Waite v New Zealand Police
[2015] NZHC 585
•27 March 2015
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
CRI-2015-416-006 [2015] NZHC 585
BETWEEN REX TYRONE WAITE
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 19 March 2015 and by subsequent memoranda received on 26
March 2015
Appearances:
N Wright for Appellant
R Guthrie for RespondentJudgment:
27 March 2015
JUDGMENT OF LANG J [on appeal against sentence]
This judgment was delivered by me on 27 March 2015 at 2 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
WAITE v NEW ZEALAND POLICE [2015] NZHC 585 [27 March 2015]
[1] Mr Waite pleaded guilty in the District Court to a charge of being in unlawful possession of a pistol. On 20 February 2015, Judge Adeane sentenced him to
14 months imprisonment.1
[2] Mr Waite appeals against sentence on the basis that the Judge erred in several respects during the sentencing process, and that this resulted in the imposition of a sentence that was wrong in principle. He argues that the Judge ought to have sentenced him to home detention and not imprisonment.
Background
[3] On the evening of 25 January 2014, the police learned of an altercation that
had occurred between the “Cripps” and Mongrel Mob gangs. Three days later, on 28
January 2014, the police received information that Mr Waite had been involved in the altercation and had been shot in the shoulder. They were told he was recovering from his injuries at home.
[4] The police immediately visited Mr Waite at his home. When they questioned him, Mr Waite acknowledged that he had been involved in the altercation but assured the police he had not been injured. He also volunteered to the police that he was holding a shotgun in his possession. When the police searched his address, they located a sawn-off shotgun that was 650 millimetres in length. Mr Waite acknowledged that the gun was his.
[5] The police also found ammunition at the address, and Mr Waite was originally charged with being in unlawful possession of this. Ultimately, however, the police withdrew this charge because they apparently accepted that the ammunition was not compatible with the shotgun and belonged to someone else.
The Judge’s decision
[6] The Judge selected a starting point of 18 months imprisonment. He applied a discount of four months to reflect Mr Waite’s guilty plea, thereby producing the end sentence of 14 months imprisonment. Given the fact that the end sentence was one of less than two years imprisonment, a sentence of home detention was available and this was the recommendation contained in the pre-sentence report. The Judge rejected this sentencing outcome in the following passages of his sentencing
remarks:2
[5] The defendant has made significant progress, I am told, in his personal life in the period since the offending. That is all very well, but on the other hand, the sentence imposed today must be sufficient to denounce and deter the possession of sawn-off shotguns in an environment where gang tensions are still ongoing, even if the defendant has managed to distance himself from that.
[6] The ultimate deciding issue, in my view, is the fact that in 2009, this defendant had a previous conviction for possession of an offensive weapon. It is not such as to trigger the presumption for imprisonment because it is a little longer ago than that, but it does, in my view, conclusively dispose of the proposition that this sentence should be served by way of home detention. I do not accept that.
[7] The sentence is primarily a denunciatory sentence. I adopt a starting point of 18 months’ imprisonment and I allow the defendant four months’ discount in respect of his guilty plea. At the end of it, he is sentenced to 14 months’ imprisonment for his involvement in this matter.
Grounds of appeal
[7] Ms Wright advances several grounds in support of her overall submission that the Judge ought to have imposed a sentence of home detention. First, she submits that the Judge wrongly took into account the fact that the police also found ammunition at Mr Waite’s address. I do not accept this submission, because the Judge made it clear that he would not give any weight to that fact during the following passage from his sentencing remarks:
[3] Other charges which indicated that ammunition was available for the weapon are not pursued by the Crown, but they would really add little to the central culpability involved in this case; the possession of a sawn-off shotgun which can only have illegal purposes and applications.
[8] In addition, Judge Adeane had presided over a sentence indication hearing on
23 July 2014 at a time when Mr Waite still faced the charge of unlawful possession of the ammunition. On that occasion the Judge selected an overall starting point of two years imprisonment. The fact that the Judge reduced the starting point by six months when he ultimately sentenced Mr Waite makes it clear that he did not wrongly place weight on the fact that Mr Waite had also been found in possession of ammunition. This ground of appeal fails as a result.
[9] Next, Ms Wright contends that the starting point of 18 months imprisonment was too high given the poor condition of the shotgun. She submits that this was such that it was not available for imminent use, and this reduced Mr Waite’s culpability. That may be so, but the Judge was entitled to sentence Mr Waite on the basis of the agreed summary of facts and this did not mention the condition of the gun. The possession of any weapon of this type is a serious matter, particularly given Mr Waite’s acknowledged long term involvement in the gang scene in Gisborne. Charges of this type routinely attract starting points in the vicinity of 18 months imprisonment.
[10] Ms Wright also submits that the Judge erred in law when considering the effect of Mr Waite’s previous conviction for possession of an offensive weapon. In referring to the fact that the previous offence did not “trigger the presumption for imprisonment”, the Judge was clearly referring to s 202BA of the Crimes Act 1961. This section creates a presumption in favour of a sentence of imprisonment where any person is convicted of an offence against s 202A(4), which relates to unlawful possession of offensive weapons, and the offender has previously been convicted within the preceding two years of an offence against either s 202A(4)(a) or (b).
[11] The Judge’s remarks at [6] show he considered that the presumption was not triggered because of the fact that the previous conviction was in 2009, and thereby pre-dated the present conviction by more than two years. As Ms Wright points out, however, the present charge was laid against Mr Waite under s 50 of the Arms Act
1983. As a result, the presumption in s 202BA could never apply regardless of when the earlier conviction had been entered.
[12] I accept that the Judge erred in his approach to this issue, but it does not make any result to the end sentence. Judge Adeane clearly accepted that a sentence of imprisonment should not be imposed solely because of the presumption. As a result, the error was not material to the ultimate outcome. This ground of appeal fails as a result.
[13] Next, Ms Wright submits that the Judge placed undue weight on the previous conviction as a factor counting against a sentence of home detention. She contends that the facts giving rise to this offending demonstrate that it was very much at the lower end of the scale.
[14] The Crown has now produced the summary of facts in respect of the previous offending. This was not before the Judge when he sentenced Mr Waite on the present charge. The summary reveals that the offending occurred during the course of a gang confrontation in which Mr Waite picked up a skateboard and threw it at a member of the opposing gang. He was charged with being in possession of the skateboard as an offensive weapon.
[15] I accept that, on its face, the previous conviction may have appeared to the Judge to be more serious than the summary of facts ultimately establishes it to be. Nevertheless, as Ms Guthrie points out, the earlier conviction arose as a result of Mr Waite’s participation in a gang-related event, and the agreed summary of facts records that Mr Waite is still an associate of the “Cripps” gang. This makes the earlier offending somewhat more serious than it would otherwise be.
[16] Finally, Ms Wright submits that the Judge failed to take into account the fact that, although Mr Waite has received sentences of supervision, community detention and community work in the past, he has not yet been sentenced to home detention. She submits that the Judge ought to have followed the recommendation in the pre- sentence report and imposed that sentence, particularly given the fact that it is the next step up from community detention in the hierarchy of sentences prescribed by the Sentencing Act 2002.
[17] It is not necessary, however, for an offender to have already been subject to the full range of non-custodial sentencing options available to the Court before receiving a sentence of imprisonment. Whether or not a sentence of imprisonment is appropriate in any case will ultimately depend on the circumstances of both the offending and the offender. As MacKenzie J pointed out in Ngaata v Police,3 no sentencing principle requires the next most serious sentence in the hierarchy of sentences to be imposed before imposing a sentence of imprisonment.
Overview
[18] A decision whether or not to impose a sentence of home detention rather than imprisonment is the exercise of a judicial discretion. The discretion is not unfettered. It is governed by the purposes and principles of sentencing contained in the Sentencing Act 2002. As in the case of any appeal against the exercise of a discretion, the appellant must demonstrate that the sentencing Judge erred in principle or the sentence is plainly wrong.
[19] In the present case, the Judge clearly considered that issues of denunciation and deterrence were to the forefront. I cannot say that the Judge erred in making that assessment. The possession of a sawn-off shotgun is a serious matter because, as the Judge remarked, such items have no innocent purpose. They are invariably used in the context of illegal activity, and issues of deterrence and denunciation will often be to the forefront.
[20] Mr Waite faced two additional difficulties in his quest for a sentence of home detention. The first arises out of the fact that, as Ms Wright acknowledged, he clearly has significant issues with alcohol. These have apparently got to the point where, as the pre-sentence report records, he visits his children “on his sober days”. This type of issue can present a serious problem for an offender serving a sentence of home detention, because it can easily lead both to breach of the conditions imposed as part of the sentence and to further offending. Whether or not Mr Waite was a realistic candidate for a sentence of home detention would need to be carefully
considered having regard to that issue.
3 Ngaata v Police HC Wellington CRI-2010-485-73, 27 August 2010.
[21] More importantly, any conditions imposed in conjunction with sentence of home detention rely for their effectiveness to a large extent on an element of trust reposed in the offender not to breach those conditions. This arises out of the fact that it is not possible to supervise the offender on a continuous basis for the duration of the sentence. Nor is it possible to effectively restrict or monitor those who may visit the address at which the sentence is being served. The Court must therefore be satisfied that, if sentenced to home detention, the offender is likely to abide by any conditions imposed as part of the sentence.
[22] Mr Waite has numerous convictions for breaching sentences and orders imposed by the Court. These include escaping from custody as well as breaching sentences of supervision, community work and community detention. The latter related to an occasion where Mr Waite failed to abide by the terms of his electronically monitored curfew.4 He is also currently in breach of an existing sentence of community work because he has failed to report since October 2014.
[23] Furthermore, the writer of the pre-sentence report appears to have reservations as to whether Mr Waite is a suitable candidate for an electronically monitored sentence. The report records that Mr Waite has “a history of poor compliance with less restrictive community based sentences and as such, his compliance with future sentences in the community cannot be predicted.” The report goes on to conclude that a sentence with closer monitoring and a 24 hour curfew “may be more manageable for him”. This is hardly a ringing endorsement for Mr Waite’s suitability as a candidate for home detention.
[24] Taking these factors into account, I cannot say that the Judge erred in principle in declining to impose a sentence of home detention or that the decision is
plainly wrong.
4 The breach of curfew occurred on 23 October 2011, when Mr Waite was absent from his home address for a period of 4 hours and 26 minutes. In a memorandum filed following the hearing in this Court, Mr Waite’s counsel points out that at this time Mr Waite’s partner was in hospital as a result of complications encountered during her pregnancy. She asks the Court to infer that the breach of curfew was related in some way to this fact.
Result
[25] The appeal against sentence is dismissed.
Lang J
Solicitors:
Crown Solicitor, Napier
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