Tangi v R

[2023] NZHC 1997

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-251

[2023] NZHC 1997

BETWEEN

BRANDON VINCENT TANGI

Appellant

AND

THE KING

Respondent

Hearing:	10 July 2023
Appearances:	H Woo and BM Bosomworth for the Appellant H Smith for the Crown
Judgment:	28 July 2023

JUDGMENT OF BECROFT J

[As to appeal against sentence]

This judgment was delivered by me on 28 July 2024 at 4pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Auckland

Public Defence Service, Auckland

TANGI v R [2023] NZHC 1997 [28 July 2023]

The appeal

[1]    Shortly after 8 am on 1 September 2022, Mr Brandon Tangi was alone in the driver’s seat of a vehicle in a public carpark on Shore Road, Remuera. The Police came upon him. He was in breach of his bail. His car was searched. In the vehicle, Mr Tangi had a loaded semi-automatic firearm (an AK-47) with 40 rounds of ammunition in two magazines.

[2]    Mr Tangi pleaded guilty to one charge of possession of a restricted weapon,1 and one charge of possession of ammunition.2

[3]    On 10 May 2023, he was sentenced to 26 months and 14 days’ imprisonment by Judge Bergseng in the District Court at Auckland.

[4]    Mr Tangi appeals his sentence. The essence of his appeal is that the discounts for his previous good character, youth (he is now aged 21), and rehabilitative prospects were insufficient and, if properly applied, would have resulted in an end sentence of two years’ imprisonment or less. That would have triggered consideration of home detention, which he says should have been imposed.

[5]    Mr Tangi is not on bail pending his sentence appeal. He has already served over two months of his sentence.

[6]    This appeal raises some important issues regarding sentence methodology and calculation and discounts for youth.

The facts

[7]    The facts are not disputed. It is agreed they are properly set out by the sentencing Judge. At around 8.10 am on 1 September 2022, Mr Tangi was by himself, seated in the driver’s position of a vehicle that was parked in a public carpark on Shore Road, Remuera.

1      Arms Act 1983, s 45(1). The maximum penalty is four years’ imprisonment.

2      Section 51. The maximum penalty is three years’ imprisonment.

[8]    Mr Tangi was arrested for breach of bail. The Police conducted a vehicle safety check to ascertain that it was up to warrant of fitness standard. In so doing, they located a semi-automatic AK-47 firearm. It was in the front passenger seat footwell, hidden by a blanket.

[9]    The firearm was loaded with a magazine and ammunition containing 16 .223 rounds of ammunition. There was another magazine taped to the loaded magazine with a further 24 rounds. The firearm was easily within reach of Mr Tangi. Had the firearm been used, 16 rounds could have been rapidly discharged, the magazine replaced and reloaded with the second magazine, with another 24 rounds immediately available. Forty rounds of ammunition could have been discharged “all within a matter of seconds”.3

[10]   I am unclear as to what explanation Mr Tangi gave for the gun to the Police. However, he told his Probation Officer, as noted by the sentencing Judge, that some of his associates were connected to the Mongols MC gang — some being patched and some prospecting. Mr Tangi said he needed to be a driver for these associates in return for food and money. He stated that he had been informed by some friends that there was “$10,000 on [his] head”. He advised that he carried a firearm at the time of his arrest “for safety”.   When asked where he obtained the firearm and ammunition,   Mr Tangi advised he was “not sure”.

Pre-sentence report

[11]   The full pre-sentence report pointed to a dysfunctional, abusive and violent background. Mr Tangi has a partner and a very young child. Poignantly, he describes himself as “lost in life”. The report recommended a sentence of community detention with a seven-day-a-week curfew from 7.30 am to 7 pm together with supervision with special conditions. Other possible options were noted as being community work; intensive supervision; and home detention.

3      Police v Tangi [2023] NZDC 9235 at [3].

The sentencing decision

[12]   The Judge noted that at age 21 Mr Tangi had no previous convictions and the pre-sentence report assessed him as having a moderate likelihood of re-offending and causing harm to others. He noted Mr Tangi’s background and that he had experienced physical abuse from his father, often staying with friends from the age of nine to avoid his family situation. He finally left home at age 15 following which he stayed with family members or friends, or slept in his car.

[13]   Mr Tangi stated he had various gang connections. Although he stated this is no longer the case, he described having associates that are patched members of or associated with the Mongols MC gang. The Judge noted that Mr Tangi may not be willing to change or move away from his gang associates. He also noted that Mr Tangi had a partner and a three-month-old child whom he did not see often because his partner, her parents, and his grandparents and father “do not like guns”.

[14]   The Judge noted that Mr Tangi had been in employment since October or November 2022 working a night shift as a forklift driver between 9 pm and 5.30 am. He was well regarded by his employer.

[15]   The Judge noted the pre-sentence report referred to Mr Tangi’s previous gang connections with Young Mangere East Finest, the Tongan Crip Gang, Time is Money and Killer Beez. The Judge accepted that he was no longer connected with the Killer Beez but that Mr Tangi acknowledged some ongoing connections with the Mongols.

[16]   The Judge carefully assessed the starting point in light of a number of cases, particularly Campbell v R where it was said that “possession of a single firearm with no mitigating circumstances generally calls for a starting point in the vicinity of two to three years’ imprisonment”.4

4      Campbell v R [2022] NZCA 579 at [18].

[17]   In Campbell, Mr Campbell was located with two .22 rifles, two shotguns and a fifth firearm — a sawn-off rifle of unknown origin. There, the Judge noted the starting point of two years six months’ imprisonment was within the available range but described it as being on the lenient side.

[18]   In fixing the starting point of the sentence in this case, the Judge reasoned as follows:

[20] Your offending Mr Tangi arises in the context of there being ongoing gang conflicts within the general Auckland area. That has resulted in firearms being discharged on a significant number of occasions. You are someone who clearly has gang connections, as you said to the report writer you were effectively working for the gang as a driver for food and money. You made yourself available for their use. You had understood that there was a price out on your head, so as to protect yourself you chose to arm yourself with a military-style weapon that had the capability of firing 40 rounds of ammunition that would have taken a very short period of time. The firearm was loaded, it was ready to be used, it was in immediate access to you. You simply had to put your hand from one side of the vehicle to the footwell of the passenger side. You would have been able to pick it up and it was there ready to be used. This was all in a public place, a public car park in Shore Road in Remuera. When those factors are taken into account the starting point I see comes at the upper end of that range identified by the Court of Appeal in Campbell, because of those particular features of the firearm which is also, I am advised, a modified firearm. So the starting point I adopt is one of three years' imprisonment.

[19]   The Judge uplifted that starting point by a further two months as Mr Tangi’s offending took place on bail, resulting in a total sentence of 38 months’ imprisonment.

[20]   He deducted 20 per cent for the guilty plea. In respect of discounts for good character, youth and prospects of rehabilitation, he allowed a further deduction of 10 per cent.

[21]   He noted that it was unjustified to give the full 10 per cent credit for previous good character, given that Mr Tangi had previously received a discharge without conviction and had offended here, while on bail.

[22]   As for youth, he said that while youth is often associated with “unplanned behaviour, acting impulsively”, in this case Mr Tangi deliberately chose to arm himself so this was premeditated offending. The Judge accepted Mr Tangi was entitled to some credit for his youth but not at the level suggested by his counsel.

[23]   The Judge was also cautious about Mr Tangi’s prospects of rehabilitation given his discussions with the Probation Officer indicated that he had ongoing gang connections and perhaps some ongoing loyalty.

[24]   All up, for these factors, the Judge reduced Mr Tangi’s sentence by a further 10 per cent. This resulted in a total discount of 30 per cent.

[25]    Therefore, the Judge reduced the sentence by 11 and a half months from the 38-month figure, resulting in a final sentence of 26 and a half months’ imprisonment. The Judge declined to give any further reduction for the time Mr Tangi spent on what Mr Bosomworth described as “restrictive bail conditions”. The Judge did not regard them as unduly restrictive as they had enabled him to undertake night-time employment.

[26]   The Judge concluded by noting the absence of any other mitigating factors which could reduce the sentence to the range where any other sentence apart from imprisonment could be considered.

[27]   Even if, however, the sentence was two years or less, the Judge noted that he would not have imposed home detention. Rather, he would still have imposed a sentence of imprisonment because of the factors he had identified, namely: the nature of the firearm; its ease of access; that it was loaded with 40 rounds available to be fired; in a public place; and Mr Tangi’s gang connections. In the Judge’s view, the only realistic outcome would always have been a term of imprisonment.

Was the Judge’s sentencing methodology correct?

[28]   Judge Bergseng, in mathematically calculating the sentence, deducted the total discount for mitigating factors of 30 per cent (which equated to 11.4 months) from the

38-month figure. This resulted in an end sentence of two years, two months and 14 days’ imprisonment.5

[29]   In fact, in Moses v R the Court of Appeal made clear that this 30 per cent discount should have been taken from what the Court calls the “adjusted starting point”, here the 36 months, not the 38-month figure which included the two-month uplift for personal aggravating features.6

[30]   This point was exactly the careful submission  of Mr Smith  for the Crown. Mr Smith was clear that the appropriate approach, following the two step Moses methodology, would have been “to apply both uplifts personal to the offender and the discounts to the [36 month] starting point of the offending”. The Crown noted that “[i]f the Judge had done so, then Mr Tangi would have been entitled to 10.8 months’ reduction (being 30 per cent of 36 months) and [then] an uplift of two months’ for personal factors, taking the end sentence to 27 months and [one] week of imprisonment”.

[31]   In defence of the Judge, that is not an uncommon process employed in the District Court and, in busy sentencing lists, it has the advantage of simplicity. And, for sentences under two to three years the differences in the end sentence will be small.

[32]   I observe that the application of the Moses methodology, rather than the approach here, will always be a little less favourable to a defendant. By following the Moses approach the end sentence amounts to 27.2 months’ imprisonment. By adopting the approach taken by the Judge, however, the end sentence amounted only to 26.6 months’ imprisonment. And there is a logic to the Moses methodology. The methodology ensures that defendants who receive uplifts for personal aggravating factors do not illegitimately obtain a benefit by that uplift being reduced by the application of a discount to it.7

5      Police v Tangi, above n 3, at [46].

6      Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

7      For a more detailed analysis of the correct sentencing methodology and why there may be a different approach in the District Court see Mo’unga v R [2023] NZHC 1967, which raised the identical issue and which came before me at the same time as the present case.

[33]   In any event the Crown is not formally seeking that this Court correct the mathematical error in this case. The Crown confirmed that the Judge’s approach here is common in the District Court. However, the Crown is of the view that if this Court concludes that some of the District Court’s allowances were insufficient, then any recalculations should follow the Moses approach.

[34]   While on the subject of methodology, in my respectful view, it is unnecessary to finalise sentences with the degree of mathematical exactness as was done here. In this case, the sentence was recorded as being two years, two months and 14 days’ imprisonment. The Judge was not wrong to do so. But perhaps this approach might suggest that sentencing is a form of mathematical science. Most sentences of imprisonment, particularly longer sentences of multiple years, ordinarily need only to be finalised in terms of years and months. In my own view, it would have been sufficient to express this sentence as being one of two years two months’ imprisonment, rounding the sentence down by 14 days in Mr Tangi’s favour.

Approach on appeal

[35]   Section 250(2) of the Criminal Procedure Act 2011 states that a court must allow a sentence appeal if satisfied that:

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[36]In any other case, the Court must dismiss the appeal.8

[37]   As has been emphasised by the Court of Appeal, the proper approach on a sentence appeal is as follows:9

[14] This Court must allow the appeal if it is satisfied that for any reason there was an error in the sentence imposed on conviction and a different sentence should be imposed. The focus is on the sentence imposed, rather than the process by which it is reached. The Court will not intervene where the sentence is within the range that can

8      Criminal Procedure Act 2011, s 250(3).

9      Campbell v R, above n 4 (footnotes omitted).

properly be justified by accepted sentencing principles. To this end the concept of a “manifestly excessive” sentence is well-engrained and there is no reason not to use it.

[38]   The meaning of manifestly excessive, however, is not conceptually vague and should not be considered in a vacuum. As was noted in Tutakangahau:10

It is simply a means of examining the significance of the error to decide whether a different sentence should be imposed. The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of a prior error which often will involve questions such as whether the starting point is too high given the facts, or of incorrect discounts or as to parity with co-offenders.

[39]   A sentence that is manifestly excessive is but one possible error in the sentence imposed. Others include a sentence that involved an error in law or principle, is plainly inappropriate, or proceeded on a materially wrong or mistaken understanding of the facts.

[40]   An appellant must point to such an error, either intrinsic to the Judge’s reasoning, or as a result of additional material submitted on the appeal, which vitiates the sentencing decision.11 I remind myself that as an appeal focusses on the correction of error, it is not “a second shot at sentencing”.12

[41]   The availability of home detention is one focus of this appeal. Home detention is a sentence that is an alternative to a short-term sentence of imprisonment.13 To impose even a short-term sentence of imprisonment, the Court must be satisfied that the purposes for which that sentence is being imposed cannot be achieved by any less restrictive sentence.14

[42]   As to the challenges facing a sentencing Judge in deciding whether to impose a fulltime prison sentence, or a sentence of home detention, the Court of Appeal, in 2013, observed:15

10     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32].

11     R v Shipton [2007] 2 NZLR 218 (CA); and Te Aho v R [2013] NZCA 47 at [30].

12     Polyanszky v R [2011] NZCA 4 at [17].

13    Sentencing Act 2002, s 15A(l)(b).

14    Section 15A(l)(a).

15     Fairbrother v R [2013] NZCA 340 (footnote omitted).

… 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 (CA 253/2008), 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"...

[43]   I first address the issue of whether the sentence is manifestly excessive and if so, whether a different sentence should be imposed, before turning to consider the availability of home detention.

Was the “adjusted starting point” correct?

[44]   Mr Bosomworth, who together with Mr Woo, appeared for Mr Tangi, re-cast his written submissions and indicated that while, in his view, the three-year starting point was at “the top end”, it was within the available range. Plainly that must be so. Here, not only was an unlawful AK-47 semi-automatic weapon located, but also it was loaded with a significant amount of ammunition. A starting point, reflecting both the possession of this firearm and the ammunition, of three years’ imprisonment is simply unobjectionable. It was responsible for Mr Bosomworth to abandon that argument.

[45]   Equally, he accepted that he could not dispute the further uplift of two months for offending while on bail. (I add that I received no information as to the charge(s) for which bail was granted). Nothing more needs to be said on that point.

Was there a sufficient discount for personal mitigating circumstances, particularly youth?

[46]   Mr Bosomworth’s strong submission was that separate discounts should have been provided for previous good character, youth and, perhaps, prospects for rehabilitation.

[47]   He said in particular that, given Mr Tangi’s relative youth, a specific and significant youth discount should have been explicitly given. In his view, while there may be an apparent lack of impulsivity in this case, Mr Tangi is obviously immature,

and easily influenced by older gang members. Given this, Mr Bosomworth submitted that Mr Tangi’s youth deserved greater recognition. He also submitted that even given Mr Tangi’s apparent gang “connections”, rehabilitation is possible as most of these connections had been severed. He conceded however that Mr Tangi’s rehabilitative prospects could have been included with a youth discount.

[48]   In Mr Bosomworth’s view, there should have been a 10 per cent discount for youth (or five per cent at an absolute minimum) combined with discounts of five per cent for prospects of rehabilitation and a further five per cent for good character. Therefore, in his view, the discount additional to the guilty plea should have been at least 20 per cent — not the 10 per cent allowed by the Judge.

[49]   For the Crown, Mr Smith accepted that youth and previous good character could have been addressed individually if only because s 9 of the Sentencing Act 2002 distinguishes between each of these mitigating factors. However, he stressed that the demands of a busy sentencing list require a concise judgment. It is all too easy to analyse sentencing judgments retrospectively and, in more detail than could realistically have been provided by a sentencing Judge. He also noted that at age 21, “good character” for Mr Tangi is a limited concept.

[50]   In the Crown’s view, a 10 per cent reduction for all the mitigating factors mentioned on behalf of Mr Tangi was at the lower end of what could be expected but it was nevertheless within the range available to the Judge and did not reflect any discernible error.

[51]   One of the difficulties in this case is that by apparently including youth, prospects for rehabilitation and good character into the one figure (10 per cent) it is impossible to know what the deductions for each were and how the 10 per cent was comprised. Presumably, any youth discount would have been somewhere between five to eight per cent, but even that is speculative. That is one of the difficulties on appeal when some of the component parts of the overall discount are in dispute.

[52]   The question of discounts for youth is problematic and challenging. Even a cursory reading of the cases shows inconsistences in approach. These inconsistencies include the amount of reduction, the form of the discount — which is sometimes combined with other related mitigating factors (as here) — and the appropriate application of the discount in the face of serious offending.16

[53]   In my view, a youth discount should ordinarily be separately and squarely addressed. After all, under s 9(2)(a) of the Sentencing Act, the age of the offender is a separate statutory mitigating factor to be considered. In this case I make no criticism of the Judge for not doing so, as the approach he adopted is not uncommon. But generally, Judges should grapple with this often difficult issue and make plain the specific discount allowed for it.

[54]   The discount for youth is certainly an evolving concept. There is no “guideline judgment” although cases such as Churchward v R,17 and more recently Dickey v R,18 (which address sentencing for homicide cases) provide general guidance.

[55]   Churchward is too easily interpreted as simply providing criteria against which the availability and extent of the youth discount can be assessed. This interpretation focuses on the following paragraph from that judgment:19

[77]Youth has been held to be relevant to sentencing in the following ways:

(a)There are age-related neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure) and may be more impulsive than adults.

(b)The effect of imprisonment on young people, including the fact that long sentences may be crushing on young people.

(c)Young people have greater capacity for rehabilitation, particularly given that the character of a juvenile is not as well formed as that of an adult.

16 See Kelci Alderton-Armstrong “The Judicial Approach to the Youth Discount in Aotearoa New Zealand” (LLB (Hons) Dissertation, University of Otago, 2022), which addresses this very point and comprehensively discusses the application of the youth discount.

17 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.
18 Dickey v R [2023] NZCA 2, [2023] 2 NZLR 405.

19 Churchward, above n 17 (footnotes omitted).

[56]   Judges are probably more likely to grant a significant discount where many or all of these so-called criteria or factors are said to apply. Youth discounts are much less freely given where there is said to be no impulsivity and evidence of planning or premeditation. This approach is no doubt influenced by the final comments in paragraph [77](a) of Churchward, that young people “may be more impulsive than adults”. However, in my view, it is wrong to focus too narrowly on assessing the “impulsivity” of offending. Such an approach does not take into account the thrust of the whole paragraph. In other words, the offence may not be “impulsive”, but it may nevertheless be the result of immaturity and being “vulnerable or susceptible to negative influences and outside pressures (including peer pressure) …”.

[57]   Care should be taken not to limit the principles in Churchward or Dickey. Declining to grant a youth discount merely because of an absence of impulsivity misinterprets Churchward. The danger with this limited approach is that it is something of a double whammy for the young person. On the one hand, premeditation will have been taken into account in the assessment of a usually higher adjusted starting point. On the other hand, the lack of impulsivity justifies the refusal or (as here) a significant reduction in a youth discount.

[58]   Also, it means that the objective seriousness of an offence is not properly tempered by an offender’s age. In my view, it is the age of the offender, and the consequent lack of maturity, that should primarily mitigate offending, rather than a narrow enquiry as to the impulsivity or otherwise of that offending. Inevitably, over time, a more nuanced approach to youth discounts will be developed. Perhaps an even more principled approach might be to consider age at the first stage of sentencing (step 1 of Moses) so that the adjusted starting point reflects the true culpability of the young person. That issue is outside the scope of this judgment and awaits, what in my view, is an overdue guideline judgment regarding the application of the youth discount.

[59]   So, in this case, while there may have been limited impulsivity, as the Judge correctly observed, Mr Tangi was also certainly influenced by outside pressures, and he was susceptible to gang demands. As a young person, he is also to be regarded as less mature and less capable of evaluating the potential consequences of his actions.

[60]   For all these reasons I am of the view that a discrete and greater discount for youth should have been provided. I conclude it was an error not to do so. A total discount of 15 per cent is justified.

[61]   As was explained in Churchward,20 the youth discount is premised on the greater chances a young person has for rehabilitation. In this particular case, I do not consider that there is a need to make an additional allowance for Mr Tangi’s rehabilitative prospects over and beyond that which is already included in the discount for youth.

[62]   The question of an additional separate deduction for “good character” is difficult, given that at his young age Mr Tangi has had limited opportunity to demonstrate character — good or otherwise. Nevertheless, given his background, to be conviction free at this stage of his life is no small achievement. The Judge was alert to this issue but was reluctant to make a separate allowance for it. Other judges might have done so. But that is part of the sentencing discretion. It does not make the decision not to do so, wrong. In these circumstances it was within the range of permitted discretion. I would be “fiddling” or “tinkering” if I interfered. I agree with the Crown that “good character” in these circumstances does not deserve a separate additional reduction. There was no error in not doing so.

[63] I remain troubled by one aspect of Mr Tangi’s appeal. The pre-sentence report speaks to his very disadvantageous background, which on the face of it clearly contributed to his relative immaturity and this offending, and for which there was no other allowance apparently sought or made. With respect, this is a sentencing decision that would have benefited from the provision of a cultural report under s 27 of the Sentencing Act. No such report was provided, although there is some material in the pre-sentence report which covers that ground — as discussed above at [12]. It would not be stretching credulity to conclude that there was likely a nexus between Mr Tangi’s childhood physical abuse, his leaving home at 15 with no stable base and sometimes sleeping in cars, and his subsequent gang involvement and therefore this offending. Although this issue was not argued by either counsel and in the absence of

20     Churchward v R, above n 17, at [77].

more detailed information, I am prepared to provide a discount of 10 per cent to recognise Mr Tangi’s background.

Conclusion as to reductions

[64]   The total reductions therefore should have been 45 per cent. Applying that reduction to the 36-month starting point, as directed by Moses, that equates to 16.2 months to be deducted from 36 months, which equals 19.8 months. The two-month uplift results in an end point of 21.8 months, which I would round to 22 months’ or one year 10 months’ imprisonment.

[65]   While that sentence is not significantly less than the original sentence imposed in the District Court (two years, two months and 14 days), because it brings Mr Tangi within the home detention range, the difference is material, and the original sentence must be regarded as manifestly excessive. A sentence of one year and 10 months’ imprisonment should be imposed instead.

Should home detention have been granted?

[66]   The first point to make is that the sentencing Judge made clear that he would not have imposed home detention had the end sentence made that a possibility. It was suggested the Judge could have articulated his reasons for this conclusion more clearly. He could have analysed the relevant principles and concluded that, given the need for denunciation and deterrence, the least restrictive sentence in all the circumstances was imprisonment. But this is the inevitable inference from his sentencing remarks, and in any case, it would be a “counsel of perfection” for him to do so given that Mr Tangi was not even eligible for home detention.

[67]   As mentioned at [27], Judge Bergseng emphasised the nature of the firearm that was found, that it was loaded with 40 rounds available to be fired and that it was easily accessible in the footwell of the car, together with Mr Tangi’s gang connections and that it was found in a public place. Emphasising all of these factors suggests that, in the Judge’s view,  the principles of deterrence and denunciation outweighed

rehabilitation in this case. Therefore, imprisonment would be the least restrictive sentence appropriate in the circumstances.

[68]   Mr Bosomworth strongly submitted that Mr Tangi, who was 20 at the time of this offending, has had no previous sentences and certainly no sentence of imprisonment, has had no electronic monitoring, is clearly “suggestible”, is capable of genuine reform, and has good employment prospects with a relatively glowing report from his employer.

[69]   He said that while the decision was finely balanced, this Court should conclude that in all the circumstances the relevant principles of sentencing could be furthered and upheld with the imposition of a sentence of home detention.

[70]   This submission has given me genuine pause for concern. I do not need any persuading that, if possible, a young man with no previous contact with the criminal justice system should not be sent to prison unless it is truly necessary and justified. Neither do I need convincing as to the relative inefficacy of short sentences of imprisonment to rehabilitate young people. Nor the risk in this case of cementing what is at least Mr Tangi’s peripheral attachment to gangs.

[71]   I also note the dissenting judgement of Edwards J in Stehlin v R.21 There, for unlawful possession of a shotgun and its actual use — which resulted in a charge of wounding with intent to cause grievous bodily harm, her Honour would have imposed a sentence of home detention. However, on close examination, the facts, the background of that 18-year-old offender and his prospects for rehabilitation were all markedly different. Unlike that case, here, there were the concerning undertones of Mr Tangi’s public possession of a loaded semi-automatic AK-47 — a weapon which has no legitimate purpose and exists to wound or kill.

[72]   In this case, I have concluded that imprisonment is appropriate and, indeed, inevitable. I say that because, here, in the context of legitimate concern regarding the use of firearms in public, particularly in the context of gang confrontations, Mr Tangi had chosen (even given the influence of others) to arm himself with a loaded semi-

21     Stehlin v R [2022] NZCA 453.

automatic AK-47 machine gun, to have it within easy reach in a public place and to use it for his own protection if necessary.

[73]   Frankly, this is a recipe for disaster. It was not  a remote possibility that if  Mr Tangi was confronted by what he thought were the rivals of his associates, fatalities would result. There is no place for a loaded firearm of this nature, in suburban Auckland, especially in broad daylight, when children would be going to school and families attending to their normal business. That is why a significant deterrent sentence needs to be imposed.

[74]   I accept here that there are some prospects for rehabilitation, that Mr Tangi’s child has a right under the United Nations Convention of the Rights of the Child to be cared for by his father,22 and that his employment wherever possible should be preserved. Nevertheless, taking Mr Tangi’s case at its highest, I conclude that the least restrictive sentence available in these circumstances, consistent with furthering the principles and purposes of the Sentencing Act, is a fulltime sentence of imprisonment.

[75]   In this case, sympathy and concern for Mr Tangi, particularly given his relative youth, obvious immaturity and hopeful prospects of rehabilitation, must yield to a principled deterrent sentencing approach. A sentencing such as this must draw a line in the sand regarding the carriage of loaded semi-automatic weapons in public, in circumstances which suggest a willingness to use them.

[76]   As the Court in Fairbrother observed “a considered and principled choice between the two forms of sentence” must be made.23 And while “both serve the principles of denunciation and deterrence”, the Court must identify “which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing”.24 Here, that sentence is imprisonment.

22     United Nations Convention on the Rights of the Child 1577 UNTS 3 (1989), art 7. This was ratified by New Zealand in 1993.

23     Fairbrother v R, above n 15, at [30].

24 At [30].

Result

[77]   For these reasons, the sentence of two years two months and 14 days’ imprisonment is set aside. I impose a sentence of one year 10 months’ imprisonment. However, that prison sentence must be served. Leave to apply for home detention is refused.

Becroft J