IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-74 [2018] NZHC 2666

BETWEEN	LEA BLAIR TAHAPEHI
Appellant	

AND	
NEW ZEALAND POLICE Respondent	

Hearing:	4 October 2018	

Appearances:	
K L Chalmers for Appellant
C J Boshier for Respondent	

Judgment:	
17 October 2018	

JUDGMENT OF NICHOLAS DAVIDSON J

A.       INTRODUCTION

[1]       Ms Tahapehi was convicted at trial in the District Court on one charge of possession of ammunition and one charge of possession of a knife.1     The Judge sentenced her to five months home detention.2

[2]       She appeals against her convictions.  She says the car search which gave rise to the charges was unlawful, and that the Judge erred in finding that she was in possession of the knife in a public place.

[3]       Otherwise, she appeals against the sentence, saying the Judge was wrong to place no weight on her version of the facts, and that the sentence is manifestly
excessive.

1	Police v Tahapehi [2018] NZDC 20520.
2	Police v Tahapehi [2018] NZDC 15744.

TAHAPEHI v POLICE [2018] NZHC 2666 [17 October 2018]

Jurisdiction and approach to appeal

[4]       Ms Tahapehi appeals as of right.3    The Court must allow the appeal against conviction if it finds that a miscarriage of justice has occurred.4    A miscarriage of justice is defined as any error, irregularity, or occurrence in or in relation to the trial that created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.5

[5]       The Court may only allow an appeal against sentence if it is satisfied there is an error in the sentence imposed and that an alternative sentence should be imposed.6
If the sentence can be properly justified having regard to relevant sentencing principles, this Court cannot substitute its own views for those of the sentencing Judge. The sentence must be manifestly excessive or inappropriate if the sentencing Judge's discretion is to be interfered with.

The alleged offending

[6]       On the morning of 14 December 2017 Ms Tahapehi was at an address on Barbadoes Street which was under Police surveillance. At 8:30 am she left the address in a car driven by an associate, her then boyfriend. Police followed the car and pulled it over in circumstances which are challenged in this appeal. A knife was seen in the back seat and as a result the car was searched. The sheathed hunting knife, a bag with a face mask and a roll of insulation tape, and a loaded shotgun were seized from the car.

[7]       Ms Tahapehi and her associate were arrested and searched.  In Ms Tahapehi's bra was found a plastic zip-lock bag with 32 rounds of ammunition and a bag of BB-gun pellets. She said that she had seen the ammunition in the car and put it in her bra when she realised they were going to be searched. She said she had no knowledge
of the shotgun.

3	Criminal Procedure Act 2011, s 229 and 244.
4	Criminal Procedure Act, s 232(2).
5	Section 232(4).
6	Criminal Procedure Act, s 250.

[8]       Her fingerprints were found on the blade of the knife.  She was charged with possession of the knife and the ammunition found in her bra. The driver pleaded guilty to possession of the gun and its loaded ammunition.

B.        THE CONVICTION APPEAL

The Judge's findings

[9]       At the conclusion of the prosecution case, Ms Tahapehi’s counsel made an application under s 147 of the Criminal Procedure Act 2017 (“the Act”) for the charges to  be  dismissed.    The  Judge  dismissed  that  application  and  gave  reasons  on
28 May 2018.7    The defence then elected not to call any evidence, and the Judge

entered convictions largely on the basis of his reasoning in the s 147 judgment, which

I summarise here.

[10]      The  s  147  application  was  based  on  a  contention  that  stopping  the  car was unlawful as it was not for any genuine or legitimate purpose. If the detention was unlawful, anything detected by the Police was submitted to be inadmissible.   The charge  of  unlawful  possession  of  the  knife  was  challenged  on  the  basis  that the elements of the charge were not made out.

[11]     His Honour referred to the evidence of the Police officers that the address which the appellant left was of interest to the Police, and there was a raid planned on the property.  When they saw the appellant and her associate leave, they were unable to identify them and followed their car.  One of the officers made enquiries about the car through the Police communications system, and found that the owner of the car was required to be served with a demerit points suspension notice and, on that basis, they stopped the car.

[12]     One of the constables spoke to the driver. The person of interest at the address which the two persons in the car had left was a woman whose name was given in evidence.  The officer did not know what she looked like.  The appellant was asked her name, and the officers then realised that neither occupant was the owner of the car

nor the person of interest from the address. Only after that, on their evidence, did they see a knife on the back seat and carry out the search.

[13]     As to the legality of the search, the Judge distinguished McGarrett v R, in which a person the Police suspected as a methamphetamine courier was pulled over, purportedly pursuant to the Land Transport Act 1998 (“LTA”).8    The Court of Appeal held that was an inappropriate use of Police power.  Here, the Judge said stopping the car was for the lawful purpose of serving the demerit points suspension notice. When the officers saw the driver was male they knew he was not the owner of the car and it was reasonable to ask the identity of the appellant, who could have been.

[14]     The Judge accepted the Police evidence that at this point the knife was spotted, and Search and Surveillance powers were invoked. The Judge said that "if the officer at that stage had done nothing and had elected to back off because he had no power, then in my view the law would be a complete ass".9

[15]     As to the knife, the Judge said there were two possibilities. Either it was in the car before the appellant got into it, and she had handled it beforehand, or else she put the knife into the car as she was getting in.  His Honour said that "whichever of those explanations may be applicable, it is open to conclude that she did have possession or a degree of control over the knife".10   She would have been aware of the knife as she had handled it, and had a degree of control over it because it was easily within her reach in the car.

Issue one: The car stop

[16]     Ms Chalmers for the appellant submits that to lawfully stop a vehicle, the Police must either be exercising their duties under the LTA or have a reasonable belief sufficient to invoke powers under the Search and Surveillance Act 2012 (“SSA”). She submits that although there are powers under the LTA to stop a car for certain LTA related purposes, under cross-examination both Police officers said that the car and the
people leaving the house were of interest and for that reason they followed them and

8	McGarrett v R [2017] NZCA 204.
9	Police v Tahapehi, above n 7, at [21].
10	At [23].

pulled the car over to identify those inside, but only after they thought they had grounds to do so.

[17]     Ms Chalmers relies on McGarrett v R, where the Court of Appeal held that LTA powers cannot be used as a pretext to stop a car for other purposes, and submits the LTA ground was used here as an unlawful pretext.  She says the officers admitted in cross examination that they would have tried to identify who was in the car and may have pulled the car over anyway. The fact there was an alert on the registration of the car was "pure luck", as it gave another reason, also under challenge, to stop the car.

[18]     Counsel submits that the Police had no right to require Ms Tahapehi to provide details of her identity when the car was pulled over.  She says it was not until she had given her name and the Police had returned to their car to search the name, that they came back to the car and saw the knife on the back seat.  She submits that the Police had no right to require the car to remain stopped for any longer than necessary for the purpose of checking whether the driver was the owner.  Relying on Baylis v R, she says that any further detention, for an additional purpose, was unlawful and in breach of her rights under the New Zealand Bill of Rights Act 1990 (“NZBORA”).11

[19]     If the search was illegal, the Court must consider whether the exclusion of the evidence   would   be   proportionate   to   the   impropriety   of   the   search   under s 30 Evidence Act 2006.  Ms Chalmers submits that balancing test favours exclusion of the evidence, as three rights were breached: the right of freedom of movement, the right not to be arbitrarily detained, and the right not to be unreasonably searched.

[20]     She submits this was a "clear and deliberate attempt to use Police power under the LTA to obtain information they could not obtain legally or easily" and that the Police thought the information they sought was more important than the rights of those in the car.

[21]     She says the evidence seized from the car lacked probative value.  The knife was a hunting knife, and at the time of seizure there could have been a reasonable excuse for its presence in the car, and a defence to any charges.

[22]     As to the seriousness of the offending, Ms Chalmers says the ammunition on its own could not have caused harm to anyone, and there was no evidence that the appellant knew of the presence of the shotgun.  She says there was no urgency in the matter; the Police simply wanted to gather information.  Further, she says there were other techniques available to the Police, such as visually identifying the occupants of the car.

[23]     Ms Boshier for the Crown points out that one constable said he would not have stopped the car just to see what the occupants had to say.   There was conflicting evidence as to whether the knife was seen when the officers first stopped the car, or when they went back to the car a second time.

[24]     Ms Boshier accepts that the officers were not entitled under s 114 LTA to require a passenger in the car to give their name and details.  However, she says there was nothing to stop the officers asking, and the appellant volunteered that information when asked.  She says the case is distinguishable from McGarrett.  In that case the officers made it appear they were conducting a regular traffic stop when they always intended to invoke a SSA search for drugs when backup arrived.  Here there was a genuine LTA purpose for stopping the car, and there was no intention to carry out a search of the car prior to sighting the knife.  The intention to identify who was in the car was for the purpose of serving the demerit points suspension notice.

[25]     Once the knife was seen, Ms Boshier submits it was lawful to invoke the SSA

power.

[26]     As to s 30, Ms Boshier submits that if impropriety is established, it does not warrant exclusion of the evidence.   The right which protects unlawful search and seizure is very important, but the search of a car is a lesser invasion than, say, the search of a home. She says there was no bad faith on the part of the police; the officers genuinely believed they had the power to pull the car over under the LTA.  She says the evidence obtained is highly probative and crucial to the prosecution’s case.

[27]     Ms Boshier also says the offences are "reasonably serious", carrying three and four year maximum sentences. She refers to Kalekale v R, where the Court of Appeal said:12

Where the offending is serious and the evidence is reliable, especially in circumstances where the impropriety was more in the nature of an oversight than an egregious breach of rights, it is more likely this factor will result in the evidence being admitted.

Analysis

The lawfulness of the stop

[28]     This appeal raises important questions about Police powers to stop cars under the LTA.  The position of the Crown was developed further in oral submissions, and put on alternative bases. First, Ms Boshier says that the stop and detention were lawful because the officers were carrying out their duty in attempting to serve the demerit point suspension notice.   Even if that outcome was a matter of chance, it was proper to check the registration on the Police systems, and to act once the demerit points issue was known.

[29]     Notwithstanding that, Ms Boshier submits the Police were entitled to pull over the car under s 114 in any event to ascertain details of the driver.  The fact the Police were interested in that information for non-driving or vehicle related reasons she submits is immaterial, as the LTA empowers them to pull over a car and check, for example the driver’s licence, registration, and warrant, and that is what they did.

[30]     The power to stop a car under s 114 is not untrammelled.

114       Power to require driver to stop and give name and address, etc

(1)        An enforcement officer who is in uniform, or wearing a distinctive cap, hat, or helmet, with a badge of authority affixed to it, may signal or request the driver of a vehicle to stop the vehicle as soon as is practicable.

(2)        An enforcement officer in a vehicle following another vehicle may, by displaying flashing blue, or blue and red, lights or sounding a siren, require the driver of the other vehicle to stop.

(2A)     Subject to subsections (4) and (5), the driver of a vehicle that is stopped by an enforcement officer under this Act must remain stopped for as long as is reasonably necessary for the enforcement officer to complete the exercise of any powers conferred, or duties imposed, on an enforcement officer by this Act.

(3)        An enforcement officer may require the driver of a vehicle that is stopped under this Act to –

(a)        remain stopped for as long as is reasonably necessary for an enforcement officer to obtain the particulars referred to in paragraph (b), or to complete the exercise of any other power conferred on an enforcement officer by this Act; and

(b)	on demand by an enforcement officer,—

(i)         give his or her full name, full address, date of birth, occupation, and telephone number, or such of those particulars as the enforcement officer may specify; and

(ii)       state whether or not he or she is the owner of the vehicle; and

(iii)      if the driver is not the owner of the vehicle, give the name and address of the owner or such particulars within the driver’s knowledge as may lead to the identification of the owner.

(4)        The driver of a vehicle that is stopped under subsection (2) is not obliged to remain stopped if the vehicle with flashing lights and siren does not itself stop in the near vicinity of the place where the driver has stopped.

(5)        An enforcement officer may require a driver to remain stopped on a road for as long as is reasonably necessary to enable the officer to establish the identity of the driver, but not for longer than 15 minutes if the requirement to remain stopped is made under this subsection only.

(6)        An enforcement officer may arrest a person without warrant if the officer has good cause to suspect the person of having—

(a)        failed to comply with this section or a signal or request or requirement under this section; or

(b)	given false or misleading information under this section.

[31]     The predecessor to s 114 was s 66 of the Transport Act 1962.  While there are some differences, the substance of the sections is the same.  In R v Jeffries, the Court of Appeal held that the section could not be used for non-Transport Act purposes.13

That case was cited in McGarrett as applicable under the new regime: s 114 "cannot be used for non-road transport purposes".14

[32]     In McGarrett the stop was unlawful because the Police purported to pull over the car to check its registration and warrant, when  they had no interest in that information.  The real purpose of the stop was stop the car while Police backup was called in.

[33]     The reason for the stop is relevant to its lawfulness. While the LTA empowers officers to stop cars for no other reason than to enforce the LTA, for example, to check licences, warrant of fitness, registration etc, that enforcement must be the genuine object of the stop.  It cannot be used as an 'excuse' to stop the car for an unrelated purpose.   That is the import of McGarrett, consistent with the need for clear delineation of Police powers and transparency in their exercise.

[34]     The question is whether the situation is any different where, as here, there is a legitimate LTA purpose specific to the vehicle in question which comes to the attention of officers while engaged in another, non-LTA, purpose.  The legitimate purpose came to the attention of the officers before the stop, when they found the demerit points notice alert on their Police system. Ms Chalmers says this makes no difference, as the true purpose of the stop was to get details of the occupants of the car for something entirely unrelated to the demerit points, so that was used as an 'excuse'.

[35]     The purpose of the stop, and whether the LTA is invoked as an 'excuse', are in the first place questions of fact. In McGarrett, the Court was met with the submission on behalf of the Police that they had two powers in mind - the LTA power, and the Search and Surveillance power -  and that both could be used for their corresponding purpose.   The Court rejected this, finding there was "nothing in the evidence that would suggest [the officer's] actions were genuinely done for the purpose of enforcement and administration of the LTA".15     If there is such evidence, then it is possible that there could be dual purposes, or that the purpose is dynamic and changes
as new information comes to light.

14	McGarrett v R, above n 8, at [18].
15	At [19].

[36]     In this case, when the Police started following the car, they were interested in the identity of its occupants for non-LTA related purposes. At that point they did not stop the car and had no authority to do so, under the LTA or otherwise.  It was once the demerit points suspension came to the attention of the officers, and only then, that they pulled the car over.

[37]     If  the  Police  are  interested  in  a  car  or  its  occupants  for  some  non-LTA reason that in my view should not disqualify them from pulling a car over once a legitimate LTA reason arises.  If the officers had seen the driver driving dangerously, there can be no doubt they could and should have intervened, whatever their prior interest in the car and its occupants.

[38]     Given this sequence, and the evidence of the officers, I am satisfied that when the car was stopped the officers had the genuine purpose of issuing the LTA notice. The fact that the officers were interested in the identity of the occupants for other reasons did not undo that. Indeed, in my view it would be a curious result if the officers had not taken the opportunity to issue the notice when it arose. Unlike McGarrett, the evidence shows that the action of stopping the car was with a genuine LTA purpose, although it was a stroke of luck that they learned of the demerit points.  It would be unworkable if the law required the Police to put aside a lawful purpose because they paused to recognise it was not the real or underlying interest in stopping the vehicle. When would the lawful purpose have sufficient weight to stand on its own to put aside the taint of opportunism?  That in my view would be an unworkable and impractical overlay to impose on the Police.

The lawfulness of the ‘continued detention’

[39]     The officers were justified in stopping the car, but there remains the question whether the car and occupants were detained after the legitimate purpose was spent, and whether that gives rise to any impropriety.

[40]      Section 114(3) states that an enforcement officer may require a driver to stop "for as long as is reasonably necessary… to obtain the particulars referred to in paragraph (b), or to complete the exercise of any other power conferred on an enforcement officer" by the LTA.  The particulars in paragraph (b) are the personal

details of the driver and the identity of the owner of the car.  Section 114(5) states the enforcement officer "may require a driver to remain stopped on a road for as long as is reasonably necessary to enable the officer to establish the identity of the driver, but not for longer than 15 minutes if the requirement to remain stopped is made under this subsection only."

[41]     The evidence of the constable who first approached the car is that he requested details of the driver.  He then asked for details of Ms Tahapehi, who was sitting in the front passenger seat.  He returned to the patrol car and searched those details, then went back to the car.   Only then did he see the knife in the back seat.  The other constable’s evidence is different.  He does not mention his colleague returning to the patrol car, which suggests that the constable saw the knife prior to moving away from the detained car.

[42]     In cross-examination this other constable stressed that his memory of the events was not clear.  The account of the constable who first approached the car is clearer.

[43]     In Roper v Police the Court of Appeal held that "once the driver has stopped and has supplied the information thereafter sought, that obligation to stop (and remain stopped) has been exhausted."16  Once the details relevant to the demerit points notice had been obtained, the appellant and her associate were, as a matter of law, free to leave.  In my view, continued detention beyond that point would have been unlawful.

[44]     There is no evidence of what (if anything) the constable said to the occupants of the car as he returned to the patrol car to check their details.  This makes it harder to determine whether there was a continued detention, but there is no evidence that a direction was given to stay where they were.   The fact that the appellant and her associate stayed parked up suggests they believed they were still being detained. The legal position in this country (contra some jurisdictions) is that someone is not detained simply  because  they  think  they  are  being  detained.    The  question  is  whether,
objectively, the belief that they are being detained is a reasonable one.17

16	Roper v Police [1984] 1 NZLR 48 (CA).
17	R v Goodwin (No 2) [1993] 2 NZLR 390 (CA).

[45]     The Police did not disabuse the occupants of the car of their belief that they were still being detained and my conclusion is that it was reasonable for them to believe they were still under detention. The detention between the details of the driver being ascertained and the subsequent discovery of the knife on the back seat was, in my view, unlawful.

The s 30 balancing test

[46]     Despite an unlawful detention, the balancing test in s 30 strongly favours the evidence being admitted.  Exclusion of the evidence would be disproportionate to the impropriety, taking into account the need for an effective and credible system of justice.18

[47]     To be free of unlawful detention is a vital right but the impropriety in this case was of the most minor kind.  The detention I find to be unlawful was only for a few minutes, sandwiched between two lawful periods of detention. There was no bad faith on the part of the Police, who stopped the car for the lawful purpose of serving the LTA notice on the owner of the car.

[48]    The evidence obtained following the unlawful detention is vital for the prosecution, and there are no issues as to its reliability.  While the charges against
Ms Tahapehi are not particularly serious in themselves, they are together sinister, but this is only one factor.  To exclude the evidence in such circumstances would be out of all proportion to the impropriety. The evidence was admissible under s 30 Evidence Act.

Issue two: Possession of a knife in a public place

[49]     The elements of the charge of possession of a knife in a public place are:

(a)	Knowledge that the item was there;

(b)	Ability to physically control the item (proximity); and

(c)	Intention to control the item.

18	Evidence Act 2006, s 30(2)(b).

[50]     Ms Chalmers submits neither the driver nor the appellant were seen putting anything in the car when they got in and drove away.  There was no evidence the appellant could see the knife while in the car, and so it is not proved she had knowledge of it.  In oral submissions Ms Chalmers said that a bag and other items on the back seat may have blocked Ms Tahapehi's view.  Her fingerprint was found on the blade, not on the handle or sheath. Ms Chalmers says this means or could mean the appellant did not place the knife in the car, but only that at some point in the past Ms Tahapehi had touched the knife.

[51]     She submits that the effect of the decision under appeal is that if a person touches an item in any circumstances, they have knowledge and possession of it for perpetuity, and that this is an absurdity.  Of course, counsel is right, that would be an absurdity.   Having once had possession does not mean an item is in that person’s possession at some later time.

[52]     Ms Boshier submits that the knife was plainly within reach of the appellant when she was in the car.    In Ellmers v Police, a weapon was said to be under the offender's  control  inside  her  car  when  she  was  standing  outside  of  it.19       In Park v Police, a weapon found in a backpack in the boot of the offender's car was said to be in the offender's "actual or potential physical custody or control", satisfying the requirements of the offence.20

[53]     She submits it was open for the Judge to find that the appellant was aware that there was a knife in the back seat of the car.   It was a relatively large object in plain view. Her fingerprint on the blade proves that she had handled it, at some point. There was no evidence to suggest that she had touched the knife previously then was unaware of or had forgotten about it being in the car, but there is no onus on the defence to prove such an alternative explanation. The appellant had control of the knife in that it was within easy reach.   Where two or more people have a degree of control over something, it may be said to be in the control of both and it is not enough for the appellant to say it was in the possession of the driver.  Finally, Ms Boshier says it can

be inferred from her having control of the knife, that the appellant had an intention to exercise that control.

Discussion

[54]     This ground of appeal lacks merit.  The evidence clearly establishes, through the fingerprint, that the appellant touched the knife at some point. She was in the car, with the knife on the back seat. While the evidence does not establish the sequence of events regarding the knife, when the appellant touched it, and how it got into the car - the overwhelming inference, when a knife that a person has touched is in a car with that person, is that first person knows about it, and has and intends to have control over it. The knife was large and obvious to anyone in the car.

[55]     It is not the mere presence of the fingerprint, but the combination of that, and being in the car with it while it was in plain view, which gives rise to the inference of possession and control.

Outcome

[56]     The appeal against the conviction entered against Ms Tahapehi is dismissed.

C.       THE SENTENCE APPEAL

The Judge's decision

[57]     The Judge identified one aggravating feature only of the offending, that the appellant tried to conceal the ammunition from the Police.  There were no mitigating features.  The Judge observed that the occupants of the car were "involved in the use of methamphetamine at the time, and that must be a factor against which the background of this offending is tainted ".21

[58]     The Judge said his concern was that "we are into the area of firearms".  The presence of black tape and a face mask "all raises concerns as to what really was going on, on this particular occasion".22  Ammunition, he said, leads to use in firearms, which

leads to serious risk to the community, and the Judge emphasised the need for a deterrent sentence in the circumstances.

[59]     His Honour had little to guide the sentence and there were no cases referred to the Court where a person was sentenced solely on the basis of possession of ammunition. The Crown sought a starting point of 10 months, and the defence sought three months.  The Judge adopted a nine month starting point, uplifted by one month for the knife charge.

[60]     The  Judge  recognised  that  the  charge  involved  possession  only,  and

Ms Tahapehi does not have a significant criminal history. His Honour was of the view that a sentence of five months home detention was appropriate.

Submissions

[61]     Ms Chalmers submits that the Judge erred in not taking into consideration

Ms Tahapehi's version of the events, that she was only in possession of the ammunition for a matter of minutes, having hidden it on her person out of misguided loyalty to her then boyfriend. She submits the Judge was inconsistent in saying there were no other aggravating features but referring to other items and conduct in the car which raised a concern as to "what was going on". She submits that any aggravating feature needs to be proved beyond reasonable doubt.

[62]     Ms Chalmers refers to R v Kane, in which the offender was a gang member who had a shotgun and ammunition in his possession, where there was no connection between the gun, ammunition and any other offending.23   A starting point of 12 months was adopted.  Similarly, in Perez v R, a 12-month starting point was adopted where the offender was in possession of a semi-automatic firearm in connection with drug dealing offending.24

[63]     Counsel says these cases were significantly more serious than Ms Tahapehi's offending. Once personal circumstances are taken into account (lack of relevant

offending, the fact she was in employment, the malign influence of her associate) she submits a sentence of community work ought to have been imposed.

[64]     Ms  Boshier  says  there  was  no  error  in  the  sentence.     She  refers  to Blackett v Police, where the appellant was on parole when Police arrived at his house and found two rifle bolts and 366 rounds of ammunition.25   The sentencing Judge took a starting point of 20 months, but on appeal it was held that a starting point of no more than 12 months was appropriate.  In Tamepo v Police the offender was found to have four .22 rounds of ammunition in a shoulder bag.  An end sentence of seven months imprisonment was imposed, cumulative on other sentences.26   Given that a 30 per cent discount was applied, it can be inferred that the starting point was 10 months.  While
Ms Boshier accepts the offending here was less serious than Blackett, she says it is comparable to, if not more serious than, that in Tamepo.

Discussion

[65]     In light of the cases cited and the facts proved, the starting point of nine months was  too  high.    Given  the paucity of directly relevant  case law,  this  sentencing contributes to setting the starting point range for offending of this type.  The Court must recognise a difference in starting points between cases where possession of ammunition is in tandem with possession of an associated weapon or some other significant charge.  The danger involved in possession of ammunition and a gun is higher than ammunition in isolation. A clear differentiation between the two types of offending is needed to reflect the gravity of the offending.

[66]     The Court should be mindful of Ms Tahapehi's version of events which is plausible, and she should be given the benefit of the doubt.   The fact she tried to conceal the ammunition from the Police is aggravating but overall the offending is less serious than if she put the ammunition in the car for a nefarious purpose, for example, one associated with a firearm. I agree that it cannot be assumed she did have any such purpose.  The items in the car other than the knife and ammunition were not clearly linked with her.

[67]     Her offending is much less serious than in Kane, Perez, and Blackett.  In my view Tamepo should be treated with care. On appeal in that case, the only submission made was that the overall sentence, made up of four separate cumulative sentences, was too high in light of the totality principle.  The appeal Judge said it was high, but within range overall. The specific starting points for each offence were not addressed. There were no separate uplifts for aggravating features personal to the offender, so these must have been built into the starting point.   The offender had a significant criminal history and the offending occurred while on bail.  On appeal, the Court said, "while the particular offending was not necessarily serious itself, the conduct demonstrated a contempt for the Court", and "it was necessary to impose a stern prison sentence to meet… sentencing goals".27

[68]     In my view the appropriate starting point, in order to reflect the criminality of the offending and to distinguish it from similar offending where a firearm is also involved, is six months imprisonment.  With the one month uplift for possession of a knife that results in an overall sentence of seven months imprisonment.

[69]     The Judge made no error in imposing home detention rather than community detention or community work.  The sentence was intended to deter, and home detention adequately meets that objective. A final sentence of three months two weeks home detention is the appropriate outcome.

D.       DISPOSITION

[70]     The appeals against conviction are dismissed.  The appeal against sentence is allowed.  The sentence is quashed and replaced with one of three months two weeks home detention.

……………………………………….
Nicholas Davidson J

Solicitors:
K L Chalmers, Barrister, Christchurch
Raymond Donnelly & Co, Christchurch

27	Tamepo v Police, above n 26, at [17] and [19].