Rowell v Police

[2019] NZHC 471

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-429

[2019] NZHC 471

BETWEEN

DAVID TAIRI ROWELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	18 March 2019
Appearances:	D J Taumihau for the Appellant S E Cann for the Respondent
Judgment:	18 March 2019

ORAL JUDGMENT OF PALMER J

Solicitors:

Public Defence Service, Auckland Meredith Connell, Auckland

ROWELL v NEW ZEALAND POLICE [2019] NZHC 471 [18 March 2019]

What happened?

[1]                   On 1 November 2017, Mr David Rowell was arrested after a callout to a house in Glenside, Wellington, regarding a domestic dispute. He became aggressive and abusive, kicked one of the police officers and stomped on another’s foot. A search revealed: a pistol capable of firing .22 ammunition, and firearm parts, in a bedroom he was occupying; and, elsewhere at the property, the barrel of a firearm and two pistol magazines capable of housing nine millimetre and .22 ammunition respectively.

[2]                   Mr Rowell pleaded guilty to charges of: unlawful possession of a pistol under s 50 of the Arms Act 1983; assaulting a police officer; and (almost entire) breach of a June 2017 community work sentence imposed for a previous charge of possessing a firearm.

Decision under appeal

[3]                   On 17 December 2018, Judge A C Roberts sentenced Mr Rowell in the Auckland District Court.1 The Judge set a starting point of 18 months’ imprisonment for unlawful possession of the pistol, uplifted it for two months for the previous convictions, uplifted it by another four months for the other charges and reduced the total by 25 per cent, or six months, for an early guilty plea. The end sentence was one year and six months’ imprisonment.2 The Judge declined to impose home detention because the home address was not appropriate, Mr Rowell had not readily complied with sentence obligations, the offending was serious and the principles of denunciation and deterrence needed to be underscored, in his view.3

[4]                   Mr Rowell appeals the sentence for the pistol possession charge and the decision not to impose home detention. Under s 250 of the Criminal Procedure Act 2011, I must allow the appeal if I am satisfied there is an error in the sentence imposed and a different sentence should be imposed. Otherwise, I must dismiss the appeal. I focus on whether the end sentence is within the available range.4

1      New Zealand Police v Rowell [2018] NZDC 27162.

2 At [12].

3 At [13].

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

Submissions

[5]                   Mr Taumihau, for Mr Rowell, submits the Judge erred in stating the maximum penalty for the offence was four years rather than three years and in stating that ammunition was found.5 He submits the Judge erred in: setting a manifestly excessive starting point; and not imposing home detention as the least restrictive sentence. He does not now contest the uplift of two months for the previous convictions. He submits a starting point of 12 months’ imprisonment was appropriate, and s 16(2) of the Sentencing Act 2002 (the Act) required home detention to be imposed.

[6]                   Ms Cann, for the Crown, concedes the Judge erred in stating the maximum penalty and presence of ammunition. But, on the basis of relevant case law, she submits the 18-month starting point was appropriate and offending involving firearms will generally be met with a prison sentence.

Was there an error in the sentence imposed?

[7]                   Judge Roberts did state there was ammunition present, but he also expressly mentioned the pistol was not loaded. I do not consider his misstatement was material to the sentence. He did err in misstating the maximum penalty for the pistol possession charge. But I do not consider a different sentence should be imposed because of either issue.

[8]                   As Ms Cann submits, it is not inappropriate to look for consistency with sentencing for similar gun offences where the circumstances are similar. Mr Taumihau points to Perez v R, where the District Court set a starting point of 12 months.6 But I consider the Court of Appeal’s finding, that that starting point was “well within range” for a cumulative sentencing of a commercial drug dealer with possession of a military- style semi-automatic, is such a different context that it does not assist here.7 I do not consider the 18-month starting point is out of the appropriate range having regard to the starting points adopted in other cases.8 I do not consider the nature of the firearm

5      New Zealand Police v Rowell, above n 1, at [8].

6      Perez v R [2015] NZCA 267.

7 At [52].

8      R v Richardson CA450/02, 25 March 2003; Smith v Police [2014] NZHC 2196; Waite v New Zealand Police [2015] NZHC 585.

or the absence of ammunition means 18-months was unavailable as a starting point here. And, in R v Smith, Lang J observed that, generally speaking, “any charge of being in unlawful possession of a firearm of this type [a shotgun] is likely to carry a starting point of around 18 months imprisonment”.9 Lang J noted that was “particularly so” where there was an ongoing dispute between gangs, but I do not read his comment as confining that starting point to such context.

[9]                   Neither do I consider a two-month uplift for previous convictions is outside the range available to the Judge, as Mr Taumihau now concedes.

[10]               And I consider Judge Roberts was correct to impose a sentence of imprisonment rather than home detention. The case to which Mr Taumihau refers, Howard v Police, related to a much less serious charge of theft in the context of shoplifting.10 The factors to which Judge Roberts referred in deciding not to impose home detention in this case are relevant and compelling. Although the pistol here was not loaded, Judge Roberts’ quotation of the Court of Appeal’s words in R v Richardson from 2003, was apposite:11

Loaded firearms are anathema within our community. Every Court has a clear obligation to impose sentences which in unequivocal terms express society’s condemnation of their availability because of the potential danger flowing from their possession.

[11]               In 2010, in Martel v Police, Cooper J quoted that and other passages and found it was open to the Judge there not to consider a sentence of home detention would sufficiently denounce or deter.12 Lang J found the same in Waite v New Zealand Police.13 I consider the same applies here. The New Zealand courts’ views of gun offences have not become more lenient since 2003. The reasons are obvious. I dismiss the appeal.

Palmer J

9      Smith v Police [2016] NZHC 851 at [5]. See also Waite v New Zealand Police, above n 5, at [9].

10     Howard v Police [2015] NZHC 150.

11     New Zealand Police v Rowell, above n 1, at [9], citing Richardson v R, above n 8 at [33].

12     Martel v Police HC Hamilton, CIV-2010-419-69, 4 October 2010 at [15];

13     Waite v New Zealand Police, above n 8.