Allen v Police

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2016-442-11 [2016] NZHC 1934

BETWEEN

JACOB WILLIAM ALLEN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	9 August 2016
Appearances:	T J D Bamford for Appellant J R T Crawford for Respondent
Judgment:	18 August 2016

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 18 August 2016 at 4.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Bamford Law, Nelson

O’Donoghue Webber, Nelson

ALLEN v POLICE [2016] NZHC 1934 [18 August 2016]

Introduction

[1]      The appellant, Mr Jacob William Anderson, appeals against a sentence of 22

months’ imprisonment imposed by Judge Zohrab in the District Court at Nelson on 4

February 2016.

[2]      He appeals his sentence on the basis that the Judge should have made an order under s 80I of the Sentencing Act 2002, granting him leave to apply for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if a suitable residence became available.  Alternatively, he appeals on the grounds that the Judge wrongly imposed a sentence of imprisonment in favour of a sentence of home detention.

Background

[3]      Following a sentence indication on 4 February 2016, where a sentence of 25

months’ imprisonment was indicated,1 the appellant pleaded guilty to:2

(a)       supplying a psychoactive substance (LSD);

(b)      possessing a psychoactive substance (LSD) for supply; (c)     selling a class C drug (cannabis);

(d)      offering to sell a Class C drug (cannabis); (e)   possessing a class B drug (MDMA); and (f) cultivating cannabis.

[4]      In his sentence indication, Judge Zohrab noted that the appellant had “made a

career choice as far as drugs were concerned” and, in the circumstances, “a prison

1      An earlier sentence indication was given by Judge Zohrab on 24 June 2015, wherein a sentence of 31 months’ imprisonment was indicated.   This sentence indication included LSD charges, which were later dismissed.

2      Psychoactive Substances Act 2013, s 70(1)(a) and s 70(1)(c); Misuse of Drugs Act 1975, s

6(1)(e) and (2)(c), s 7(1)(a) and (2), and s 9(1).

sentence  was  the  only  appropriate  response”.    The  Judge  noted  that  while  the sentence indicated, was close to the point whereby a sentence of home detention could be considered, “I see no reason to look to artificially reduce it further, given the nature of the offending, the drugs involved and the damage that drugs do, and obviously he would be eligible for parole at a third point”.

[5]      Before  sentencing,  and  following  the  request  of  the  appellant’s  (new) counsel,   Judge  Zohrab  issued a Minute directing that  a pre-sentence report be prepared, noting:

1.The defendant has pleaded Guilty following an indication that prison is the final outcome.

2.I am prepared to call for a pre-sentence report but not an appendix report.

3.If the defendant is seeking to argue that he should be sentenced to anything less than prison, then he will need to consider whether he wishes to deflect from the sentence indication and make the appropriate application.