HORN v POLICE [2023] NZHC 2530

HORN v POLICE [2023] NZHC 2530 [8 September 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2023-409-128[2023] NZHC 2530BETWEEN JOSHUA THOMAS HORNAppellantAND NEW ZEALAND POLICERespondentHearing: 7 September 2023Appearances: J D Lucas for the AppellantC M Hallaway for the RespondentJudgment: 8 September 2023JUDGMENT OF HARLAND J[1] Joshua Horn appeals against the sentence imposed by Judge A Couch on 9 June2023.1 The grounds for his appeal are discrete and relate solely to deductions hecontends ought to have been allowed as mitigating matters which, if they had, wouldhave resulted in him being eligible for a term of home detention rather thanimprisonment. Ultimately, he asks the Court to impose a sentence of home detentionif it agrees.[2] The Crown does not oppose the appeal but counsel disagree as to the extent ofthe deductions available. On either counsel's assessment, if I agree with them, the endsentence is one to which home detention could apply. The Crown does not oppose anend sentence of home detention, given that this was what was recommended in thepre-sentence report.1 Police v Horn [2023] NZDC 11833.[3] The key question on appeal is whether I agree with counsel, which would resultin the appeal being allowed.[4] I have decided to allow the appeal and impose a sentence of home detentionon Mr Horn rather than a sentence of imprisonment. This judgment sets out myreasons for reaching that decision.District Court judgment[5] The appellant was charged with three charges of burglary,2 five charges oftheft,3 two charges of receiving,4 two charges of unlawfully taking a motor vehicle,5two charges of driving while suspended,6 two charges of dishonestly using adocument,7 unlawfully possessing knives8 and a small quantity of methamphetamine.9[6] The offending occurred between 27 July and 21 November 2022 when theappellant was arrested by the Police. It involved a spree of dishonesty offending overthe course of several months, including the burglaries of residential properties, theunlawful taking of motor vehicles, theft of small property, being found in possessionof a knife and methamphetamine, and driving while suspended. The Judge in theDistrict Court addressed the facts in detail in his sentencing remarks at paras [2] to[10]. It is not necessary to address them further here given that no issue is taken withthe starting point adopted or uplifts for the various tranches of offending, leading toan adjusted starting point of four years or 48 months' imprisonment, bearing in mindtotality.[7] Neither is there a dispute that the Judge was correct to apply an uplift of fiveper cent to reflect that one of the burglaries, the two charges of unlawfully taking motorvehicles, one of the thefts and the possession of knives and methamphetamine wereall committed while on bail.2 Crimes Act 1961, s 231(1)(a); maximum penalty 10 years' imprisonment.3 Sections 219 and 223(d); maximum penalty three years' imprisonment.4 Sections 246 and 247(c); maximum penalty three months' imprisonment.5 Section 226(1); maximum penalty seven years' imprisonment.6 Land Transport Act 1998, s 32(1)(c) and 32(3); maximum penalty three months' imprisonment.7 Crimes Act, s 228(1)(a); maximum penalty seven years' imprisonment.8 Summary Offences Act 1981, s 13A; maximum penalty three months' imprisonment.9 Misuse of Drugs Act 1975, s 7(1)(a) and 7(2); maximum penalty six months' imprisonment.[8] The Judge discounted the sentence by 18 per cent for guilty pleas and 10 percent for remorse. No issue was taken with these deductions. However, the Judgeallowed a further five per cent discount for the fact that the appellant had begunaddressing his addiction issues. He allowed no deduction to reflect the fact that, at theage of 34, the appellant appeared before the Court for the first time.[9] The reduction the Judge gave to reflect the appellant's time spent onelectronically monitored (EM) bail of three and a half months was not challenged onappeal but it was acknowledged by Mr Lucas, on behalf of the appellant, that thisdeduction was generous as it effectively matched the time actually spent on EM bail.[10] In the end, the sentence the Judge imposed was one of 31 months'imprisonment. Because of this, the appellant was not eligible to be considered forhome detention, which had been the recommendation in the Provision of Advice toCourts (PAC) report.Principles on appeal[11] 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.10 As the Court of Appeal mentioned in Tutakangahau v R, quoting thelower court's decision, a "court will not intervene where the sentence is within therange that can properly be justified by accepted sentencing principles".11 It is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.1210 Criminal Procedure Act 2011, ss 250(2) and 250(3).11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].12 Ripia v R [2011] NZCA 101 at [15].DiscussionDeduction for addiction[12] I first deal with the deduction allowed to reflect the appellant's drug addiction.The PAC report addressed this and provided some context to it, as did the restorativejustice report, the letter from the Ashburton Community Alcohol and Drug Service,and the appellant's letter to the Judge, all of which were summarised in Mr Lucas'written submissions which he provided on sentencing.[13] In summary, the point is that drug use was an issue for the appellant, and it wassubmitted largely the reason for his offending. It appears that the appellant developedan addiction to methamphetamine following a difficult phase in his life during whichhis business failed, his family and friends distanced themselves from him, and hebecame homeless.[14] After being arrested, the appellant was granted EM bail and began activelyengaging with the Community Alcohol and Drug Service in Ashburton. He self-referred to that agency and began attending weekly counselling sessions, expressingthrough counsel his plan to continue seeking support in the community.[15] Although he accepted that methamphetamine played a significant role in theappellant's offending, the Judge did not consider it to be a mitigating factor. Hereferred to s 9(3) of the Sentencing Act which provides that, to the extent the offendingis related to the effects of alcohol or drugs which have voluntarily been taken, thatcannot be regarded as a mitigating factor.[16] The Judge concluded that the appellant was taking methamphetamine and theoffending was the result of its effect on him, not that he was committing crimes tosupport his habit.13 The Judge did however allow a five per cent discount to recognisethe steps the appellant had taken to deal with his addiction to methamphetamine.[17] The appellant submits and the Crown accepts that, on the evidence before theJudge, there was sufficient background for him to infer that there was a causative link13 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.between the appellant's addiction and his offending. I agree. The Judge erred in thisrespect.[18] The strength of the causative connection influences the discount applied insentencing.14 The difference between counsel is the percentage deduction eachsubmits should apply, with Mr Lucas for the appellant submitting it ought to be 30 percent, and Ms Hallaway for the Crown submitting that a discount in the vicinity of 20per cent was appropriate.[19] As noted in Berkland v R, it is sufficient for background factors to have acausative contribution as opposed to being the operative cause.15 I agree with MrLucas that it is of "real relevance" that Mr Horn used drugs in his youth to attempt tocombat traumatic home events. I note Mr Berkland received a 10% discount for hisbackground which involved sexual abuse amongst multiple other criminogenic factorsas well as ten per cent for his efforts at rehabilitation, leading to a total discount of 20per cent.16[20] I have also reviewed Hughes v R as submitted by the Crown. In hersubmissions, Ms Hallaway submitted a 20 per cent deduction was credited to MrHughes for "childhood trauma and resulting addiction combined with positiverehabilitation prospects". In fact, ten per cent credit was granted for Mr Hughes'genuine remorse and payment of reparation and ten per cent credit was granted forchildhood trauma, addiction and positive rehabilitative prospects.17[21] While the appellant experienced some deprivation early on in his life and hehad difficulties at school, in my view, he nonetheless managed to overcome thesematters to an extent, as is evidenced by the pro-social life he was leading before thisoffending. In my view, there is nothing present in the appellant's background to justifya discount any greater than that granted to the appellant in Berkland (ten per cent forbackground and ten per cent for rehabilitative efforts).18 In my view, a 20 per cent14 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [108]−[109].15 At [109].16 At [151]−[162].17 Hughes v R [2022] NZHC 2835 at [37]18 Berkland, above n 14, at [162].discount for background matters, addiction and rehabilitative efforts and prospects, isappropriate. To be clear, this includes and therefore replaces the five per cent adoptedby the Judge for rehabilitative prospects.Previous good character / lack of previous convictions[22] An offender's good character will usually amount to a mitigating factor atsentencing. The Court of Appeal has held that a clean record is, in itself, evidence ofprevious good character and worthy of some recognition.19 However, in the absenceof evidence of a positive contribution to the community, the credit will be limited.20A failure to take into account evidence of previous good character at sentencing, or toregard the lack of previous convictions as the absence of an aggravating factor ratherthan a specific mitigating factor, will amount to an error in principle.21[23] The appellant is 34 years of age and has no previous convictions. He hasoperated a business and had a family, all of which indicates his life prior to thisoffending was pro-social.[24] Ms Hallaway, for the Crown, referred to Quinlan v R, Chai v R, Singh v R andFaiyum v R.22[25] In Chai v R, the defendant undertook numerous courses to improve themselvesand gain better insight into their offending, as well as working "with some distinction"within the prison kitchen system. This was viewed as evidence of good character and"ability to contribute in a meaningful way to society beyond criminality".23 A 10 percent deduction was given in this case. The Crown cited Singh and Faiyum as two otherCourt of Appeal cases where appellants had no record of prior offending in seriousdrug offending conviction cases, and received 10 per cent good character deductions.24In Quinlan, a 15 per cent discount was adopted on appeal for good character and19 R v Hockley [2009] NZCA 74 at [30]; Manawaiti v R [2013] NZCA 88; Quinlan v R [2013] NZCA634.20 Manawaiti v R, above n 19, at [19]; Rana v R [2014] NZCA 468 at [17]; Britow v R [2017] NZCA339 at [11].21 Manawaiti v R, above n 19; Rana v R, above n 20.22 Quinlan v R, above n 19; Chai v R [2020] NZCA 202; Singh v R [2020] NZCA 211; Faiyum v R[2020] NZCA 523.23 Chai v R, above n 22, at [30].24 Singh v R, above n 22; Faiyum v R, above n 22.remorse, which was not interfered with on appeal. Overall, the Crown submitted thata 10 per cent discount for previous convictions is appropriate. Mr Lucas submitted 15per cent was justified.[26] A deduction to reflect the appellant's previous good is required. The Judgeerred by not adopting a deduction for this. In my view, five per cent is appropriate andmore in line with the authorities than the 15 per cent submitted by Mr Lucas.Conclusion[27] I have retained Judge Couch's four year starting point and his five per centuplift as well as his 18 per cent guilty plea discount and 10 per cent remorse discount.I have replaced his five per cent rehabilitation discount with a 20 per cent discount foraddiction and rehabilitation prospects and also apply a five per cent good character percent. That creates a total discount of 48 per cent. That creates an end sentence of 25months' imprisonment, rounded up.Home detention[28] The end term of imprisonment as a result of the further deductions mean thatthis sentence comes within the realms of consideration for home detention. TheCrown did not oppose that as the appropriate sentencing outcome. I agree. In termsof usual principles, the end term of home detention would comprise half of the endsentence. Consideration needs to be given however to the time the appellant has spentremanded in custody. Mr Lucas advised that Mr Horn was remanded in custody from22 November 2022 to 7 March 2023 and from the date of sentence on 9 June 2023until today's date. In round figures, Mr Lucas submitted that this amounted to somesix months. The Judge allowed a deduction for EM bail which encompasses the threeand a half month period. This deduction was generous. Nonetheless, I am satisfiedthat a deduction is required to reflect time served.[29] Judge Couch's EM bail credit was generous. I have chosen to partially retainthat credit at three months. That takes the sentence down to 22 months' imprisonment.I then recognise the roughly three months the appellant spent in custody by granting aone for one credit off the halved home detention sentence of 11 months' homedetention to lead to an overall end sentence of eight months' home detention.[30] I impose a term of home detention of eight months, with conditions as theyappear in the pre-sentence report dated 29 May 2023 to apply.Result[31] The appeal is granted. The appellant is sentenced to eight months' homedetention.____________________Harland JSolicitors:J D Lucas, Barrister, ChristchurchRaymond Donnelly & Co., Christchurch.