LOUDEN v POLICE [2022] NZHC 2817

LOUDEN v POLICE [2022] NZHC 2817 [31 October 2022]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2022-419-64[2022] NZHC 2817BETWEEN LISA LOUDENAppellantAND NEW ZEALAND POLICERespondentHearing: 25 October 2022Appearances: G Edge for the AppellantB Harris for the RespondentJudgment: 31 October 2022JUDGMENT OF GAULT JThis judgment was delivered by me on 31 October 2022 at 2:00 pm.Registrar/Deputy RegistrarSolicitors:Ms G Edge, Bean Law Ltd, HamiltonMr B Harris, Hamilton Legal, Office of the Crown Solicitor, Hamilton[1] Ms Louden appeals against a sentence of 10 months' imprisonment imposedby Judge T R Ingram at the Thames District Court on 22 August 2022,1 followingconvictions for the following:(a) breach of home detention;2(b) possessing an offensive weapon (x2);3(c) procuring or possessing a cannabis plant;4(d) possessing pipe or utensil for cannabis;5(e) procuring or possessing methamphetamine and amphetamine;6 and(f) possessing/using utensils methamphetamine or amphetamine.7Facts[2] On 17 June 2022 at about 8:30am, while serving a sentence of home detentionwith conditions not to possess or consume any drugs not prescribed, Ms Louden calledthe police to report that her mother was being kidnapped by an unknown assailantarmed with a firearm. The police responded and Ms Louden came outside onto thefootpath. She made allegations of kidnapping and communicated her suspicions ofbeing 'watched by cameras'. The police detained Ms Louden for mental healthassessment.[3] The police searched her bag and discovered a zip lock bag with a significantamount of cannabis. Consequently, the police placed Ms Louden under arrest andcompleted a search of her belongings and uncovered:1 Police v Louden [2022] NZDC 17855; and Criminal Procedure Act 2011, s 244.2 Sentencing Act 2002, s 80S.3 Crimes Act 1961, s 202A(4)(a).4 Misuse of Drugs Act 1975, s 7(1)(a) and (2).5 Section 13(1)(a) and 13(3).6 Section 7(1)(a) and (2).7 Section 13(1)(a) and 13(3).(a) approximately eight grams of cannabis;(b) approximately 1.8 grams of methamphetamine;(c) a glass meth pipe;(d) a cannabis pipe;(e) knuckle dusters; and(f) a small knife.[4] When Ms Louden was asked about the items, she told police that they allbelonged to her.District Court decision[5] Judge Ingram referred to the charges and Ms Louden's history of drugproblems. The Judge said that Ms Louden had three months remaining on her sentenceof home detention and therefore a sentence of six months' imprisonment would bejustified to deal with the portion of the sentence she had not served. The Judge saidthe drug and weapon offences on a standalone basis would attract a sentence of ninemonths' imprisonment. An uplift for the time unserved would take the sentence to15 months' imprisonment.[6] The Judge allowed a 25 per cent discount, said to be three months, forMs Louden's guilty plea and two months for her addiction. This led to an end sentenceof 10 months' imprisonment.8 Leave to apply for substitution of sentence wasdeclined.8 In respect of the individual offences, Ms Louden was sentenced to 10 months' imprisonment forthe breach of home detention and possession of offensive weapons; one month for possession ofmethamphetamine and cannabis; one month for possession of utensils methamphetamine; anddestruction orders were made for the weapons, drugs and utensils. All sentences were to be servedconcurrently.Approach on appeal[7] In order to succeed on a first appeal against sentence, the appellant must satisfythe appeal court that there has been an error in the imposition of the sentence and thata different sentence should be imposed.9 The appeal court will intervene if thesentence is manifestly excessive or wrong in principle.10 It will not ordinarilyintervene where the sentence is within the range that can be properly justified byaccepted sentencing principles. The appeal court's focus is on the final sentenceimposed rather than the process by which the sentence was reached.Grounds of appeal[8] Ms Edge, for Ms Louden, submitted that the Judge erred by not allowing adiscount for remorse. She submitted the pre-sentence report and the letter written byMs Louden evidence her remorse about her offending. She submitted a five per centdiscount for remorse should be allowed.[9] Secondly, Ms Edge submitted the Judge erred by not allowing a distinctdiscount for mental health and other personal factors that led to the offending. Shesubmitted that Ms Louden was suffering from paranoia induced by her drug addictionand mouldy tobacco. A five per cent discount for mental health and other personalfactors should be allowed.[10] Finally, Mr Edge submitted that the Judge erred by declining her applicationfor home detention. She submitted that Ms Louden has demonstrated through thepre-sentence report a capacity to comply with a sentence of home detention.DiscussionDiscounts[11] In relation to the further discounts sought, Ms Edge acknowledged they aresmall and may only amount to small adjustments. She essentially seeks an additional10 per cent, that is only one and a half to two months.9 Criminal Procedure Act, ss 244, 250(2) and (3).10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.[12] I accept that the pre-sentence report indicates that Ms Louden expressedremorse. I also have read the letter she wrote to the Judge and I note her remorse ather relapse. I also accept that she tried to manage her concerns and communicate withthe authorities while on home detention. As Mr Harris for the respondentacknowledged, Ms Louden may have been entitled to a modest discount. But adiscrete discount for remorse requires tangible evidence.11[13] I also accept, albeit in the absence of expert evidence, that Ms Louden appearsto have had mental health as well as addiction issues. They may be interrelated.The two month discount she received for addiction was 13.3 per cent. I accept a higherdiscount could have been given for the combination of addiction and mental health,but in the absence of independent evidence I do not consider the discount given wasinadequate.[14] I also note that the guilty plea discount of three months was only 20 per cent,not 25 per cent as proposed. Even so, a total discount of 45 per cent would only havereduced the sentence by two months. In circumstances where the starting point couldhave been higher than 15 months' imprisonment, I do not consider that the endsentence of 10 months' imprisonment was manifestly excessive. It was well withinthe range available to the Judge.Home detention[15] The remaining issue is whether the Judge was wrong to decline leave to applyfor substitution of a sentence of home detention.12 Ms Edge acknowledged thepractical issue that Ms Louden's end sentence date is 15 November 2022, leaving verylittle time to find an address and have it approved. I deal with this ground nevertheless.[16] The Judge did not give reasons for declining leave to apply for substitution ofa sentence of home detention. However, as Mr Harris submitted, the Judge wasentitled to decline leave. Although the pre-sentence report assessed Ms Louden'sability to comply as high, she breached her home detention sentence for reasons11 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [24].12 Sentencing Act 2002, s 80I.apparently relating to her drug issues. Given that sentence breach and her statementsto the pre-sentence report writer, I agree that another sentence of home detentionwould not have been appropriate even if a suitable residence had been available.Ms Louden stated to the pre-sentence report writer that leaving Thames was in her bestinterests, and that being sentenced to an electronically monitored sentence in Thameswould be counterproductive. She also stated that she did not wish to return to arehabilitation service such as the Grace Foundation. Indeed, it appears thatMs Louden herself declined to pursue electronic monitoring as a sentencingalternative to imprisonment.Result[17] The appeal is dismissed.________________________________Gault J