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

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 Himiona v Police

Details

AGLC: Himiona v Police [2021] NZHC 1718
Case: [2021] NZHC 1718
Decision Date: 9 July 2021

CaseChat Overview and Summary

Nesbitt Himiona appealed against his eight-month imprisonment sentence for unlawful possession of a firearm. Himiona argued that the sentence should have been commuted to one of home detention. The High Court heard the appeal and found that there was an error in the sentence imposed by the sentencing judge. The error was to give deterrence such priority as to exclude the countervailing purposes of sentencing. The Court found that Himiona’s family support and responsibilities, his youth, and his lack of a significant criminal history made a sentence of home detention palpably appropriate in his case. The Court allowed the appeal and commuted the sentence to five months of home detention, subject to a deduction for time served. The home detention was to be carried out at an address approved by the Court. The Court also imposed standard and special post-sentence conditions on Himiona, including a condition that he not associate with known gang members or prospects during the sentence period.

Orders