CHARLETT v NEW ZEALAND POLICE [2022] NZHC 938

CHARLETT v NEW ZEALAND POLICE [2022] NZHC 938 [5 May 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-42[2022] NZHC 938BETWEEN DANIEL CHARLETTApplicantAND NEW ZEALAND POLICERespondentHearing: 5 May 2022Appearances: A McKenzie for AppellantJ H Whitcombe for RespondentJudgment: 5 May 2022JUDGMENT OF OSBORNE J[Results][1] Daniel Charlett, 19 years old at the time of his offending, was sentenced in theChristchurch District Court by Judge Couch to a total of 28 months' imprisonment onthe following charges:(a) injuring by unlawful act;1(b) threatening to damage a dwelling house with intent to intimidate;2(c) exceeding the speed limit;3(d) possession of cannabis plant for supply;41 Crimes Act 1961, s 190 – maximum penalty of three years' imprisonment.2 Crimes Act, s 308(a) – maximum penalty of three years' imprisonment.3 Land Transport Act, s 40; Land Transport (Offences and Penalties) Regulations 1999, regs 3 and4; Land Transport (Road User) Rule 2004, r 5.1(1) – maximum penalty of a fine of $1,000.4 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(c) – maximum penalty of eight years' imprisonment.(e) possession of cannabis utensils;5(f) driving a vehicle while his licence was suspended;6 and(g) operating a vehicle in a manner causing it to undergo sustained loss oftraction.7[2] Mr Charlett appeals against that sentence on the basis it was manifestlyexcessive and submits that a sentence of home detention was appropriate.[3] I have heard detailed submissions today which include submissions on aprocedural aspect of the case arising from the fact that the sentencing Judge hadpreviously been the Judge who gave a sentencing indication which Mr Charlett hadrejected. I will say more about that in my reasons decision.[4] I have regard to the period Mr Charlett has spent in prison.[5] For now, I announce the result of this appeal is as follows:(a) the appeal is allowed;(b) all sentences (totalling 28 months' imprisonment) are quashed;(c) in lieu of the sentence of imprisonment, Mr Charlett is sentenced to atotal period of nine months' home detention. The sentences applyingto each of the charges are as follows:(i) on the charge of possession of cannabis for supply: five months;5 Misuse of Drugs Act, s 13(1)(a) and (3) – maximum penalty of one year's imprisonment and/or afine of $500.6 Land Transport Act 1998, s 32(1)(c) and (3) – maximum penalty of three months' imprisonmentor a fine of $4,500; and at least six months' disqualification from holding a driver licence.7 Land Transport Act, ss 22A, 35(2), 36A(1)(c) and (4) – maximum penalty of three months'imprisonment or a fine of $4,500; and at least six months' disqualification from holding a driverlicence.(ii) on the charge of threatening to damage a dwelling house: threemonths; and(iii) on the charge of injuring by an unlawful act: one month(d) the three sentences at [5](c) are cumulative;(e) on the remaining charges, the substitute sentence is of one month to beserved concurrently;(f) there are the standard conditions attaching to the sentence of homedetention; and(g) there are the following special conditions:(i) the duration of the home detention sentence is to be served atthe home detention residence, namely [REDACTED];(ii) Mr Charlett is to attend and complete any recommendedintervention for alcohol and drug use to the satisfaction of theProbation Officer; and(iii) Mr Charlett is to undertake any recommended counsellingtreatment or program to the satisfaction of the Probation Officer.Osborne JSolicitors:Crown Solicitor, ChristchurchCopy to: A McKenzie, Barrister, Christchurch