Elwin v Police [2019] NZHC 3258 (13 December 2019)

Last Updated: 18 December 2019

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-442 [2019] NZHC 3258

BETWEEN	LEWYS ELWIN Appellant
AND	NZ POLICE Respondent

Hearing:	9 December 2019
Appearances:	M Phillips for the Appellant C Stubbington for the Respondent
Judgment:	13 December 2019

JUDGMENT OF POWELL J

This judgment was delivered by me on 13 December 2019 at 3.30 pm Registrar/Deputy Registrar

Date:

ELWIN v NZ POLICE [2019] NZHC 3258 [13 December 2019]

[1] On 8 October 2019, the appellant, Lewys Elwin, was sentenced by Judge Roberts in the District Court at Waitākere to 18 months’ imprisonment for the following offending;

(a) receiving over $1,000;¹

(b) unlawful possession of a firearm (representative);²

(c) unlawful possession of ammunition (representative);³

(d) burglary under $500;⁴

(e) unlawful interference with a motor vehicle;⁵

(f) and unlawfully in a building.⁶

[2] Mr Elwin does not challenge the calculation of the sentence but appeals the decision not to commute his sentence to one of home detention.

[3] Due to recording issues no sentencing notes from the District Court are available in respect of this appeal. With the agreement of counsel, in the absence of sentencing notes, the hearing proceeded as if Mr Elwin were to be sentenced de novo, without disturbing the end sentence of 18 months’ imprisonment. As a sentence of 18 months’ imprisonment is a short sentence of under two years, there is no dispute Mr Elwin was eligible for home detention.⁷ The issue to be determined is therefore whether I should exercise my discretion to convert the end sentence of 18 months’ imprisonment to home detention.

¹ Crimes Act 1961, s 246 and 247: maximum penalty of seven years’ imprisonment.

² Arms Act 1983, s 45: maximum penalty of four years’ imprisonment or a fine not exceeding

$5,000.

³ Section 51: maximum penalty of three years’ imprisonment or a fine not exceeding $4,000.

⁴ Crimes Act 1961, s 231: maximum penalty of 10 years’ imprisonment.

⁵ Section 226(2): maximum penalty of two years’ imprisonment.

6. Summary Offences Act 1981, maximum penalty of three months; imprisonment or a fine not exceeding $2,000.

⁷ Sentencing Act 2002, s 15A(1)(b).

Relevant background

[4] On 12 September 2018, a burglary occurred in Swanson. Items taken from the relevant address included a motorboat, a vehicle, six firearms, a large quantity of ammunition, a motorbike, riding gear and tools. The items were valued at approximately $60,000. On 13 September 2018, a search warrant was executed at Mr Elwin’s address in Massey and the items were located there, resulting in the receiving and firearms charges.

[5] On 11 November 2018, Mr Elwin and a co-offender entered the Waitakere City Football Club. Mr Elwin used a crowbar to force open the locked door. He and his co-offender then used the shower facilities and stole two fruit juice drinks. Shortly after, Mr Elwin was seen on CCTV footage peering into and trying the door of a vehicle parked in the clubroom car park. The events of 11 November 2018 resulted in the burglary and unlawful interference with a motor vehicle charges.

[6] Between 28 October 2018 and 29 November 2019, Mr Elwin gained entry to an address in Hobsonville by forcing open a lock on the back of the property. Once inside, Mr Elwin squatted in the address for an unknown period of time, and was charged with being unlawfully in a building.

[7] Having pleaded guilty to this offending, and prior to being sentenced, Mr Elwin was charged with 12 other burglary offences, alleged to have taken place while he was on bail for the present offending (“the new charges”). Despite apparently meeting the criteria for s 12 of the Bail Act 2000 to apply, EM bail was granted by Judge Singh although no written decision was issued.

[8] Mr Elwin has entered not guilty pleas to the new charges. Those charges are now at case review.

The position of the Crown

[9] Ms Stubbington, on behalf of the Crown, in submitting that a sentence of imprisonment is appropriate, places reliance on Turnball v Police which involved
similar dishonesty related offending.⁸ In that case, Gendall J found that the sentencing Judge was entitled to decline home detention either on the basis of the appellant’s attitude and personal characteristics, or on the basis of the offending having occurred within his home, being the proposed home detention address. Gendall J noted:⁹

Judge Garland’s decision to impose a sentence of imprisonment, rather than home detention, was not based on the appellant’s lack of a suitable residence, but specifically on substantive matters including the appellant’s attitude, the gravity of the offending and the fact it occurred within the appellant’s home.

[10] Although Ms Stubbington acknowledged that in this case the proposed home detention address is not the same address as where the receiving offence occurred, Mr Elvin had nevertheless shown he was prepared to offend at his home.

[11] Finally, Ms Stubbington pointed out that Mr Elwin could just as easily access rehabilitation programmes from prison as from home detention; questioned whether Mr Elvin’s new partner, also living at the proposed home detention address, is genuinely pro-social; and whether Mr Elvin’s lifestyle remains “unstable”.

Should home detention have been imposed?

[12] Under s 15A of the Sentencing Act 2002, a sentence of home detention may be imposed only if the court is satisfied that the sentencing purpose cannot be achieved by any less restrictive sentence or combination of sentences, and the court would otherwise have imposed a short-term sentence of imprisonment. This accords with the general principle of sentencing in s 8(g), which requires the court to impose the least restrictive outcome that is appropriate in the circumstances.

[13] Home detention has been recognised as a sentence carrying a considerable measure of denunciation and deterrence, sufficient to supplant a short-term sentence of imprisonment.¹⁰ However, even in cases where home detention is available, the sentencing purposes of denunciation and deterrence can sometimes be met by nothing

⁸ Turnball v Police [2015] NZHC 147.

⁹ At [20].

¹⁰ R v Iosefa [2008] NZCA 453 at [41]; and Fairbrother v R [2013] NZCA 340 at [29].

less than a sentence of imprisonment.¹¹ Indeed, when determining whether a sentence of home detention is appropriate, the offender’s personal characteristics, demonstrated efforts towards rehabilitation and the likelihood of rehabilitative success are important considerations.¹² Ultimately, the Court is required to undertake an evaluative exercise.

[14] In commencing that evaluation it is clear that there is force in Ms Stubbington’s submission that the present offending included offences from Mr Elvin’s then home, and there is no doubt that much of Mr Elvin’s offending at issue took place against a very unstable lifestyle. In addition, the provision of advice to the Court (“PAC”) report notes that Mr Elvin lacked insight into his offending behaviour, the seriousness of his offending and the impact on the victims. Despite that the PAC report recommended a community based-sentence, namely one of supervision and community-detention.

[15] The reason for this, as Ms Phillipps submitted on behalf of Mr Elwin, is that Mr Elwin has a limited criminal history which until the present offending was largely confined to minor dishonesty and drug related offending. Although Mr Elwin did commit the receiving offence at his home, that is in fact the only such offending, and even with regard to the new charges he faces those did not involve further receiving charges or other offending at his home.

[16] More broadly Mr Elvin has not previously received a sentence of imprisonment, nor has he been sentenced to home detention. Until the index offending the most serious sentence imposed was 75 hours’ community work. There was also a nine-year gap in offending between 2006 and 2015. During this time it appears Mr Elwin was employed in various roles including as a landscaper and a café manager, but in 2015 he again became dependent on drugs and alcohol. Since the present offending Mr Elwin has, on the face of it, taken a number of steps to move away from what Ms Phillipps described as an “unstructured” and anti-social lifestyle, moving in with his parents before meeting his current partner, seeing a counsellor to address his depression and substance issues, and has now dictated a fulsome letter of apology for his offending that has been placed before the Court.

¹¹ See, for example, R v Taiepa [2009] NZCA 120 (receiving a stolen vehicle where the circumstances of the offending and the history and attitude of the offender afforded no realistic alternative).

¹² R v Ford [2008] NZCA 64; R v Hill [2008] NZCA 41; [2008] 2 NZLR 381 (CA); and R v Hall [2008] NZCA 207.

[17] With regard to the influence of Mr Elvin’s partner, there is no evidence before the Court that she is a negative influence on Mr Elvin, and I note the address has now been assessed as suitable on two occasions; when the EM bail was granted in respect of the new charges, and for the PAC report.

[18] Finally, for completeness, while Mr Elwin also faces the new charges, the Crown acknowledges that these charges cannot be taken into account in determining whether to impose home detention as they remain unproven. To the extent the new charges raise issues of risk of further offending such that they might render a home detention sentence inappropriate that has been addressed by the fact that the District Court considered Mr Elwin a suitable candidate for EM bail pending trial on those charges.

[19] Taken together, I do not consider there is anything to suggest Mr Elwin would not be able to comply with an electronically monitored sentence of home detention, particularly given there was no issues with compliance with electronically monitored bail to the same address after the new charges were laid. It seems evident that Mr Elwin is in need of pro-social support, structure and employment which he clearly responds well to, evident from his nine-year gap in offending whilst he was employed. I consider a sentence of home detention will best provide for Mr Elwin’s reintegration and rehabilitation into the community, whilst properly meeting the sentencing purposes of denunciation and deterrence. Such a sentence also accords with the desirability to keep offenders in the community as far as that is practicable and consonant with the safety of the community.¹³

[20] Accordingly, I consider that Mr Elwin’s sentence of 18 months’ imprisonment be commuted to one of home detention. I note that a condition that Mr Elwin continue with employment throughout his sentence should be encouraged. Likewise that he attend a Community Alcohol and Drug Services (CADS) programme, as recommended by the PAC report writer.

[21] As early release does not apply to home detention, the maximum period of which is 12 months, and taking into account the time Mr Elwin has spent in prison on

¹³ Sentencing Act 2002, s 16(1).

sentence awaiting appeal (approximately three months) I consider that Mr Elwin’s end sentence be a period of 8 months’ home detention.

Decision

[22] The appeal is allowed. The sentence of 18 months’ imprisonment is substituted with a sentence of 8 months’ home detention, to be served at the venue and on the conditions set out in the PAC report dated 3 October 2019.








Powell J