Adams v Police
[2025] NZHC 600
•21 March 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2025-418-2
[2025] NZHC 600
BETWEEN NORTON LINDSAY ADAMS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 19 March 2025 Appearances:
J M Lucas for Appellant
S A Teki-Clark for Respondent
Judgment:
21 March 2025
JUDGMENT OF McQUEEN J
[1] Norton Adams was sentenced to nine months imprisonment by Judge O’Driscoll in the Greymouth District Court1 on 18 charges, namely:
(a)10 charges of theft (under $500);2
(b)Three charges of possession of cannabis;3
(c)One charge of driving under the influence of cannabis;4
(d)One charge of dangerous driving;5
1 Police v Adams [2025] NZDC 854.
2 Crimes Act, ss 219 and 223(d); maximum penalty three months’ imprisonment.
3 Misuse of Drugs Act 1975, s 7(1)(a) and (2); maximum penalty three months imprisonment or
$500 fine
4 Land Transport Act, ss 57A(1)(a) and 57D(1); maximum penalty three months’ imprisonment or
$4,500 fine.
5 Land Transport Act 1998, s 35(1)(b); maximum penalty three months’ imprisonment or $4,500 fine.
ADAMS v NZ POLICE [2025] NZHC 600 [21 March 2025]
(e)One charge of threatening behaviour;6 and
(f)Two charges of failing to answer bail.7
[2] Mr Adams appeals his sentence on the basis that the Judge erred in failing to consider sentencing options other than imprisonment, including a community-based sentence or leave to apply for home detention.
[3] The Police oppose the appeal on the grounds the Judge provided sufficient and compelling reasons why a less restrictive sentence was not appropriate.
[4]For the reasons below, the appeal is dismissed.
The offending
[5] The 18 charges arise from the period of 21 September 2024 to 28 December 2024. There are seven instances of shoplifting pertaining to stealing meat and other items from supermarkets and energy drinks from petrol stations, totalling $484.98 of stolen products. The remaining theft relates to stealing petrol from petrol stations totalling $181 and, on one occasion, the licence plate off another vehicle (valued at $36). These events resulted in the theft charges.
[6] On 21 September 2024, Mr Adams was in Hokitika visiting his then girlfriend. After having stolen petrol and a licence plate as described above, he was stopped by Police, arrested, and a search of his vehicle yielded 25 grams of cannabis leaf and utensils. This resulted in one of the charges of possession of cannabis.
[7] On the afternoon of 7 October 2024, Mr Adams was driving in Greymouth. When spoken to by Police, Mr Adams displayed signs of being impaired and admitted to consuming cannabis. A compulsory impairment test found Mr Adams’ blood contained 5.8 nanograms of THC per litre of blood.8 This resulted in Mr Adams being charged with driving under the influence.
6 Summary Offences Act, s 21(1)(a); maximum penalty three months’ imprisonment or $2,000 fine.
7 Bail Act 2000 s 38(a); maximum imprisonment one year’s imprisonment or $2,000 fine; and Bail Act s 24; maximum penalty three months’ imprisonment or $1,000 fine.
8 The high-risk level is three nanograms per litre of blood.
[8] On the afternoon of 13 October 2024, Mr Adams was visiting a friend in a Christchurch suburb. The victim, known to Mr Adams from a previous friendship, asked Mr Adams’ friend who owned the car parked in the driveway. Mr Adams came out of the house and started yelling and swearing at the victim. The victim feared for his safety so drove away to his nearby address. Mr Adams followed the victim and started yelling at the victim and his partner telling them he would “get the Black Power on them” before Mr Adams left the area. Mr Adams was later arrested, and after he was searched Police found six grams of cannabis plant material concealed in his underwear. This resulted in the threatening to injure charge and another charge of possession of cannabis.
[9] On 2 November 2024, after Mr Adams stole meat from a New World supermarket, Police executed a search warrant on his address. During this search Police found 32.8 grams of dry cannabis plant material, resulting in the third charge of possession of cannabis.
[10] On the evening of 26 November 2024, Mr Adams was driving at speed in a Christchurch suburb. Mr Adams veered onto the wrong side of the road, overcorrected, and crashed into a fence. This resulted in the dangerous driving charge.
[11] In respect of his offending on 2 November 2024, Mr Adams was issued with summons to appear before the Greymouth District Court on 27 November 2024. He failed to appear, resulting in the first charge of failing to answer bail. His second charge of failing to answer bail was due to his failure to appear on 30 December 2024 on further shoplifting charges.
The decision under appeal
[12] In his decision, the District Court Judge considered the aggravating factors of the offending to be the number of charges, the time period over which the offending took place, and that two of the charges arose while Mr Adams was on bail. The Judge also identified Mr Adams’ 69 previous convictions (as identified in the last opposition to bail) as a personal aggravating factor, noting 28 of these were committed while on bail. The Judge noted that the pre-sentence report considered that Mr Adams was not yet willing and able to commence comprehensive drug rehabilitation. The report said
that Mr Adams is aware that until he addresses his drug issues his efforts to obtain greater access to his son are likely to be unsuccessful.
[13] The Judge emphasised the purposes of sentencing of holding the offender to account, deterrence (with an acknowledgement that imprisonment had not been an effective deterrent in the past) and protection of the community. His Honour took issue with the argument that Mr Adams should be sentenced to intensive supervision and community work, particularly given Mr Adams had breached release conditions including as recently as November 2023, had a conviction for escaping from custody in 2023, and convictions for failing to answer bail and breaching supervision in 2022. The Judge noted Mr Adams had previously been sentenced to a rehabilitative sentence of supervision and release conditions and had not taken that opportunity for rehabilitation.
[14] The Judge imposed a cumulative sentence on Mr Adams, imposing sentences of three months’ imprisonment for the theft charges, two months’ imprisonment for dangerous driving, two months’ imprisonment for the cannabis offending, one month’s imprisonment for threatening to injure, and an additional month for breaching bail. The Judge also imposed an uplift of one month for offending while on bail, and two months for previous convictions. This resulted in a starting point of 12 months’ imprisonment. The Judge stated he did not think that starting point breached the totality principle, taking into account all of the charges before him.
[15] Turning to discounts, the Judge applied a three-month deduction for Mr Adams’ guilty plea, resulting in an end sentence of nine months’ imprisonment.
[16] The Judge determined it was inappropriate to convert the sentence of imprisonment to home detention, given there was no suitable address, and did not allow Mr Adams leave to apply for home detention, particularly taking account of his previous sentences of imprisonment. The Judge imposed further standard and special conditions of release—as set out in the pre-sentence report in relation to Mr Adams’ addiction issues—to apply for six months after the sentence expiry date.
Approach on appeal
[17] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.9 A court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.10 It will only do so if the sentence being appealed is “manifestly excessive,” with the route by which the judge reached that outcome relevant to the analysis, but seldom pivotal.11
The parties’ submissions
Submissions for Mr Adams
[18] Mr Lucas, on behalf of Mr Adams, submits that the Judge erred in not considering the alternative sentencing options to imprisonment, namely a community-based sentence such as intensive supervision or leave to apply for home detention. He says that a sentence of imprisonment should be a last resort in accordance with the purposes and principles of the Sentencing Act, although he acknowledges the desirability to keep offenders out of the community for public safety.
[19] Mr Lucas relies on Howe v Police to say that where a sentence falls within the range of home detention, that sentence should be imposed unless there are grounds not to do so.12 He says Mr Adams now has a suitable address at which to serve a sentence of home detention.
[20] Mr Lucas also submits the Judge should have considered the impact of parental incarceration on Mr Adams’ one-year-old son. He refers to Philip v R13 and C v Police14 as supporting the notion that a discrete discount can be given in recognition
9 Criminal Procedure Act 2011, ss 250(2) and 250(3).
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
11 Ripia v R [2011] NZCA 101 at [15]; and Kumar v R [2015] NZCA 460 at [81].
12 Howe v Police [2021] NZCA 619 at [55].
13 Philip v R [2021] 1 NZLR 571.
14 C (CA153/2023) v Police [2024] NZCA 136.
of the impact of imprisonment on an offender’s young children. Mr Lucas says another way of addressing this would be to impose a sentence other than imprisonment so as to allow Mr Adams to be with his son (of whom he says Mr Adams previously had custody). Mr Lucas also says the Judge made no adjustment for totality.
Submissions for Police
[21] Mr Teki-Clerk, on behalf of the Police, submits that no errors were made by the sentencing Judge. He says nine months was an appropriate sentence given the volume and range of offending, even if most of the offences bear a maximum penalty of three months’ imprisonment. Mr Teki-Clerk submits that the Judge explicitly took account of totality and there is no error in this regard. He notes the Judge gave justified reasons for imposing a sentence of imprisonment, given there was no suitable address available for an electronically monitored sentence, no indication of pro-social support, that Mr Adams has a significant history of offending, including while on bail, and was unable to engage appropriately with rehabilitative treatment.
[22] Mr Teki-Clerk acknowledges the Judge should have considered the impact of parental incarceration. However, he says that any such consideration would not have materially affected the outcome, given that the child lives with relatives and Mr Adams is permitted only four hours of supervised contact per week. Mr Teki-Clerk submits that a rehabilitative option may have been appropriate should a suitable address for an electronically monitored sentence be available, but given there was no such address, imprisonment was the least restrictive outcome in this instance.
Analysis
Was the end sentence within range?
[23] Section 84 of the Sentencing Act provides that cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind. Mr Adams committed a variety of offences, for which the Judge was entitled to impose cumulative rather than concurrent sentences.
[24] The Judge expressly turned his mind to whether a totality adjustment should be made, and considered there was no breach of the totality principle. In considering totality, the Judge must assess the offender’s overall culpability and determine what effective sentence is appropriate for the totality of their conduct.15 A totality adjustment is not always required, the sentencing Judge merely needs to stand back and assess whether the sentence they have arrived at is not wholly out of proportion to the gravity of the overall offending, and make an adjustment only if it is out of proportion.16 Given the number of offences involved for Mr Adams, I do not consider that a totality adjustment was necessary to the overall sentence.
[25] I accept that the Judge should have addressed the impact the sentence may have on Mr Adams’ son.17 The only information available about Mr Adams’ relationship with his son and his role in his son’s life is the pre-sentence report. The report writer records Mr Adams’ statement that his son had been in his care for most of his first year and he greatly misses seeing him more often. However, the pre-sentence report makes clear that Mr Adams has limited access to his son, with only four hours supervised contact directed per week while the rest of the time the child stays with maternal relatives under the oversight of Oranga Tamariki. Mr Lucas suggests that the change in care arrangements may have followed a family harm incident but cannot be certain. In any event, the report-writer also noted that given Mr Adams continues to face issues with substance abuse, he is unlikely to have greater access to his son unless things change, with the report writer not persuaded Mr Adams is at a point where he is willing and able to rehabilitate.
[26] While I accept Mr Adams’ genuine desire to be involved in his son’s life, there is simply insufficient information available to support a discount in this regard. The cases referred to by Mr Lucas are distinguishable as they concern offenders who have a greater presence or are responsible for the care of the child. The Judge therefore did not err in failing to give a discount on the basis of the impact of a custodial sentence on Mr Adams’ son. Mr Lucas emphasises the relevance of Mr Adams’ relationship
15 R v Dodd [2013] NZCA 270 at [32]–[33].
16 Piao v R [2020] NZCA 607 at [24]; and Akuhata-Brown v R [2024] NZHC 1637 at [20].
17 C (CA153/2023) v Police, above n 14 at [54].
with his son to a holistic approach to sentencing, which I address under the next heading.
[27]Accordingly, I consider that the end sentence was within range.
Should a rehabilitative sentence of home detention or a community-based sentence have been imposed?
[28] There is no presumption in favour of either imprisonment, home detention, or a community-based sentence. The Court must instead engage in an evaluative exercise, taking into account all the relevant purposes and principles under ss 7 and 8 of the Sentencing Act. 18 These include deterring the offender, denouncing their conduct, and protecting the community, as well as assisting the offender’s rehabilitation and reintegration into society.19 The Court must also impose the least restrictive outcome appropriate in the circumstances.20 When considering a sentence of imprisonment, the Court must have regard to the desirability of keeping offenders in the community so far as that is practicable and consonant with the safety of the community.21 Where alternatives are available, imprisonment should only be imposed where it is the only means by which the sentencing purposes in s 7(1)(a)–(c), (e), (f), and/or (g) can be achieved.22
[29] I accept Mr Lucas’ submission that the fact Mr Adams has previously served a sentence of imprisonment does not automatically mean imprisonment was the only sentencing option available to the Judge. However, I do not consider that this was a determinative factor for the Judge in deciding to impose a sentence of imprisonment instead of an alternative sentence. The Judge noted Mr Adams had a history of non-compliance, including breaches of release conditions, escaping custody, failing to answer bail, and breaching supervision. The Judge also noted that Mr Adams has previously not taken advantage of rehabilitative opportunities available to him.
18 R v Vhavha [2009] NZCA 588 at [29]; and Manikpersadh v R [2011] NZCA 452 at [14].
19 Sentencing Act 2002, s 7(e)–(h).
20 Section 8(g).
21 Section 16(1).
22 Howe v Police, above n 12.
[30] Although Mr Lucas is correct that thus far, sentences of imprisonment have not prevented Mr Adams from reoffending or placed him on a path towards rehabilitation, there is also no indication that home detention or intensive supervision would have greater prospects of assisting him. I do not consider that intensive supervision would be a suitable sentence, given Mr Adams’ recent history of non-compliance, which includes 18 instances of offending while on bail, not including the charges of threatening to injure and possession of cannabis in this case, which also occurred while on bail.
[31] In terms of home detention, Mr Teki-Clerk suggests that the only rehabilitative option that may have been appropriate was an electronically monitored sentence at a suitable residential rehabilitative facility, but says it seems no such option was available. Mr Lucas says such facilities have long waiting lists and it is simply not that easy to arrange entry into such a facility.
[32] The Judge could have granted leave for Mr Adams to apply for home detention once he found a suitable address. If home detention has been refused solely on the basis that a suitable address was unavailable, leave to apply must be granted under s 80I of the Sentencing Act. Although the Judge’s express reason for refusing leave to apply for home detention referred particularly to Mr Adams having previously served sentences of imprisonment, which is not a valid reason to decline such leave, I do not consider the Judge erred, bearing in mind the full reasoning in his decision.
[33] Mr Adams has previously been on electronically monitored bail, and breached it in 2022. His other recent history of non-compliance, including offending while on bail and breaches of supervision and conditions, suggests it is likely he will also breach the conditions of home detention if granted. This highlights the need to protect the community, hold Mr Adams accountable and deter him from offending. It is also relevant that the pre-sentence report writer recommended a sentence of imprisonment, stating:
[Mr Adams’] accumulation of offences over recent months may now persuade [the] Court that a custodial response is appropriate. Given his addiction challenges, a sentence of imprisonment would provide a period of enforced drug detoxification.
Taking into consideration his offending history, his rehabilitative needs and his current circumstances, a sentence of imprisonment and the payment or reparation is recommended.
[34] While Mr Lucas indicates that a suitable address is now available to Mr Adams, no information about its suitability or the availability of pro-social support at it is available to the Court. Nor is there any information about rehabilitative support that might be available to Mr Adams if he was on home detention. Mr Adams’ initial contact with Poutini Wairoa is positive but does not suffice.
[35] I appreciate that Mr Adams will be missing contact with his son. But to reiterate, there is no independent information available to the Court about why the care arrangements for the child changed and therefore what contact or care role Mr Adams may have in the future. Combined with the absence of information about a suitable address, it is difficult then to place weight on the sentencing principle to take account of personal and family background, as Mr Lucas submits I should do.
[36] As was the case in Howe v Police, here there are no sentencing options identified that can provide any real support for Mr Adams’ rehabilitation.23 While Mr Lucas favours the grant of leave to apply for home detention, I consider that the Judge did not err in considering a sentence of imprisonment was the least restrictive sentence appropriate in the circumstances.
Conclusion
[37] For the reasons above, the appellant has failed to demonstrate the sentence of nine months’ imprisonment was manifestly excessive.
Result
[38]The appeal is dismissed.
McQueen J
Solicitors:
Crown Solicitors Office, Christchurch for Respondent
23 At [8].
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8
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