Manapori v Police
[2020] NZHC 627
•24 March 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-000040
[2020] NZHC 627
BETWEEN TYNAN MANAPORI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 23 March 2020 Appearances:
H Croucher for the Appellant H Watts for the Respondent
Judgment:
24 March 2020
JUDGMENT OF WYLIE J
[Appeal against sentence]
This judgment was delivered me on 24 March 2020 at 1:30 pm.
Registrar/ Deputy Registrar Date:
MANAPORI v NEW ZEALAND POLICE [2020] NZHC 627 [24 March 2020]
Introduction
[1] On 3 February 2020 Judge Blackie, in the District Court at Manukau, sentenced the appellant, Mr Manapori, to 20 months’ imprisonment in respect of a number of charges, namely:1
(a)two charges of unlawful possession of a prohibited firearm (pump action shotguns);
(b)one charge of possession of ammunition (99 rounds of live shotgun shells);
(c)one charge of cultivating cannabis;
(d)one charge of selling/supplying cannabis; and
(e)one charge of driving while disqualified (third or subsequent).
[2] Mr Manapori appeals against the sentence, arguing that it is manifestly excessive.
[3]The appeal is opposed by the respondent.
Factual background
[4] On 20 August 2018, Mr Manapori was convicted of driving while suspended. Four months later, on 19 January 2019, Mr Manapori failed to stop, when he was being followed by a police car with its red and blue lights activated. He was convicted and disqualified from driving for six months from 25 July 2019. Two days later, on Saturday, 27 July 2019, at 1:40 am, Mr Manapori was driving a vehicle in Epsom. He was stopped by the Police for an unrelated matter. He explained that he was the sober driver for friends and on his way to pick them up. Mr Manapori appeared before the Court on the charge of driving while disqualified (third or subsequent) on 7 August 2019. He was granted bail.
1 Police v Manapori [2020] NZDC 1769.
[5] One month later, on 6 September 2019, a property manager was in the process of evicting Mr Manapori from the home rented by him. She went to the house to change the locks. She discovered a grow room and a number of cannabis plants in an outside sleep house. She called the Police. They located 46 cannabis plants and 2.073 kilograms of dried cannabis buds hanging from the ceiling in two separate rooms in the sleep house. They also found two pump action shotguns in Mr Manapori’s bedroom, together with 99 live shotgun shells. When spoken to by the Police, Mr Manapori said that he had been growing cannabis for about a month-and-a-half for personal use, and that he had purchased the two shotguns and ammunition about a month apart to protect himself from any harm.
[6] The pump action shotguns were prohibited firearms pursuant to s 2A of the Arms Act 1983, as amended in 2019.
[7] Mr Manapori appeared before the Court on the various charges noted above on 12 September 2019. He requested a sentence indication.
[8] On 3 October 2019 Mr Manapori was given a sentence indication by Judge Blackie. The sentence indication was structured as follows:
(a)a starting point of 18 months for the charge of unlawful possession of the two shotguns; and
(b)an uplift of 12 months for the cannabis offending, the possession of ammunition to acknowledge various previous convictions which Mr Manapori has accumulated (also for cannabis-related offending).
The Judge indicated that adjustments might be made at sentencing. He did, however, advise that he would not be reducing the sentence to take into account Mr Manapori’s age (23 at the time of the offending), given that there was no nexus between the offending and Mr Manapori’s relative youth. He also indicated that he would give Mr Manapori a full discount of 25 per cent for guilty pleas, if the same were entered.
[9] This indication would have resulted in an end sentence of 22-and-a-half months’ imprisonment in the absence of further reductions at sentencing.
[10]Mr Manapori accepted the indication, and entered guilty pleas to the charges.
[11]Mr Manapori appeared for sentencing on 3 February 2020.
The District Court sentence
[12] Judge Blackie recorded his view that the cannabis growing operation was sophisticated, and that Mr Manapori has previous convictions for cultivating and dealing in cannabis. He outlined the types of firearms and ammunition found, noting that pump action shotguns are now prohibited. He expressed concern at the number of rounds of ammunition found, and expressed the view that this was a particularly concerning aspect of the offending, because it indicated that the firearms were not solely for the purpose of deterring others. He noted that the maximum penalty for the possession of such items had been increased to five years. The Judge noted that the legislative amendments require that a sentence that serves the purposes of denunciation and deterrence is required in order to keep the community safe.
[13] The Judge adopted a total starting point of 30 months’ imprisonment. He referred to the pre-sentence report, which recommended a community-based sentence. He expressed the view that that recommendation failed to take into account the legislative changes to the Arms Act 1983. He did, however, acknowledge that the report set out a number of positive points, namely that Mr Manapori is a relatively law-abiding citizen in his day-to-day activities, that he is responsible, in employment, and has community support. The Judge reduced the sentence given Mr Manapori’s relative youth (despite indicating that sentence indication stage that he would not do so) and taking into account his personal mitigating factors. He reduced the sentence by 15 per cent for these factors to one of 26 months. He then reduced the sentence further, to allow for Mr Manapori’s guilty pleas. This resulted in an end sentence of 20 months’ imprisonment.
[14] The Judge declined to commute the sentence to one of home detention, observing that such a sentence would not be appropriate in Mr Manapori’s case, because it would not satisfy the purposes of denunciation and deterrence.
Appeals against sentence
[15] The appeal is brought pursuant to s 244 of the Criminal Procedure Act 2011 (“the CPA”).
[16] Pursuant to s 250(2) of the CPA, the appeal must be allowed if there has been an error in the sentence imposed, and a different sentence should have been imposed. In any other case, the Court must dismiss the appeal.
[17] If an appeal is to succeed, an error must be identified. Where errors are found, the Court’s assessment of the significance of the error will inform the decision whether or not a different sentence should be imposed. If the Court is satisfied that a different sentence should be imposed, then the appeal will be allowed. The focus on sentence appeals is on whether or not the end sentence imposed was within range, rather than the process by which the sentence was reached. In a sentence appeal involving multiple offences, the key issue is whether the total sentence is available, and within range, rather than the method by which it was reached.2
[18] An appeal against a refusal to commute a sentence of imprisonment to a sentence of home detention is an appeal against the exercise of a fettered discretion.3 The discretion of a sentencing Judge when determining whether to impose home detention instead of imprisonment is wide.4 The Court of Appeal has noted as follows:
[19] … there is nothing in the Sentencing Act 2002 to suggest a presumption for or against commutation, either generally or for particular types of offence. The decision calls for the case by case exercise of judgment against the statutory principles and purposes of sentencing. Those principles and purposes sometimes point, as here, in opposing directions, meaning that the sentencing judge is called upon to assess whether home detention can respond adequately to the seriousness of the offending. … it can be very difficult in a marginal case to articulate reasons for preferring one approach to
2 Tutakangahu v R [2014] NZCA 279 at [27]-[36].
3 Manikpersadh v R [2011] NZCA 452 at [12].
4 Palmer v R [2016] NZCA 541.
another. In consequence, the margin of appreciation extended to sentencing judges is usually significant.
(Citations omitted)
Submissions
[19]Ms Croucher, for Mr Manapori, argued that Judge Blackie erred, by:
(a)not considering whether home detention would adequately denounce and deter Mr Manapori’s offending;
(b)not taking into account sentencing principles such as rehabilitation; and
(c)not giving consideration to the desirability of keeping offenders in the community as far as practicable, consonant with the safety of the community.
She argued these errors have resulted in a manifestly excessive sentence, and that a sentence of home detention should have been imposed, as being the least restrictive outcome appropriate in the circumstances.
[20] Ms Watts, for the Crown, submitted that Judge Blackie was correct to conclude that the seriousness of the offending was such that a sentence of imprisonment was required to adequately discharge the purposes and principles of the Sentencing Act 2002. She argued that the combination of a substantial cannabis cultivation and the supply operation, together with two particular serious firearm charges were serious offending, which posed a danger to the community. She referred to various observations by the Court emphasising that the possession of firearms would normally lead to the imposition of prison sentence. She also referred to recent amendments to the Arms Act, which have increased the penalty for the possession of firearms.
Analysis
[21] When considering whether to impose a sentence of imprisonment the Court must take into account s 16 of the Sentencing Act 2002. It provides as follows:
16 Sentence of imprisonment
(1) When considering the imposition of a sentence of imprisonment for any particular offence, the court 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.
(2) The court must not impose a sentence of imprisonment unless it is satisfied that,—
(a) a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and
(b) those purposes cannot be achieved by a sentence other than imprisonment; and
(c) no other sentence would be consistent with the application of the principles in section 8 to the particular case.
(3) This section is subject to any provision in this or any other enactment that—
(a) provides a presumption in favour of or against imposing a sentence of imprisonment in relation to a particular offence; or
(b) requires a court to impose a sentence of imprisonment in relation to a particular offence.
[22] Judge Blackie did not expressly refer to s 16 but it is clear that he had denunciation and deterrence in mind when he imposed the sentence of imprisonment, primarily because of the firearms charges.
[23] Ms Croucher submitted that Judge Blackie failed to consider that whether home detention would adequately denounce and deter Mr Manapori’s offending.
[24] It was common ground that home detention is a significant sentence in its own right. Sentences of imprisonment can be and have been quashed where the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentencing. That does not, however, mean that a short term period of imprisonment must always be commuted to a sentence of home detention.
That equally would be a too narrow view of the law. What is required is that the sentencing Judge makes a considered and principled choice between the two forms of sentence – imprisonment and home detention – recognising that both serve the principles of denunciation and deterrence, and identify which of them better qualifies as the least restrictive outcome to impose taking into account all the purposes of sentencing.5
[25] With respect to Ms Croucher, I do not accept that her submission is correct. The Judge expressly considered whether or not he should commute the sentence to one of home detention. He declined to do so, observing that such a sentence would not be appropriate in Mr Manapori’s case, and because it would not satisfy the purposes of denunciation and deterrence.
[26] In the circumstances of the present case, there were two types of criminality involved – first the substantial cannabis cultivation and supply operation, and secondly, the possession of two prohibited firearms, together with a large amount of compatible ammunition.
[27] The Court of Appeal has on numerous occasions emphasised the seriousness with which the Courts view unlawful firearms, particularly where they are coupled with live ammunition. By way of example, the Court of Appeal in R v Richardson observed that loaded firearms are an anathema within our community, and that every Court has a clear obligation to impose sentences which in unequivocal terms express society’s condemnation of their availability given the potential for danger from their possession.6 The Courts have been particularly concerned when firearms are associated with drug-related offending. In R v Corner the Court of Appeal held that in the absence of special circumstances, the possession of weapons such as sawn off shotguns will normally lead to the imposition of a prison sentence and the more so if
5 Fairbrother v R [2013] NZCA 340.
6 R v Richardson CA450/02, 25 March 2003 at [33] and see R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 388 at [40]; Torea v R [2011] NZCA 96 at [11]; R v McLean [2009] NZCA 465 at [24]; Haggie v R [2011] NZCA 221 at [23].
there is evidence to suggest that the use might have been contemplated in a criminal connection.7 More recently, the Court of Appeal, in Perez v R said:8
We agree with the submission that it has long been recognised that firearms associated with other criminal offending will attract a sentence of imprisonment.
The Court went on to say that the dangerous combination of drug offending or possession of firearms must be denounced and deterred.9
[28] In recent decisions of this Court, sentences of imprisonment have been imposed rather than home detention for the possession of the firearms.10 Equally, there are a number of cases where non-custodial sentences have been imposed.11 Each case depends on its own facts.
[29] I agree with Ms Watts that these various observations by the Courts are reinforced by the recent amendments to the Arms Act. In April 2019, the Act was amended to define a prohibited firearm. Inter alia the definition extends to a pump action shotgun that is capable of being used with a detachable magazine, or a pump action shotgun that has a non-detachable tubular magazine that is capable of holding more than five cartridges. The penalty for being in unlawful possession of a prohibited firearm was increased to one of five years’ imprisonment.
[30]In my judgment, Mr Manapori’s offending has various aggravating features:
(a)the firearms were associated with drug-related offending;
(b)Mr Manapori had two firearms;
7 R v Corner CA291/87 and CA329/87, 17 March 1988 at [7].
8 Perez v R [2015] NZCA 267 at [50].
9 At [51].
10 Rawell v Police [2019] NZHC 471 – 18 months’ imprisonment – home detention declined; Martel v Police HC Hamilton CRI-2010-419-69, 4 October 2010 – home detention refused on the basis that a custodial sentence was necessary to give effect to the objectives of denunciation and deterrence; Waite v Police [2015] NZHC 585 - home detention refused.
11 Fowler v R [2016] NZCA 233 – imprisonment inappropriate – insufficient evidence to suggest that the defendant posed a risk – short conviction history – lack of violent offending – evidence of good character and nothing to suggest he posed a threat to the community; R v Askin [2012] NZHC 1861 – non-custodial sentence sufficient to achieve the purposes of deterrence and denunciation; R v Brammall [2012] NZHC 3374 – offending attracted a sentence of 250 hours’ community work.
(c)both firearms were prohibited;
(d)Mr Manapori also had a substantial amount of live ammunition; and
(e)Mr Manapori was in possession of firearms, on his own explanation, for the purposes of protection.
[31] In my judgment, deterrence and denunciation were the paramount sentencing principles. Are they best served by imposing a sentence of imprisonment? I am not persuaded that Judge Blackie erred in his assessment that a sentence of imprisonment was required. Mr Manapori has a history of drug-related offending. He has previously been sentenced to home detention for cannabis-related offending. Clearly this sentence did not deter him from re-offending. I accept that Mr Manapori has no relevant violence-related convictions, but the presence of the firearms marks a significant escalation in his offending. Even on his own explanation it appears that he was willing to use the firearms. Clearly public protection and the safety of the community were in issue.
[32] I accept that Judge Blackie did not refer expressly to sentencing principles such as rehabilitation and that other relevant sentencing principles. It should not, however, be assumed that rehabilitation is precluded by a custodial sentence. Treatment is available directed at rehabilitating prison inmates.12 Further the Judge did reduce Mr Manapori’s sentence by four months to reflect his age, and his personal circumstances. The Judge specifically noted that Mr Manapori is normally a relatively law abiding citizen, that he is responsible, in work, and enjoys community support. He also noted that Mr Manapori has finally enrolled himself in a drug treatment programme. Moreover, the reduction in sentence was afforded to Mr Manapori, notwithstanding that he has previous relevant convictions, and Judge Blackie did not uplift the sentence to reflect those conditions nor the fact that the offending occurred whilst Mr Manapori was on bail, nor to accommodate the driving while disqualified offending. In my judgment, the discounts afforded to Mr Manapori – totalling just under 15 per cent – coupled with a full 25 per cent discount for the guilty pleas, were appropriate.
12 R v Accused (CA499/97) (1998) CRNZ 480 (CA) at 497.
[33]Accordingly, the appeal against sentence is dismissed.
Wylie J
Solicitors:
Ms Crouchier, Auckland Crown Solicitor, Manukau
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