and special post sentence conditions referred to by the Judge remain.

[41]   Mr Himiona is to be released into the care of the person or persons with whom he will be residing or other family member. They are to travel by the most direct practicable route to the nominated address where Mr Himiona is to remain for the duration of sentence on the standard and special conditions set out in the pre-sentence report, along with the following condition:

(a)Not to associate with known gang members or prospects during the sentence period.

[42]   If there is any prospect of attaining employment or engaging in training, I would hope that is something Probation would consider approving.

............................................................

Walker J