Allan v Police HC Dunedin CRI 2011-412-37 [2011] NZHC 1942 (1 December 2011)

Last Updated: 4 February 2012

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

_{CRI 2011-412-37}

STEPHEN JOHN ALLAN

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 25 November 2011

Appearances: S Saunderson-Warner for the Appellant

R D Smith for the Respondent

Judgment: 1 December 2011

_{JUDGMENT OF WHITE J}

This judgment was delivered by me on 1 December 2011 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar

Date: ......................

Solicitors: Aspinall Joel, Dunedin: [e-mail]

Crown Solicitors, Dunedin: [e-mail]

ALLAN V NZ POLICE HC DUN CRI 2011-412-37 1 December 2011

[1] Mr Allan appeals against his sentence of 22 months’ imprisonment imposed

in the District Court at Dunedin on 3 October 2011 on the following charges:

(a) one charge of threatening to kill or do grievous bodily harm under s 306 of the Crimes Act 1961 for which the maximum penalty is seven years’ imprisonment;

(b) one charge of presenting a firearm at a person under s 52 of the Arms Act 1983 for which the maximum penalty is three months’ imprisonment and/or a fine not exceeding $1,000; and

(c) two charges of being in possession of a firearm after having had his licence revoked under s 49A of the Arms Act 1983 for which the maximum penalty is one year’s imprisonment and/or a fine not exceeding $4,000.

[2] Mr Allan appeals on the grounds that the sentence was manifestly excessive and ought to have been one of home detention.

Background

[3] On Saturday 16 April 2011 Mr Allan and the victim, with whom he had been in a de facto relationship for a number of years, were working on his property. An argument developed which continued into the following day. At between 8.30 and

9.00 pm on the night of 17 April Mr Allan and the victim began arguing over what were described as chores in the house. Mr Allan left the house and went to his ute where he stood for a few minutes before taking a .44 calibre Rossi lever-action rifle from his ute. The rifle had ammunition in it, but the chamber was empty. He returned to the house, ensuring that the chamber was empty, and came up behind the victim. When she turned around she found that he was pointing the rifle at her head. Mr Allan said to the victim: “I’m deadly serious. There’s two bullets in here, one for you and then I’m going to kill myself”. He continued to point the rifle at her, saying: “if you try and end this relationship I’ll kill you and then me”. While he was holding the rifle, he and the victim began talking about their relationship. She burst into

tears and Mr Allan then moved away and sat down on the coffee table placing the rifle butt on the floor with the barrel pointed towards his lower jaw. He held it there indicating that he was going to use his feet to pull the trigger and by implication kill himself. The victim ultimately managed to persuade him to the put the rifle down.

[4] The victim was so terrified of Mr Allan and held such grave concerns as to his reaction that she sat on what had happened for two weeks until she felt it was safe enough to contact the Police and tell them what had happened. She finally did so on 30 April 2011. On that day the Armed Offenders Squad arrived and executed a search warrant at Mr Allan’s property. A total of 21 firearms and ammunition were located there. He was co-operative with the Armed Offenders Squad during the execution of the search warrant.

[5] At the time Mr Allan explained himself by saying he had a problem with alcohol and that he had relationship problems. He acknowledged that his firearm’s licence had been revoked in April 2005 as a consequence of previous firearms- related offending.

[6] Subsequently, on 16 July 2011 the Police visited Mr Allan’s address in Palmerston and in a farm shed found various other firearms, including a .22 rifle and a pistol. There were also over 1,000 rounds of ammunition. In explanation Mr Allan said he had been given the firearms and had used them to shoot possums. He was on bail for the previous matters when those firearms were located.

Previous convictions

[7] Mr Allan has previous convictions for firearms-related matters. In 1998 he was convicted of being drunk in charge of a firearm. In 2005 he was convicted of carrying a loaded firearm in a vehicle and of being drunk while in charge of a firearm. He also has previous convictions for drink driving and male assaults female.

Personal background

[8] Mr Allan is 55 years old and lived in Palmerston. He entered into a relationship with the victim of his offending some 10 months before it occurred. They resided together in Palmerston on a small farm and endeavoured to sustain a rural lifestyle by dairy farming organically.

[9] His Probation Officer in her Pre-Sentence Report advised that the factors identified as contributing to Mr Allan’s offending were a propensity for resorting to intimidating behaviour in the face of conflict, alcohol abuse, relationship difficulties, offending supportive attitudes and entitlements and an unhelpful lifestyle balance.

[10] Given Mr Allan’s recidivist offending in respect of firearms convictions, his Probation Officer assessed him as being a high-safety risk to the community and particularly to his partner. While Mr Allan has sought assistance through appropriate channels, his admission of ongoing alcohol consumption with his partner, despite the bail condition included to ensure safety, remained a concern and created conjecture as to his sincerity. A long sentence of imprisonment was recommended.

District Court decision

[11] In sentencing Mr Allan District Court Judge Coyle after referring to the summary of facts which Mr Allan admitted, described the offending as follows:

[13] This offending is serious. It is my view your offending was cruelly and coldly calculating. It was designed to maximise the terror experienced by your partner. She did not know the firearm chamber was empty. She would have spent at least two periods of between five and 10 minutes with a firearm pointed at her, not knowing whether you were going to pull the trigger and not knowing whether you were going to end her life or significantly injure her. Your threat (and I use that word loosely) to kill yourself was in my view designed to maximise her terror and has to be seen in the context of the threats you made to not only kill her but kill yourself. It was part of a pattern by you to try and inflict as much terror as possible. In my view you were totally in control of what was happening, totally aware of what you were doing and the effects.

[12] The District Court Judge then referred to the views of the victim, as reflected in the victim impact statement at that time, as follows:

[14] The victim impact statements are very positive. They indicate your partner wants to remain in a relationship with you and work through the issues. I have been handed up today a letter from the victim’s advisor expressing her view that the comments of your partner in the victim impact statement may not be an accurate reflection of her actual views and surmising that your partner remains very much at risk from you. I agree with Ms Saunderson-Warner that those comments are speculative. They are not helpful to me in the sentencing. I place no weight on them at all and put them to one side.

[15] What I am entitled to place weight on are the actions of your victim immediately following the incident in April of this year. As I said earlier, she was so petrified of you and of what might happen that she did not feel safe enough to report the matter to the police for just shy of two weeks. That indicates to me that at that time she was in a state of extreme fear for her personal safety and what you might do to her.

[16] That is significant in my view because she, your long-term partner, knows you better than anyone else. Clearly for her this was not a hollow threat. It was not an act of drunken tomfoolery. It was an act which left her so terrified that for two weeks she could not tell the very people who should be able to protect her because of her fears for her safety.

[17] It is not unusual in my view, both as a Judge in this Court and as a Judge of the Family Court, to find victims of domestic violence after the event are supportive of the perpetrators of the violence. It is part of the insidious evil of the domestic violence cycle that victims feel the need to support those who have perpetrated violence on them.

[18] In my view you are a man who coldly and calculatedly threatened to kill your partner and maximised the effect to achieve what you set out to do and that was to terrorise her into submission.

[13] The District Court Judge then recorded that the sentence needed to have a significant deterrent effect not only for Mr Allan but also for the wider community. It was necessary to impose a sentence which was going to act as a deterrent against domestic violence and in particular domestic violence involving weapons. Mr Allan’s conduct needed to be denounced and he needed to be held accountable in order to instil in him a sense of responsibility.

[14] The District Court Judge noted that in terms of the Sentencing Act 2002 he needed to impose the least restrictive sentence appropriate in the hierarchy. He agreed with the Probation Officer that imposing a sentence involving Mr Allan residing with his partner would be fraught with risk. The District Court Judge said:

[25] You have exhibited behaviour which indicates to me you present a high risk to the safety of your partner. In my view a sentence which leaves you in the community while your issues are unresolved places her at

significant risk of harm. I am not satisfied a community-based sentence, including home detention, would act as a sufficient deterrent to you and the community from this level of domestic violence.

[15] The District Court Judge then described how he calculated the sentences for the charges:

[27] Taking the threatening to kill as the lead charge, I fix a starting point of 12 months’ imprisonment. That is uplifted for your previous convictions. I additionally uplift it for the use of a weapon. I acknowledge you are charged with separate firearms matters but you distinctly used a firearm while threatening to kill your partner. The use of a weapon is not inherent in the threatening to kill charge but it is a significant aggravating feature. It is an aggravating feature that it was loaded, although I do acknowledge you had ensured the chamber was empty. There was a degree of premeditation, which is also an aggravating feature, in that you went out to your ute, you waited for around five minutes and then came back. You clearly had thought about what you were going to do. The combined effect of those aggravating features justifies an increase of nine months, arriving at a provisional sentence of 21 months’ imprisonment. You have pleaded guilty at an early opportunity and you are entitled to a full credit for that of 25 percent.

[28] On the charge of threatening to kill, you are therefore convicted and

sentenced to 16 months’ imprisonment.

[29] On the first unlawful possession of a firearm charge, you are convicted and sentenced to six months’ imprisonment. That is to be served concurrently. On presenting a firearm at a person, you are convicted and sentenced to one month’s imprisonment. That is to be served concurrently.

[30] On the second unlawful possession of a firearm charge, as I have said that is an offence which was committed while on bail and for the reasons I have set out I do not accept that was in effect a wash-up of the other charges. Rather, for the reasons I have stated, you knew you should not have been in possession of firearms but still were and you attempted to justify that on the basis you used them for hunting possums.

[31] I have considered the totality principle in the Sentencing Act 2002 relating to concurrent or cumulative terms of imprisonment. Given that offence was committed while on bail, it is my view it does not offend against the totality principle to impose a cumulative term of imprisonment. On that charge of unlawful possession of a firearm, I fix a starting point of six months’ imprisonment. I uplift it for your previous convictions by two months to eight months’ imprisonment. I give you a full discount for your guilty plea.

[32] On that matter you are therefore convicted and sentenced to six months’ imprisonment. That is to be served cumulatively. The total sentence is therefore one of 22 months’ imprisonment.

[33] On the charge of threatening to kill, I impose the release conditions set out in the pre-sentence report. You are to attend and complete a stopping violence programme to the satisfaction of the service provider and as

directed by a probation officer. You are to attend and complete counselling or treatment with the Community Alcohol and Drug Service to the satisfaction of the service provider and as may be directed by the probation officer. Those conditions are to run to six months beyond the sentence end date.

Further evidence

[16] At the hearing of the appeal, Ms Saunderson-Warner for Mr Allan sought to produce in evidence an affidavit from the victim, Mr Allan’s partner. As Mr Smith for the Crown did not oppose the affidavit being produced, I received it in evidence.

[17] In her affidavit sworn on 10 November 2011 the victim deposed:

2. I went with my partner. Stephen Allan, to his sentencing at the Dunedin District Court on 3/10/2011. I wish to advise that I was misrepresented by the Police and/or Victim Support, in Stephen’s sentencing process.

3. In my statement to detective J W Glover on 1/5/11, I made it quite clear the extreme pressures, that Steve was under as a result of his continual extreme shoulder pain, resulting sleep deprivation and his drinking, plus the stress of the sale of his home and business, and relationship problems and resulting arguments.

4. I never felt, believed or stated that his actions were “cruelly and cold calculated to maximise my terror”. I could see his actions came out of mental confusion, pain, and depression from the above-mentioned factors.

5. It was also stated that I was so terrified of Stephen Allan’s possible reaction if I reported the matter, that I was unable to go to Police until the 30th April. This simply is not true, and I did not say that. I could have, if I had so chosen, gone to the Police at any time in those intervening weeks. I was not feeling terrified of Steve in that time.

6. I contacted the Police on the 30th because I saw Steve slipping back, that weekend, into heavy drinking, taking his painkillers, and resulting confused and depressive state. I was very afraid then that he might harm himself, or me. I did not want either of us at risk. I believe he was beyond helping himself at that point, or hearing me clearly.

7. Steve was remanded in custody for 9 days then bailed to a Dunback address until 23/5/11.

8. On 24/5/11, Bail was granted to our home at [...], upon my agreement and consent, through the District Court.

9. I was under no pressure from Steve to have him back here, it was by mutual agreement.

10. We sought, and attended, individual and joint counselling, which was going well for both of us.

11. On 19/8/2011 Steve moved, at my request, and in consultation with our local Policeman Stefan Witehira, to another bail address and I took out a protection order.

12. I took out this order as Steve was, at times, struggling with staying sober, and when he drank and took painkillers became unstable, and I did then became afraid.

13. I wanted to send him a very clear message that his drinking and resulting behaviour was not acceptable to me.

14. Steve respected and honoured the boundaries that I set. We spent time together each day.

15. He attended Stopping Violence Programme, as ordered by the protection order, and his CADs programme.

16. I am a 57 year old woman, who has had a wide and varied work life in the professional field, also had my own business, raised a family, and now own a small certified organic farm. My ability to assess a situation, take action as necessary, is that of a mature person with wide life experiences and interactions.

17. As I have stated to both Police and Victim support, sober Stephen Allen is an intelligent, honest sensitive, hard working and generous man.

18. He has been struggling with his addiction, his health and our relationship issues and the enormity of what he did that night.

Submissions for Mr Allan

[18] For Mr Allan, Ms Saunderson-Warner accepted that the sentence of

16 months’ imprisonment for the charge of threatening to kill and the concurrent sentences of one month’s imprisonment for presenting a firearm and six months’ imprisonment for the first charge of unlawful possession of firearms (21 firearms) were appropriate, but she submitted that the end sentence of 22 months’ imprisonment was manifestly excessive because the sentence of six months’ imprisonment for the second charge of unlawful possession of firearms (two firearms) ought not to have been imposed cumulatively. She also submitted that a sentence of home detention rather than imprisonment ought to have been imposed.

[19] Ms Saunderson-Warner submitted that the sentence of six months’

imprisonment for the second unlawful possession of firearms charge ought not to

have been imposed cumulatively because the second charge arose out of the same course of conduct in that if the two firearms discovered by the Police on the second occasion had been discovered on the first they would have been included in the first charge. Ms Saunderson-Warner referred to s 84 of the Sentencing Act 2002 and the decisions in R v Clarke and R v Tait1 and submitted that the overall sentence of

22 months was out of proportion to the gravity of the offending.

[20] Ms Saunderson-Warner submitted that the District Court Judge had erred in imposing a sentence of imprisonment rather than home detention because he had focused too narrowly on deterrence and placed too little weight on rehabilitation and what was the least restrictive sentence. She referred to the decisions in Manikpersadh v R2 endorsing the views of William Young J in R v Vhavha3 as

supported in Osman v R.4

[21] Ms Saunderson-Warner then submitted that the District Court Judge had erred in failing to require the Probation Service to check a second address proposed for home detention by Mr Allan. She accepted that it would not be appropriate for home detention to be granted to the address where he would live with the victim, but asked that the Court adjourn the matter to enable the proposed second address to be considered.

Submissions for the Crown

[22] For the Crown, Mr Smith submitted that the end sentence of 22 months’

imprisonment was not manifestly excessive. Applying the totality principle,

22 months’ imprisonment reflected the overall gravity of Mr Allan’s offending.

Mr Smith referred to the decision in Freakley v R.5

[23] On the question of home detention, Mr Smith acknowledged that it was a difficult question and that the least restrictive sentence was appropriate. He

_{submitted, however, that in a case involving firearms and a victim who had sought a}

1 _{R v Clarke CA 128/06, 29 May 2006; and R v Tait CA 163/04, 29 September 2004 at [7]-[11].}

2 _{Manikpersadh v R [2011] NZCA 452.}

3 _{R v Vhavha [2009] NZCA 588.}

4 _{Osman v R [2010] NZCA 199.}

5 Freakley v R [2010] NZCA 497.

protection order, home detention, even to the second proposed address, would not be appropriate. The case involved a serious threat to kill in a domestic violence situation where only a sentence of imprisonment was appropriate. There would be risks involved in home detention at the second proposed address because the Court could not prevent the victim from visiting Mr Allan there and while he would of course be in breach of his sentence if he visited her there was a risk that he might do so anyway.

Reply for Mr Allan

[24] In reply Ms Saunderson-Warner submitted that if the High Court decided that a sentence of home detention would be appropriate, the case could either be remitted to the District Court or the appeal might be adjourned part-heard, in either case to enable a further appendix to be obtained from the Probation Service as to the adequacy of the second proposed address. If the appeal were adjourned part-heard, the issue could then be dealt with by way of telephone conference or memorandum.

[25] Ms Saunderson-Warner also submitted that the decision in Freakley v R

should be distinguished from the circumstances of the present case.

Appellate approach

[26] I intend to follow the appellate approach set out in my decision in Sweeney v New Zealand Police.6 I intend to come to my own view on the merits of the appeal and to recognise that in terms of s 121(3)(b) of the Summary Proceedings Act 1957 the High Court may quash a sentence:

(b) If the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or if the High Court is satisfied that substantial facts relating to the offence or to the offender's character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court ...

6 Sweeney v New Zealand Police HC New Plymouth, CRI-2011-443-028, 26 August 2011 at [29] to

[35].

[27] On the issue of home detention, I note that Court of Appeal decision in Manikpersadh v R has now been delivered and, as the Court held at [12], the proper approach of an appellate Court in cases involved home detention is that:

the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellate review focusing, as in other sentencing appeals to this Court, on the identification of error, if any, in the Court below.

End sentence of 22 months’ imprisonment

[28] There is no tariff for the crime of threatening to kill. In Burchell v R7 the

Court of Appeal said:

[T]here is no tariff for the offence of threatening to kill. The circumstances are always decisive.

[29] Some factors influencing the seriousness of the offending may, however, be identified by reference to s 9 of the Sentencing Act 2002 and previous cases:

(a) That the threat was made against a public official or person, such as a police officer or civil servant;8

(b) Whether the threat related to some vulnerable person such as a child or relative of the person with whom the offender had some disagreement;9

(c) Whether the threat was impulsive or premeditated;10

(d) The degree of precision and specificity of the threat;11

(e) The apparent willingness of the offender to carry out the threat or the degree to which it was meant to be taken seriously;12

7 _{Burchell v R [2010] NZCA 314 at [25].}

8 _{Burchell v R at [25].}

9 _{Chiyabi v R [2008] NZCA 10 at [24]; and s 9(1)(g).}

10 _{Section 9(1)(i).}

11 _{Annas v R [2011] NZCA 49 at [20].}

12 Burchell v R at [26]; Chiyabi v R at [24].

(f) Whether the threat involved or threatened the use of a weapon;13

(g) The level of harm, distress or fear caused to the victim and the impact on their life;14

(h) Whether the threat was made directly to the victim or to some third party;15 and

(i) Where the threat was a reaction of excessive or unreasonable self- defence that may be mitigating;16

(j) Whether a threat is made directly to the victim in person or by some means of communication will not be determinative.17

[30] I note the following decisions specifically:

(a) R v Sykes18 which involved multiple threats made with a hand gun towards a family member in the course of a family argument. There was “close proximity” between the weapon and the victim, repeated threats and a significant impact on the victim. A starting point of

18 months was adopted.

(b) Burchell v R was considerably less serious involving a starting point of four months for impulsive, imprecise and indirect threats towards a public official.

(c) Annas v R involved particularly menacing specific threats toward a victim in public authority with significant impact, the end sentence

_{(with few mitigating factors) was nine months.}

13 _{Section 9(1)(a).}

14 _{Annas v R [at [8].}

15 _{Burchell v R at [26]; and Annas v R at [20].}

16 _{R v Taueki [2005] 3 NZLR 372 (CA) at [32].}

17 _{Annas v R at [22].}

18 R v Sykes HC Christchurch CRI-2008-009-2603, 19 May 2009.

(d) Freakley v R involved charges of committing a crime with a firearm, unlawful possession of a pistol and threatening to kill. The appellant had gone to the complainant’s home and waited her return. When she arrived he pointed a loaded shotgun at her and said he had come to sort things out. He stated “either you will die or I will die tonight”. Eventually the appellant was persuaded to put the firearm down and the complainant was able to flee. The Court of Appeal determined that given the aggravating features, namely the length of the incident, the isolated area in which it occurred and the degree of terror that must have been generated, a starting point of three years’ imprisonment was within the available range.

[31] I agree with Ms Saunderson-Warner that there are factual differences between the decision of Freakley v R and the present case, particularly the greater degree of pre-meditation and the charge of committing a crime with a firearm, which were part of the justification for the starting point of three years’ imprisonment. At the same time, however, there are also similarities between the cases which makes the approach of the Court of Appeal to the question of the available range for offending of this nature relevant.

[32] Taking into account the factors identified in these decisions as influencing the seriousness of the offending, I note the following:

(a) Mr Allan’s threat was directed at his partner, a vulnerable person, with whom he had had an argument;

(b) It was pre-meditated, if not to the same extent as Freakley v R, rather than impulsive;

(c) The threat was precise and specific;

(d) It involved the threatened use of a weapon which was in his possession at the time;

(e) While the weapon was unloaded, his victim took his threat seriously because it appeared that he was willing to carry it out;

(f) Considerable distress and fear was caused to the victim as the District

Court Judge recognised; and

(g) The threat was made directly to the victim by Mr Allan.

[33] When these factors are taken into account, I have little difficultly in concluding that a starting point of significantly in excess of 12 months’ imprisonment for the threatening to kill charge with its maximum penalty of seven years’ imprisonment might well have been justified in Mr Allan’s case. Indeed a starting point of 18 months to two years’ imprisonment might well have been considered appropriate.

[34] This means that even if the sentence of six months’ imprisonment for the second charge of unlawful possession of firearms imposed on a cumulative basis by the District Court Judge were considered inappropriate because, as Ms Saunderson- Warner submitted, it would have been included within the first charge if the Police had discovered the two firearms on the occasion of their first visit, the end sentence of 22 months’ imprisonment would still have been appropriate to reflect the overall gravity of Mr Allan’s offending. It did not therefore offend the totality principle: cf

R v Xie.19

Home detention

[35] In considering whether the sentence of imprisonment rather than home

detention was “clearly excessive” or “inappropriate” in this case, I take into account:

(a) The purposes and principles of sentencing under ss 7 and 8 of the

Sentencing Act and the requirement of s 16 of the Sentencing Act that a sentence of imprisonment should be avoided as far as that is

19 R v Xie [2007] 2 NZLR 240 (CA).

practicable and consonant with the safety of the community: cf Gray v

Serious Fraud Office.20

(b) The availability of a sentence of home detention in terms of s 15A of the Sentencing Act.

(c) The approach mandated by the following decisions of the Court of

Appeal:

(i) R v D:21 that the question whether a sentence of home detention rather than a sentence of imprisonment should be imposed involves the exercise of a discretion;

(ii) R v Hill:22 that there is a real public interest in sentences of home detention being imposed in appropriate cases;

(iii) R v Iosefa:23 that home detention is a real alternative to imprisonment in that it carries with it in significant measure the principles of denunciation and deterrence;

(iv) R v Hill:24 that under s 15A of the Sentencing Act the factors leading to the starting point and the end sentence, including the offender’s personal circumstances, will be relevant to the home detention decision; and

(v) Osman v R and Manikpersadh v R: that the requirements of holding an offender to account, denunciation or deterrence do not logically control the decision whether to commute the otherwise appropriate sentence of imprisonment to home

_{detention. When the offender is in all respects a good}

20 _{Gray v Serious Fraud Office HC Auckland CRI-2010-404-476, 31 March 2011 at [23]-[30].}

21 _{R v D [2008] NZCA 254 at [66].}

22 _{R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [36].}

23 _{R v Iosefa [2008] NZCA 453 at [41].}

24 At [36].

candidate for home detention, the least restrictive outcome principle (s 8(g)) is the primary consideration.

[36] Applying the approach of the Court of Appeal in these decisions to the present case and accepting that the proposed separate address for home detention was not considered by the District Court Judge, I am not satisfied that Mr Allan is “in all respects a good candidate for home detention” because:

(a) As the District Court Judge pointed out at [25] of his Sentencing Notes, Mr Allan exhibited behaviour which indicated that he presented a high risk to the safety of his partner. A sentence which left him in the community while his issues were unresolved placed her at significant risk of harm;

(b) Mr Allan’s alcohol problems exacerbate the risks identified by the District Court Judge. In this respect intoxication is not a mitigating factor: s 9(3) of the Sentencing Act 2002;

(c) As the Probation Officer recognised in her Pre-Sentence Report, Mr Allan’s recidivist offending in respect of firearms convictions meant that he was assessed as being a high-safety risk to the community and particularly to his victim. While he had sought assistance through appropriate channels, his admission of ongoing alcohol consumption with his victim, despite the bail condition included to ensure safety, understandably remained a serious concern and created doubts as to his sincerity and his ability to observe the conditions of a non-custodial sentence;

(d) While the victim in her affidavit considers that Mr Allan ought to be released on home detention and that she would be able to take care of herself, the reality is that there would be nothing to prevent the victim from visiting Mr Allan at the proposed address or Mr Allan, in breach of his home detention, visiting her. As the District Court Judge pointed out in his Sentencing Notes at [17], it is not unusual to find

victims of domestic violence after the event supporting the perpetrator of the violence. It is part of the insidious evil of the domestic violence cycle that victims feel the need to support those who have perpetrated violence on them.25 I appreciate that the victim has taken the time to present her views to the Court and that there are differing views in the Victim Impact Statement, the victim’s advisor’s statement and the new

affidavit. Accepting the victim’s statements as genuine, I hope she will recognise that the wider public interest and Mr Allan’s rehabilitation are better served by a term in a custodial environment where he is isolated from alcohol, drug and relationship problems for a time.

[37] In my view therefore the District Court Judge did not err in deciding that a sentence of imprisonment rather than home detention was necessary in this case.

Result

[38] I am not satisfied that the sentence of 22 months’ imprisonment was

manifestly excessive or that a sentence of home detention ought to have been imposed. The appeal is therefore dismissed.

_{D J White J}

25 R v Taueki [2005] 3 NZLR 372 (CA) at [33].