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Isle v Police

Isle v Police

Case [2022] NZHC 2454 23 September 2022

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-121

[2022] NZHC 2454

BETWEEN
JORDAN PATRICK ISLE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 22 September 2022

Appearances:

J M Campbell for Appellant L Fiennes for Respondent

Judgment:

23 September 2022

JUDGMENT OF EATON J

This judgment was delivered by me on 23 September 2022 at pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

ISLE v NZ POLICE [2022] NZHC 2454 [23 September 2022]

Introduction

[1] Jordan Isle pleaded guilty to carrying an imitation firearm,1 possessing a firearm without a lawful purpose,2 possessing explosives without a lawful purpose,3 possessing a glass pipe for the purpose of consuming methamphetamine,4 possession of methamphetamine,5 and failing without reasonable excuse to assist a person exercising a search function under the Search and Surveillance Act 2012.6

[2] On 25 May 2022, he accepted a sentence indication given by Judge O’Driscoll on 16 May 2022. That indication left open the option of an end sentence of home detention. On 2 August 2022, Mr Isle was sentenced to 17 months’ imprisonment by Judge O’Driscoll.7

[3] Mr Isle appeals his sentence and seeks to have a sentence of home detention substituted for the sentence of imprisonment.

Facts

[4] The Police executed a search warrant on Mr Isle’s address on 16 March 2022. A further, warrantless search at the address found: a sawn-off 12-gauge shotgun in the driver’s side footwell of Mr Isle’s vehicle; 279 different calibre ammunition including 12-gauge shotgun rounds and large calibre subsonic rounds; 17 imitation firearms, mostly hand pistols and some rifles with specialist equipment to convert these into a functioning state; ammunition reloading equipment; 0.05 grams of methamphetamine; and a methamphetamine pipe. The constable requested Mr Isle’s pin code for his cell phone, which he declined to provide.

1      Arms Act 1983, s 46(1): maximum penalty one year’s imprisonment or a fine of $4,000.
2      Section 45(1): maximum penalty four years’ imprisonment and a fine of $5,000.
3      Section 45(1): maximum penalty four years’ imprisonment and a fine of $5,000.
4      Misuse of Drugs Act 1975, s 13(1)(a) and (3): maximum penalty one year’s imprisonment and a fine of $500.
5      Section 7(1)(a) and (2): maximum penalty 6 months’ imprisonment and a fine of $1,000.
6      Search and Surveillance Act 2012, s 178: maximum penalty three months’ imprisonment.
7      New Zealand Police v Isle [2022] NZDC 14671.

District Court decision

[5] In the Judge’s sentence indication, he indicated the starting point would be no more than two years’ imprisonment, and that an electronically monitored sentence would have to be considered. The Judge did not indicate whether an electronically monitored sentence would be imposed.

[6] At sentencing, and consistent with the earlier indication, the Judge took a starting point of 18 months’ imprisonment for the shotgun charge, with an uplift of six months for the other charges. The Judge then allowed a 20 per cent discount for Mr Isle’s guilty pleas, resulting in…

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 Isle v Police

Details

AGLC: Isle v Police [2022] NZHC 2454
Case: [2022] NZHC 2454
Decision Date: 23 September 2022

CaseChat Overview and Summary

Jordan Isle appealed against his sentence, seeking to have a sentence of home detention substituted for the sentence of imprisonment. Isle pleaded guilty to carrying an imitation firearm, possessing a firearm without a lawful purpose, possessing explosives without a lawful purpose, possessing a glass pipe for the purpose of consuming methamphetamine, possession of methamphetamine, and failing without reasonable excuse to assist a person exercising a search function under the Search and Surveillance Act 2012. The Police executed a search warrant on Isle’s address and found a sawn-off 12-gauge shotgun, 17 imitation firearms, ammunition reloading equipment, 0.05 grams of methamphetamine and a methamphetamine pipe. Isle’s appeal was dismissed.

The appeal raised several legal issues. First, whether the District Court Judge erred in considering an unproven aggravating factor, being that Isle was creating a production line of creating imitation firearms that were being turned into live firearms. Second, whether the District Court Judge erred in taking into account an irrelevant factor, being Isle’s age. Third, whether the District Court Judge failed to give adequate regard to factors that suggested home detention was the appropriate end sentence. Fourth, whether the District Court Judge placed too much emphasis on the sentencing principles of deterrence and denunciation.

The Court found that the District Court Judge was entitled to draw inferences from the agreed summary of facts in sentencing the defendant. The combination of factors pointed to Isle being engaged in an activity that was "somewhat of a production line". The Court found no error in the District Court Judge’s approach to sentencing. The Court also found that the Judge did not err in taking into account Isle’s age in sentencing him to imprisonment. The Court found that the Judge did not err in giving adequate regard to factors that suggested home detention was the appropriate end sentence. The Court found that the Judge did not place too much emphasis on the sentencing principles of deterrence and denunciation. The decision not to commute the sentence of imprisonment to one of home detention was both available and, in the Court’s view, appropriate.

Orders