CHARLETT v NEW ZEALAND POLICE [2022] NZHC 1029

CHARLETT v NEW ZEALAND POLICE [2022] NZHC 1029 [13 May 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-42[2022] NZHC 1029BETWEEN DANIEL CHARLETTApplicantAND NEW ZEALAND POLICERespondentHearing: 5 May 2022Appearances: A J McKenzie for AppellantJ H Whitcombe for RespondentJudgment: 5 May 2022Reasons: 13 May 2022JUDGMENT OF OSBORNE J[Reasons]Introduction[1] Daniel Charlett, 19 years old at the time of his offending, was sentenced1 in theChristchurch District Court by Judge Couch to a total of two years and four months'(28 months') imprisonment on the following charges:(a) injuring by unlawful act;2(b) threatening to damage a dwelling house with intent to intimidate;31 Police v Charlett [2022] NZDC 4014.2 Crimes Act 1961, s 190 – maximum penalty of three years' imprisonment.3 Crimes Act, s 308(a) – maximum penalty of three years' imprisonment.(c) exceeding the speed limit;4(d) possession of cannabis plant for supply;5(e) possession of cannabis utensils;6(f) driving a vehicle while his licence was suspended;7 and(g) operating a vehicle in a manner causing it to undergo sustained loss oftraction.8[2] Mr Charlett appealed against that sentence on the basis it was manifestlyexcessive and that a sentence of home detention was appropriate. In a ResultsJudgment, I allowed the appeal, quashing the sentence and replacing it with one ofnine months' detention (with conditions).9 These are the reasons for that decision.FactsA Injuring by unlawful act[3] In the evening of 16 March 2021, Mr Charlett drove to a pizza store at EastgateMall, Christchurch. At the same time, the victim, a man whom Mr Charlett knew,arrived. He followed the victim into the store and began questioning him about analleged debt. Without warning, Mr Charlett punched the victim with full force on hisnose, causing him to stumble backwards, and his nose to become deformed and bleed.Mr Charlett then exited the store and drove away. The victim was treated at the sceneby ambulance staff and sustained a broken nose. This led to a charge of injuring byan unlawful act.4 Land Transport Act 1998, s 40; Land Transport (Offences and Penalties) Regulations 1999, regs 3and 4; Land Transport (Road User) Rule 2004, r 5.1(1) – maximum penalty of a fine of $1,000.5 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(c) – maximum penalty of eight years' imprisonment.6 Misuse of Drugs Act, s 13(1)(a) and (3) – maximum penalty of one year's imprisonment and/or afine of $500.7 Land Transport Act, s 32(1)(c) and (3) – maximum penalty of three months' imprisonment or afine of $4,500; and at least six months' disqualification from holding a driver licence.8 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.9 Charlett v Police [2022] NZHC 938.B Threatening damage[4] This assault was witnessed by another man whom Mr Charlett knew. A shorttime later, Mr Charlett called this man and threatened him, saying: "Don't go to thePolice and get me charged or I'll come to all your houses and burn them down. I'llsmash out all your windows of your house and car." This led to a charge of threateningto damage a dwelling house with intent to intimidate.[5] In explanation, Mr Charlett stated these two incidents were a result of ongoingissues between the parties.C Excess speed[6] On the evening of 13 May 2021, Mr Charlett was clocked by police as drivingat 114 kilometres per hour in the Lyttelton Road Tunnel. The tunnel has a strict 50kilometre per hour speed limit. A second vehicle, whose occupants Mr Charlett knew,was travelling immediately behind Mr Charlett at a similar speed. In explanation, MrCharlett stated the vehicle behind was travelling too close. This led to the excess speedcharge. Mr Charlett was also suspended from driving any vehicle until 11 June 2021.D, E, F Possession of cannabis (for supply) and utensils/driving while suspended[7] On 5 June 2021, while his licence was suspended, Mr Charlett was driving avehicle on Uxbridge Street, Christchurch, when he was stopped by police. Police sawa cannabis bong in the footwell of the back-left passenger seat and invoked the Searchand Surveillance Act 2012 to search for drugs. In his vehicle police found the cannabisbong, 10.83 grams of cannabis across seven point bags, a further bulk amount of 19.44grams of cannabis, small electronic scales, 33 unused point bags and $780 in cash.This led to charges of driving while suspended, possession of cannabis for supply andpossession of utensils.G Loss of traction[8] On 15 July 2021, Mr Charlett was driving on Maces Road, Christchurch. Heaccelerated heavily, causing the rear wheels of his vehicle to spin. He carried onspinning the wheels for long enough to create large plumes of smoke from both rearwheels and to cause the rear of the car to "fishtail". This led to a charge of sustainedloss of traction.Procedural backgroundSentencing indication[9] On 9 November 2021, Judge Couch gave Mr Charlett, at his request, asentencing indication under pt 3 Criminal Procedure Act 2011. Mr Charlett did notaccept the indication.Sentencing[10] On 9 March 2022, Mr Charlett appeared before Judge Couch for sentence. TheJudge stated Mr Charlett's immediate entry of guilty pleas to all charges after rejectingthe sentence indication had the appearance of attempted "Judge-shopping". In makingthis observation, his Honour footnoted the decision of the Court of Appeal inO'Connor v R. 10[11] Judge Couch addressed various criticisms Mr Charlett's counsel had made ofhis sentencing indication and submissions made on matters not previously raised. Hedirected that his sentence indication notes form part of his sentencing notes.[12] The Judge rejected the submission of Mr Charlett's counsel that, in setting the12-month starting point for the charge of threatening to damage a dwelling house, theJudge should have taken into account that the charge had been amended to a moreserious one in the course of it being before the Court.11 He viewed the original chargeas insufficient in light of the facts. He found Mr Charlett's threat to destroy the homesof several people and to damage their vehicles, which was made to avoid prosecutionfor the assault, could hardly be more serious.[13] Whereas counsel had submitted Mr Charlett's non-offending in the eightmonths before sentence was relevant, the Judge regarded it as no more than the10 O'Connor v R [2014] NZCA 328, (2014) 27 CRNZ 302 at [32].11 Mr Charlett was originally charged with intimidation under s 21(1)(a) of the Summary OffencesAct 1981, which carries a maximum penalty of three months' imprisonment or a fine of $2,000.absence of an aggravating factor. He also explained that Mr Charlett's rehabilitativeprospects formed part of a 10 per cent discount provided on account of his youth. TheJudge, while acknowledging Mr Charlett was willing to attend restorative justice,identified that no meeting took place and neither of the victims engaged withrestorative justice services. He did not consider this justified a further reduction insentence.[14] Mr Charlett's counsel additionally argued the eight per cent uplift applied inthe sentence indication for offending on bail was excessive. The Judge observed that,putting aside the charge of exceeding the speed limit (which ordinarily would be aninfringement matter), five of Mr Charlett's offences (driving while suspended,sustained loss of traction, possession of cannabis for supply and possession of utensils)were committed while on bail. He noted the starting points taken in respect of thoseoffences comprise more than half the adjusted starting point and in thosecircumstances an uplift of eight per cent was appropriate. Further, the Judge did notaccept any discount was required for the fact Mr Charlett was subject to a curfew forpart of the time he was on bail as a curfew was called for given the nature of thecharges.[15] The Judge's sentence was structured as follows, beginning with adjustedstarting points:(a) possession of cannabis for supply — 18 months(b) possession of cannabis utensils — 2 months(c) injuring by unlawful act — 10 months(d) threatening to damage a dwelling home withintent to intimidate — 12 months(e), (f), (g) loss of traction, suspended driving,speeding 2 months44 monthsREDUCED FOR TOTALITY (8 Months) 36 monthsPlus uplift for offending on bail 8%Less personal mitigating factors- guilty plea 20%- youth 10%30%NET reduction 22% (8 months) 28 months[16] The Judge thereby arrived at an end point of a total of 28 months'imprisonment, with the end sentences imposed as follows:(a) possession of cannabis for supply(cumulative) — 17 months(b) possession of cannabis utensils — 1 month(c) injuring by unlawful act — 8 months(d) threatening to damage a dwelling home withintent to intimidate (cumulative) — 11 months(e) loss of traction — 1 month(f) suspended driving — 1 month(g) speeding — convicted and dischargedtogether with disqualification for 8 monthsPrinciples on appeal[17] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.12 As the Court of Appeal recorded in Tutakangahau v R a court "will notintervene where the sentence is within the range that can properly be justified byaccepted sentencing principles".13 It is only appropriate for this Court to intervene andsubstitute its own views if the sentence being appealed is "manifestly excessive" andnot justified by the relevant sentencing principles.14The appealAppellant's submissions[18] On behalf of Mr Charlett, Mr McKenzie submitted, as a preliminary issue, thesame Judge whose indicated sentence was rejected should not have then sentenced MrCharlett on the basis of preventing judge-shopping. When this issue was raised withthe Judge at sentencing the Judge referred to the decision in O'Connor in support ofhis involvement in the sentencing. Mr McKenzie submitted that the O'Connordecision was focused on the unrelated issue of different judges sentencing co-12 Criminal Procedure Act 2011, s 250(2).13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].14 Ripia v R [2011] NZCA 101 at [15].offenders. Mr McKenzie rejected the suggestion Mr Charlett had been judge-shopping. He argued confidence in the justice system is corroded where an appellantis sentenced by the same judge who provided the rejected sentencing indication. Insuch a case, he submitted the outcome is largely pre-determined because thesentencing judge effectively sits in judgment of his or her own sentence indication. Inhis oral submissions, Mr McKenzie recognised that, for the purpose of this sentenceappeal, this Court must determine the correctness or otherwise of the sentenceimposed, whether or not the District Court sentencing should have been attended toby a different Judge.[19] In respect of the length of sentence, Mr McKenzie submitted the total endsentence reached (28 months' imprisonment) was manifestly excessive and shouldhave been in the vicinity of 18 to 24 months' imprisonment, with conversion to homedetention. He submitted a more appropriate approach was to adopt a starting point of18 months' imprisonment for the cannabis and utensils offending, a 12 month(combined) uplift for the injuring and threatening offending, and a further two monthadjustment for the three driving offences. This would result in a total of 32 monthswhich he submitted would appropriately become 27 to 30 months on a totality basis(in contrast to the Judge's 36 months).[20] Mr McKenzie further submitted the eight per cent uplift for offending on bailwas excessive, taking into account that Mr Charlett has no history of offending on bailas an adult and there is no nexus between bail and the March offending.[21] Mr McKenzie submitted the discount of 20 per cent for guilty pleas wasappropriate but that an additional discount (beyond the 10 per cent allowed) wasrequired for Mr Charlett's rehabilitative prospects, with the Judge erring by notconsidering the pre-sentence report in relation to Mr Charlett.[22] Finally, it was submitted that the Judge erred by failing to acknowledge thetime Mr Charlett spent on restrictive bail, having limited the possibility of such adiscount to circumstances where bail restrictions are assessed as unjustified.Respondent's submissions[23] Mr Whitcombe, for the Crown, recognised that aspects of the sentence imposedcould not be justified. In particular, he recognised the combined 22 months startingpoint on the violence offending was outside the range and that totality adjustmentswould still be required. He accepted that, were the Court to determine that theappropriate end sentence is two years' imprisonment or less, then a sentence of homedetention should be considered.Was the sentence imposed manifestly excessive?[24] The two lead incidents for sentencing purposes were (as identified by theJudge) the March 2021 violence offending and the June 2021 drug offending. Acumulative approach was appropriate given the two sets of offending were different inkind and unconnected to each other.15 Where cumulative sentences are imposed theymust not result in a sentence wholly of out of proportion to the gravity of the overalloffending.16Violence offending[25] Mr Charlett's March 2021 violence-related offending comprised charges ofinjuring by unlawful act and threatening to damage a dwelling house with intent tointimidate. The first charge arose when Mr Charlett, without warning, punched anassociate forcefully in the nose, with the result that the associate's nose was broken,deformed and bled. Mr Charlett then drove away and called another associate whohad witnessed the incident. He told him "Don't go to the Police and get me chargedor I'll come to all your houses and burn them down. I'll smash out all your windowsof your house and car." This gave rise to the threatening charge.[26] Mr Whitcombe provided a number of cases that assist in determining theappropriate starting point on each charge:15 Sentencing Act 2002, s 84.16 Sentencing Act, s 85(2).(a) Ngatae v R:17 the appellant was charged with injuring by an unlawfulact. He was at a street party and approached the victim. He told thevictim he wanted to punch him. He left only to return a short time later.He stood in front of the victim and punched him on the jaw, causing thevictim to fall to the ground and to suffer a concussion. The High Courtnoted the punch was severe enough to knock the victim to the groundand was totally unprovoked, and upheld a starting point of 12 months'imprisonment on that charge.(b) Prasad v Police:18 the appellant pleaded guilty to a raft of charges,including injuring by unlawful act. He was at a restaurant in the earlyhours of the morning. The victim was also there. The two knew eachother. The appellant demanded the victim meet him outside. Theappellant began "dancing around in a fighting mode" and, withoutprovocation, punched the victim in the jaw, instantly knocking himunconscious. The victim spent a night in hospital with stretchedtendons and soreness to the jaw for a number of weeks. A starting pointof 12 months' imprisonment was considered to be at the higher end ofthe range.(c) R v Nielsen:19 the offender pleaded guilty to a charge of theft and acharge of doing a threatening act. The offender and two others went tothe victim's address. He went into the property and told the victim hewas there to collect a debt the victim owed. When the victim refusedto give the offender anything the offender said, "I will just takesomething from the house", then picked up a television and removed itfrom the address. The offender said, "If you do go to the police I willcome back and burn the house down." He then said that he would comeback to burn the house down with the victim in it. Lang J adopted astarting point of 10 months' imprisonment for the offending.17 Ngatae v R [2016] NZHC 3068.18 Prasad v R [2017] NZHC 509.19 R v Nielsen [2020] NZHC 1222.(d) Ferguson v Police:20 the appellant pleaded guilty to doing a threateningact. The victim was his ex-partner. The appellant saw a picture of thevictim with her brother and thought she was in a new relationship. Hebecame angry and jealous, proceeding to send her menacing textmessages and attempting to call her. One message said "I'll kick thedoor in and find out who that cunt is." The victim was terrified and fledto her house to hid in a bush until police arrived. On appeal, Gendall Jconsidered this threat to be at the lowest end as it did not involve aweapon or violence directed at any person. A starting point of fourmonths' imprisonment was deemed appropriate.[27] Ngatae and Prasad involved the infliction of more serious injuries than in thiscase, but with a similar lack of provocation. I am satisfied that a starting point of 10months' imprisonment was available for the charge here of injuring by unlawful act.Mr Charlett's threat was more serious than that in Ferguson but similar to that inNielsen. Standing on its own, a starting point in the range of six to eight months'imprisonment would have been justified.[28] Considering the March 2021 offending in totality, a starting point of around 16months' imprisonment was justified. The combined starting point of 22 months'imprisonment adopted for Mr Charlett's violence-related offending was outside theavailable range.Cannabis offending[29] R v Terewi remains the tariff judgment for cannabis-related offending.21 TheCourt of Appeal set out three categories of offending:22(a) Category 1: small-scale offending for personal use or non-commercialsupply. Sentences range from a fine to a short period of imprisonment.20 Ferguson v Police [2015] NZHC 644.21 R v Terewi [1999] 3 NZLR 62 (CA).22 At [4].(b) Category 2: small-scale offending for a commercial purpose. A startingpoint between two and four years' imprisonment is generallyappropriate but a lower starting point may be justified for more limitedoffending.(c) Category 3: large-scale, sophisticated and commercial offending. Astarting point of four years' imprisonment or more will be justified.[30] Mr Charlett's offending falls at the lower end of category 2. He was found inpossession of 30.27 grams of cannabis (contained in seven point bags and in one bulkamount). He also had other paraphernalia and $780 in cash. This was limitedoffending of its kind.[31] Codlin v R provides a helpful point of comparison.23[32] In Codlin, approximately 32.3 grams of cannabis and various equipment and$1,970 in cash was found at the appellant's home. The Court of Appeal confirmedthat a starting point of two years and nine months' imprisonment was within theavailable range.[33] The Judge's starting point of 20 months' imprisonment for Mr Charlett (18months for possession of cannabis for the purpose of supply and two months forpossession of a utensil) cannot be considered manifestly excessive.Totality analysis[34] The modest uplift imposed by the Judge of one month each to take account ofthe charges for driving while suspended and sustained loss of traction was appropriate(as was the discharge of the speeding charge). When combined with 16 months forthe violence offending and 20 months for the cannabis offending, a starting point of38 months (before adjustments for personal factors) is indicated.23 Codlin v R [2012] NZCA 71.[35] I accept an adjustment downwards is appropriate to reflect the overall totalityof the offending across the March, May, June and July events. I agree with MrWhitcombe that a sentence of 32 months' imprisonment would not be wholly out ofproportion to the gravity of the overall offending.Aggravating and mitigating factors personal to the appellant[36] I agree with the Judge than an uplift was appropriate to reflect the fact thatsome of the offending, including importantly the cannabis offending, occurred whileMr Charlett was on bail. Offending while on bail is a discrete head of personalaggravation, which a sentencing judge must take into account.24 It is intended toreflect the offender's disregard for Court processes25 and applies whether or not theoffending on bail is similar to the previous offending. As Mr Whitcombe observed,any uplift on this account relates not to a propensity to commit similar offences butrather to such disregard.[37] The uplift of eight per cent applied to the Judge's adjusted starting point of 36months amounted to just under three months. In Barney v Police, the High Court helda three-month (11 per cent) uplift in the context of an adjusted starting point of 27months' imprisonment was solidly within range and could well have been higher.26Here, an eight per cent uplift to the figure of 32 months equates to approximately twoand a half months. I do not consider such an uplift is excessive in the circumstances.[38] Mr McKenzie submitted the Judge erred by failing to provide a discount forthe time Mr Charlett spent on restrictive bail conditions. In Kreegher v R, the Courtof Appeal held:27[49] We consider a discount for the very lengthy period spent on bail isalso available. While the Sentencing Act 2002 only identifies time spent onelectronically-monitored bail as a mandatory mitigating factor, it is commonground that discounts may be given for time spent on bail simpliciter. Whether24 Sentencing Act, s 9(1)(c).25 Clunie v R [2013] NZCA 110, at [22].26 Barney v Police [2021] NZHC 1471 at [12], citing R v Vailea [2010] NZCA 67 at [7] and [12],where the Court of Appeal considered an uplift of three months to a starting point of three years'imprisonment (over eight per cent) could have been higher.27 Kreegher v R [2021] NZCA 22, (2021) 29 CRNZ 622.there should be a discount and the scale of it will depend on the restrictivenessof the bail conditions and the level of compliance with them. (footnotes omitted)[39] I am not persuaded that any credit was appropriate for the time Mr Charlettspent on bail. He was not subject to EM bail. On 8 June 2021, Mr Charlett wasremanded on bail subject to a 24-hour curfew but this was subsequently reduced on29 July 2021 to a curfew between 10 pm and 6 am. Although his conditions of bailwere restrictive for a short period (close to two months), he then offended while onbail. I am satisfied credit for his time on bail would be inappropriate.[40] I am satisfied the 20 per cent credit for guilty pleas was appropriate.[41] In addition, Mr McKenzie submitted a discount should have been provided forMr Charlett's rehabilitative prospects that was not sufficiently captured in the youthdiscount provided of 10 per cent. I recognise the Judge omitted to explicitly take intoaccount the pre-sentence report but importantly I am here able to take into account thematters Mr McKenzie raises in terms of the report.[42] Mr Charlett is currently 20 years old and was aged 19 at the time of theoffending. Apart from convictions for driving at a dangerous speed and driving whiledisqualified committed in April 2019, Mr Charlett's previous offending occurred whilehe was subject to the jurisdiction of the Youth Court. The pre-sentence report writerassessed Mr Charlett's offending-related factors to be violence, anti-social peers, hisattitudes and drugs. He was assessed as being at medium risk of reoffending due tothe number of his previous offences and as presenting a medium risk of harm to othersdue to his current and previous violence-related offending. The report writer notedMr Charlett appeared to lack awareness and insight into the potential harm his actionsmay cause others. However, the writer also emphasised Mr Charlett has not previouslybeen subject to a rehabilitative community-based sentence as an adult and that it isassessed he would benefit from such a sentence. The report writer recommended asentence of home detention.[43] The report writer then reported that Mr Charlett's closest support is his mother.Mr Charlett told the report writer he is currently in receipt of a benefit due to a serioushand injury that requires surgery. He told the report writer he has previous workexperience in scaffolding and he would like to return to building work when herecovers from his hand surgery.[44] It was reported that, while Mr Charlett has taken responsibility for some of hisactive charges, he appeared to minimise his role in the offending and did not appear tograsp the full gravity of the serious harm to others his assault and driving behaviourscould have caused. It was recorded that Mr Charlett also completed a brief alcoholand drug screening assessment, which indicated he has a moderately harmful patternof cannabis use.[45] The Judge, in providing a 10 per cent discount to reflect Mr Charlett's youthduring his sentence indication, noted he was only 19 years old at the time andseemingly immature for his age. At sentencing, he then clarified this discountincorporated any potential rehabilitative prospects Mr Charlett had.[46] Mr Whitcombe here submitted the 10 per cent discount was appropriate on thebasis Mr Charlett had numerous convictions as a youth and that his rehabilitativeprospects cannot be viewed as strong as those of someone with no or few previousconvictions.[47] Although proceedings in the Youth Court do not (with limited exceptions)result in the "conviction" of an offender, they can have some relevance to sentencingand will likely preclude any credit for previous good character.28 In this case, MrCharlett's Youth Court appearances included for aggravated robbery and commonassault offending, which lend support to the concerns identified by the report writer.The report writer also provided a balanced assessment that Mr Charlett would benefitfrom a rehabilitative community-based sentence. It does not appear Mr Charlett hashad the benefit of any form of treatment, counselling or other assistance to address thecauses of his offending as an adult. In circumstances where he has also indicated awillingness to regain employment and has pro-social family support, I consider ahigher discount of 15 per cent would appropriately have accounted for Mr Charlett'syouth and rehabilitative prospects.28 Waikato-Tuhega v R [2021] NZCA 503 at [32]–[33].Conclusion[48] When these uplifts and discounts are applied to the adjusted starting point of32 months (applying an uplift of eight per cent, less discounts of 35 per cent, resultingin a net reduction of 27 per cent), an end sentence of 23 months' imprisonment isindicated. Standing back I am satisfied that the sentence imposed — 28 months —was manifestly excessive, and that 23 months' imprisonment would have beenappropriate.Home detention[49] Having reached an end sentence of 23 months' imprisonment, the Court isrequired to consider whether the short-term sentence of imprisonment should becommuted to one of home detention.29 The court must be satisfied that the purposesfor which the sentence is being imposed cannot be achieved by any less restrictivesentence.30 Imprisonment is therefore "a measure of last resort".31 Section 16(1) ofthe Sentencing Act 2002 requires regard to be had to the desirability of keepingoffenders in the community as far as that is practicable and consonant with the safetyof the community. As the Court of Appeal observed in Fairbrother v R, when decidingwhether to commute a sentence of imprisonment to one of home detention:32 the judge must make a considered and principled choice between the twoforms of sentence, recognising that both serve the principles of denunciationand deterrence, and identifying which of them better qualifies as the leastrestrictive sentence to impose taking into account all the purposes ofsentencing.[50] I note that the pre-sentence report confirmed Mr Charlett's home address andits occupants (his mother and 14-year-old brother) were suitable for an electronicallymonitored sentence. The report writer advised that his mother continues to supporthim, as do Mr Charlett's paternal grandparents in Nelson and his 21-year-old brotherin Auckland.29 Sentencing Act, s 15A(1)(b).30 Section 15A(1)(a).31 R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254 at [18].32 Fairbrother v R [2013] NZCA 340 at [30].[51] Notwithstanding the violence and threats involved in Mr Charlett's offending,I consider a sentence of home detention would sufficiently serve the principles ofdeterrence and denunciation at the same time as better assisting in his rehabilitationand reintegration into the community. Mr Charlett is still a young man who has notyet been offered the opportunity of a rehabilitation-focused, community-basedsentence. While Mr Charlett does not appear to grasp the full gravity of his offending,that lack of insight appears to relate at least significantly to his immaturity. It is a facthe has not been exposed to treatments and programmes capable of addressing theunderlying causes of his offending. While the pre-sentence report writerunderstandably assessed his risk of harm to others as medium, I have regard to the factthat all of his previous offences occurred while Mr Charlett was aged between 14 and17. The sentence of imprisonment would significantly undermine Mr Charlett'spathway towards rehabilitation and deny him an important opportunity tomeaningfully address the causes of his offending with the support of his family.[52] On this basis, it is appropriate that a sentence of some 11 months' homedetention be substituted for the sentence of imprisonment. Having regard to MrCharlett's having already served some two months in prison, the period of homedetention I impose is nine months. The standard conditions, attaching to the homedetention sentence together with the general conditions imposed in the ResultsJudgment, will serve to promote the utility of the home detention sentence as arehabilitative tool.Who should be the sentencing Judge?Mr Charlett's complaint[53] Once it was accepted that this Court on appeal would determine the appropriatesentence, it was self-evident that the Court did not need to resolve Mr Charlett'scomplaint that Judge Couch was the Judge who sentenced Mr Charlett after MrCharlett had not accepted the sentence indication provided by Judge Couch but hadnevertheless pleaded guilty to the charges.[54] The complaint is essentially one that the Judge ought to have recused himself,thereby leaving the sentencing to be dealt with by any other Judge.[55] In Mr Charlett's case, he was initially remanded on bail to appear for sentencebefore the next available Judge on 9 February 2022 (Judge Phillips then beingscheduled). On 27 January 2022, the Deputy Registrar sent an email to Mr McKenziein which she noted those arrangements but then recorded:I have spoken to Judge Couch who has directed that this matter be calledbefore him as he gave the initial indication. Therefore the sentencing on the9 February is vacated and Mr Charlett is remanded on Bail to continue to the9 March 2022 at 2.15pm before Judge Couch [on] his Judge Directed Day.[56] In Mr Charlett's grounds of appeal, Mr McKenzie recorded that the approachtaken — rescheduling the sentencing before the Judge who had given the sentenceindication — corroded confidence in the system as:(a) the sentencing outcome is largely pre-determined;(b) the sentencing judge sits essentially in judgement of his or her ownsentence indication;(c) that brings the sentencing judge into the arena, in essence justifying thesentence indication; and(d) this process undermines the sentence indication process by effectivelyrequiring the indicated sentence to be imposed (subject only toalteration justified by fresh information).[57] Mr McKenzie's submissions initially came close to suggesting that the Judgewho provides a sentence indication should never become the sentencing judge in suchsituations. That said, he retreated somewhat to suggest that an appropriate principlewould be that the sentencing judge be identified on the standard scheduling or rotationbasis and not by a pre-set policy directing the sentencing back to the sentenceindication Judge (other than where that Judge has become unavailable).[58] It appears clear from the Deputy Registrar's email in this case that a specificdirection was made, cutting across the previous scheduling, that the sentencing hearingwas to be before Judge Couch. It is not clear whether that was pursuant to a policywhether adopted at Christchurch or more broadly in the District Court.[59] When Mr Charlett subsequently appeared for sentence, the Judge expresslyreferred to the Court of Appeal's decision in O'Connor in support of his observationthat Mr Charlett's rejection of the sentence indication followed by immediate guiltypleas "had the appearance of an attempt at judge shopping".33Discussion[60] Given that the determination of this appeal has turned on standard sentencingprinciples and I received only the briefest of submissions concerning the recusal issueraised by Mr McKenzie, any considered response to the submission must be foranother day when and if the issue is directly in play and comprehensive submissionsare made.[61] I therefore limit myself to the following observations.[62] The situation that had occurred in the District Court in O'Connor wasexplained and discussed in the Court of Appeal's judgment in the following passage:[31] For reasons that are not known to us, on the same day that JudgeMarshall sentenced Ms Fraser-Jones consistent with his sentencing indication,the present appellants had a sentence indication hearing before a differentJudge, Judge Burnett. Her Honour indicated she was not willing to take thesame starting point as had been taken for Ms Fraser-Jones. Our earlierdiscussion indicates that we agree with Judge Burnett's assessment.[32] The appellants did not accept Judge Burnett's sentencing indicationbut decided to plead guilty anyway. It was then suggested by all counsel thatas the sentence indication had not been accepted, there was no need for JudgeBurnett to sentence the appellants. Instead, applying normal principles, thesame Judge that had sentenced their co-defendant should sentence them. TheCourt did not agree, considering this had the flavour of Judge-shopping.[33] We consider that the situation should not have arisen. Two Judges inthe same court should not have been dealing with co-defendants on the sameday. However, once the situation had happened, we agree with what occurred.Judge Burnett should, as she did, have completed the sentencing and if thedefendants she sentenced were unhappy with the outcome, they can appeal, asthey have.33 Police v Charlett, above n 1, at [3], citing O'Connor v R, above n 10, at [32].[63] In other words, the Court of Appeal found that hearings in relation to thesentencing of co-defendants should not have been scheduled before different judgeson the same day. But, once that happened, the Court of Appeal observed, it wasappropriate that Judge Burnett "completed the sentencing".[64] The Court of Appeal decision in O'Connor defeats Mr McKenzie's originalsubmission that a sentence indication judge should never become the sentencing judgein the circumstances of a case such as Mr Charlett's. What the judgment in O'Connordoes not resolve is whether, at the point of scheduling, the sentencing hearing shouldhave been set down before Judge Burnett in preference to any other Judge. The Courtof Appeal, in O'Connor, was commenting on a situation where the defendant wasalready before Judge Burnett for sentencing on the day.[65] I do not read O'Connor as either express or implied support for any practice orpolicy that requires the sentencing of a defendant in Mr Charlett's (or Mr O'Connor's)position to be scheduled (if possible) before the same judge who provided the(rejected) sentence indication.Osborne JSolicitors:Crown Solicitor, ChristchurchCopy to: A McKenzie, Barrister, Christchurch