Isle v Police
[2022] NZHC 2454
•23 September 2022
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 19 months’ imprisonment. A further reduction of two months was allowed to reflect Mr Isle’s time spent on electronically monitored bail resulting in an end sentence of 17 months’ imprisonment.
[7] The Judge then considered whether the sentence should be one of imprisonment or home detention. He noted that Mr Isle had complied with electronic monitoring while on bail and had no previous convictions involving firearms or drugs. However, the Judge considered that a sentence of home detention would not achieve the purposes and principles of sentencing because of the seriousness of the offending (including the number of firearms and the fact the shotgun was cutdown and found in a motor vehicle), that the imitation firearms indicated “somewhat of a production line by you” (accepting a submission made by the prosecutor), that he was on parole at the time of the offending and Mr Isle not being a young offender.
[8] The Judge noted that if Mr Isle was given a sentence of home detention, there would in effect be nothing to prevent him from being involved in firearms. He also emphasised that a strong message needs to be sent to the community that the possession of firearms is totally abhorrent.
Principles on appeal
[9] 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 by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should
be imposed.8 As the Court of Appeal identified in Tutakangahau v R, quoting 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”.9 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.10
Submissions
Appellant’s submissions
[10] Ms Campbell, for Mr Isles, submitted the least restrictive sentence available was one of home detention. She said the District Court Judge erred in four ways:
(a)having regard to an unproven aggravating factor, being that Mr Isle was creating a production line of creating imitation firearms that were being turned into live firearms;
(b)taking into account an irrelevant factor, being Mr Isle’s age; and
(c)having no regard for the factors that suggested home detention was the appropriate end sentence;
(d)placing too much emphasis on the sentencing principles of deterrence and denunciation.
[11] Ms Campbell made succinct oral submissions in support of a sentence of home detention.
8 Criminal Procedure Act 2011, ss 250(2) and 250(3).
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
10 Ripia v R [2011] NZCA 101 at [15].
Respondent’s submissions
[12] Ms Fiennes, for the respondent, submitted the Judge did not err in sentencing Mr Isle to imprisonment as it was the least restrictive sentence appropriate in the circumstances.
[13] Regarding the prosecutor’s submission of Mr Isle turning imitation firearms into working firearms in a “production line” advanced at sentencing, Ms Fiennes submitted the Judge was entitled to take this into account in sentencing Mr Isle because it is an inference that can be drawn from the primary facts.11 She submitted that it can be inferred from the presence of modifying equipment, the vast amount of ammunition and the presence of reloading equipment that Mr Isle was producing working firearms from the imitation ones, and therefore there was a “production line”. Ms Fiennes said she was not present at the District Court hearing, but assumed that submissions were made in open court and there must have been an opportunity for defence counsel to make oral submissions on this point.
[14] Ms Fiennes submitted the sentence was not manifestly excessive. She said that the decision to commute a sentence of imprisonment to one of home detention is an exercise of discretion and there is no presumption that either sentence will be preferred.12 She cited Court of Appeal authority that confirms that denunciation and deterrence are important principles when sentencing firearm offending,13 and further authority that those principles may justify imposing a sentence of imprisonment instead of home detention.14 Ms Fiennes also refers to authority for the proposition that firearm crime is increasing in the community, which justifies a harsher sentencing approach.15
11 Simon France (ed) Adams on Criminal Law (online ed, Thomson Reuters) at [SA24.02] citing R v Kinghorn [2014] NZCA 168 at [20] and [31]; Pokai v R [2014] NZCA 356 at [31]-[36]; and Herlund v R [2021] NZCA 71 at [42].
12 Manikpersadh v R [2011] NZCA 452; and R v Vhavha [2009] NZCA 588.
13 R v Richardson CA450/02, 25 March 2003; R v McLean [2009] NZCA 465 at [24]; and Torea v R
[2011] NZCA 96 at [15].
14 Manapori v Police [2020] NZHC 627; and Martel v Police HC Hamilton CRI-2010-419-69 at [15].
15 Bowring v Police [2021] NZHC 3198, citing Ben Strang “Rates of gun violence and killings using guns at highest levels in a decade” Radio New Zealand (online ed, 18 May 2020).
[15] She submitted that it was open to the Judge to take a deterrent approach given the seriousness of the offending, the aggravating factors identified by the Judge, and the fact that the offending took place at a residential address.
Analysis
[16] Home detention is an alternative to a short-term sentence of imprisonment.16 The court must be satisfied that the purposes for which the sentence is being imposed cannot be achieved by any less restrictive sentence.17
[17] The approach on appeal is that of standard appellate review as set out in the decisions of Palmer and Tutakangahau.18
[18]In Fairbrother v R, the Court of Appeal stated:19
[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”…
[19] As noted above and by counsel, the court must impose the least restrictive sentence appropriate in the circumstances.20 A sentence of imprisonment can only be imposed where the court is satisfied that the sentence is being imposed for all or any of the purposes in s 7(1)(a)-(g), except (d), those purposes cannot be achieved by a sentence other than imprisonment, and no other sentence would be consistent with the principles of s 8 to the particular case.21
[20]I will deal with the four errors as advanced by Ms Campbell.
16 Sentencing Act 2002, s 15A(1)(b).
17 Section 15A(1)(a).
18 Palmer v R [2016] NZCA 541; and Tutakangahau v R, above n 9, at [26]–[27].
19 Fairbrother v R [2013] NZCA 340.
20 Sentencing Act, s 8(g).
21 Section 16.
Disputed fact
[21] Ms Campbell submits the Judge erred by considering that Mr Isle appeared to be involved in a production line converting imitation firearms to live firearms, which aggravated his offending and factored against a sentence of home detention.
[22] It is well established that where a sentencing is based on an agreed summary of facts, the court cannot depart from that summary.22 However, the sentencing judge is able to draw inferences from the agreed summary of facts in sentencing the defendant.23
[23]The summary of facts in this case stated:
Throughout the defendant’s sleepout and adjoining shed Police located 17 imitation firearms and specialist equipment to convert these into a functioning state. The bulk of these were hand pistols and some were rifles. Found amongst these was ammunition reloading equipment.
[24] In referring to a production line, the Judge might be said to have been referring to an operation which revealed the various stages of an imitation firearm being converted into a working firearm. That was the bold submission made by the prosecutor who also, and without supporting evidence, had submitted the purpose of this production line was to supply firearms to gangs. Although generally accepting of the “production line” submission, Judge O’Driscoll was more circumspect. He referred to Mr Isle having “somewhat of a production line”. The question on appeal is whether that was an available inference.
[25] I have regard, first, to the number of imitation firearms found. The finding of 17 imitation firearms is supportive of the inference drawn. No explanation for having that number of imitation firearms was provided. Absent such an explanation and having regard to other unlawful items found, the sheer quantity of imitation weapons points to a nefarious purpose. That Mr Isle was also in possession of the specialist equipment required to convert an imitation firearm to a live firearm is an unlikely coincidence. Again, absent an explanation, the Judge was entitled to infer the
22 R v Apostolakis (1997) 14 CRNZ 492 (CA) at 494; Pokai v R, above n 11, at [30].
23 R v Kinghorn, above n 11, at [20] and [31]; Pokai v R, above n 11, at [31]; and Herlund v R [2021] NZHC 1817.
equipment was intended to be used to convert the imitation firearms. That Mr Isle was also found in possession of a sawn-off shotgun and ammunition is also supportive of the inference drawn by the Judge.
[26] I am satisfied the combination of factors I have referred to point to Mr Isle being engaged in an activity that was “somewhat of a production line”. Counsel for Mr Isle did not dispute that inference was available. In determining both the seriousness of the offending and the appropriateness of home detention it was it was reasonable to infer Mr Isle’s involvement, at some level, in the conversion of imitation firearms to live firearms.
[27] Mr Isle’s real complaint is that a different prosecutor advanced a submission as to an aggravating factor that had not been advanced at the sentence indication hearing. That led the prosecutor to submit that a sentence of imprisonment and not home detention was appropriate. I acknowledge there is an element of unfairness when the prosecution significantly shifts its position from a sentence indication to sentencing. The position taken by the prosecution at a sentence indication may have had some influence over the decision to accept the indication. However, the prosecution is not bound by earlier submissions. Any submission advanced as to aggravating factors will be open to contest. The Court will appropriately exercise caution when the prosecution position has shifted to ensure the defence have the opportunity to dispute an alleged aggravating fact. Ms Campbell did not suggest Mr Isle was denied that opportunity.
Age
[28] The Judge identified Mr Isle’s age as factoring against a sentence of home detention, he, at the age of 32 years, not being a youthful offender. Ms Campbell submits that this was an error. Youthfulness might well be considered a factor favouring a sentence of home detention due to the greater focus on rehabilitation. However I agree with Ms Campbell that the fact Mr Isles is 32 years old does not mean imprisonment is necessary to achieve the purposes and principles of sentencing. In my view age was not a weighty factor in this case.
Inadequate regard for pro home detention factors
[29] Ms Campbell highlighted Mr Isle’s prior compliance with electronically monitored bail; his lack of previous convictions for drug or firearms offending; that until the offending there were no issues on parole and that he had not offended for the past eight years. She acknowledged that those matters were referred to by the Judge. She submitted they were inadequate weight.
[30] I do not place much weight on the absence of offending. Mr Isle had been sentenced to eight years’ imprisonment on 28 May 2014 for wounding with intent to cause grievous bodily harm and assault with intent to injure. He was released in April 2019 and reoffended in March 2022.
[31] The Judge recognised those factors as supportive of a sentence of home detention24 but found they were outweighed by the prevailing factors. I see no error in the approach of the Judge.
Emphasis on denunciation and deterrence
[32] Finally, Ms Campbell submitted that while deterrence is a relevant factor in sentencing, it does not on its own justify a longer sentence if there is nothing to suggest it will be ineffective deterrence.25 She submitted there was nothing before the Court outside of anecdotes about an increase in gun violence that would suggest a sentence of imprisonment would be an effective deterrent for either Mr Isle in future or other offenders.
[33] I do not accept that submission. I agree with Ms Fiennes that deterrence and denunciation are appropriate and important purposes in sentencing defendants offending with firearms. With other Courts acknowledging increased gun violence and the hardening of sentencing for this type of offending26, I consider the Judge did not need to cite a localised increase in crime requiring deterrence and denunciation. That is not to say home detention ought not be imposed for offending involving
24 New Zealand Police v Isles , above n 7, at [11] and [13].
25 R v Wellington [2018] NZHC 2196 at [8]-[9].
26 Bowring v Police, above n 15.
firearms. But, in a case involving a sawn-off shot gun found in a car on a property where there was a significant amount of ammunition and an unexplained hoard of imitation weapons able to be converted to live firearms and evidence of methamphetamine use, I find myself in agreement with the Judge that a sentence of home detention would not adequately denounce and deter this offending.
[34] When a sentencing Judge is confronted with this amalgam of criminal behaviour it is almost inevitable that the sentencing purposes of denunciation and deterrence will determine the sentencing. The decision not to commute the sentence of imprisonment to one of home detention was both available and, in my view, appropriate.
Result
[35]The appeal is dismissed.
...................................................
Eaton J
Solicitors:
Crown Solicitor’s Office
Copy to:
Josh Lucas and J M Campbell, Barristers, Christchurch
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