Boyd v The King

[2025] NZHC 2548

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2025-404-335 CRI-2025-404-337 CRI-2025-404-338

[2025] NZHC 2548

BETWEEN

HARRY BOYD

Appellant

AND

THE KING

Respondent

Hearing:

2 September 2025

Appearances:

A Hart for Appellant

G Young for Respondent

Judgment:

3 September 2025

JUDGMENT OF VENNING J

[Appeal against sentence]

This judgment was delivered by me on 3 September 2025 at 3.30 pm

Registrar/Deputy Registrar

Date……………

Solicitors:           Meredith Connell, Auckland Counsel:  Hart & Associates, Auckland

BOYD v R [2025] NZHC 2548 [3 September 2025]

Introduction

[1]    Harry Boyd pleaded guilty to a number of offences. On 27 May 2025 in the District Court at Auckland Judge D J Sharp sentenced Mr Boyd to 27 months’ imprisonment on three charges of unlawful possession of a firearm, two charges of unlawfully taking motor vehicles and one of receiving a motor vehicle.1 The Judge imposed lesser concurrent sentences in relation to charges of driving under the influence of drug, dangerous driving, possession of an offensive weapon and cultivation of cannabis. Mr Boyd had also breached a community work sentence relating to an earlier conviction in relation to cannabis. The Judge convicted and discharged him in relation to that matter.

Appeal

[2]    Mr Boyd appeals against the sentence of 27 months’ imprisonment on the basis that it is manifestly excessive.

[3]    Ms Hart submits on Mr Boyd’s behalf that the appropriate sentence would be one of less than 24 months and that he should be sentenced to home detention or alternatively, granted leave to apply for home detention for the remainder of his sentence.

Preliminary point

[4]    In her written submissions Ms Hart took a preliminary point that the Judge was wrong to have declined an application for adjournment to check the availability or appropriateness of an address where Mr Boyd could have served a sentence of home detention.

[5]    There is nothing in that point. As Andrew J noted at callover, there is no jurisdiction for this Court to hear an appeal from the decision of the District Court Judge in a criminal matter to decline to grant an adjournment.2 In any event if the ultimate sentence had been 24 months or less and the Judge considered home detention

1      NZ Police v Boyd [2025] NZDC 14857.

2      Sentencing Act 2002, s 25; Criminal Procedure Act 2011, pt 6, sub-pt 4; and Brampton v New Zealand Police [2015] NZHC 2618 at [41].

appropriate leave could have been granted to Mr Boyd to apply for home detention once a suitable address was identified.

Offending background

[6]    In sentencing Mr Boyd, Judge Sharp referred to the offending in the following way:

[1]    Just stay seated, Mr Boyd, I will tell you at the end when I pass the sentence. You are here in relation to a charge of breach of community work, and you were sentenced on 27 October in Waitakere to do community work in respect of cultivation of cannabis and you pleaded guilty to breach of community work on 18 February 2025.

[2]    The offence comes from 15 December 2022, and the reason I mention it is you had that outstanding sentence throughout the course of the things that happened; that is regarded as serious, because you then have pleaded guilty to a number of charges in relation to the cultivation of cannabis.

[3]    That was the same offence for which you had the community work which you had not carried out, and you pleaded guilty to cultivation of cannabis, unlawfully possessing a firearm, two charges of that, three charges of that, I should say, together with unlawfully possessing ammunition. And those are matters on which the Crown appears and has filed submissions on sentence.

[4]    In addition to that, the police charge you with receiving a Subaru motor vehicle between 17 March and a date in August 2023, and you pleaded guilty to that matter on 3 March 2024.

[5]    There are two charges of unlawful taking motor vehicles, one from 13 February, you pleaded guilty to that on 18 February 2025. There is also an occasion of driving under the influence of drugs from 27 February 2024; also, driving dangerously on the same date; unlawfully taking a motor vehicle and being in possession of an offensive weapon.

[6]    The Crown talk about you on 27 January, the police executed a search warrant of your home in Evans Road, Glen Eden. Police found 22 cannabis plants together with the homemade firearm, two other homemade firearms in parts and six live rounds of ammunition.

[7]    The circumstances of the other offending are between 17 March 2023 and 19 March, a Subaru Forrester was stolen from Ryburn Road in Mt Wellington. The vehicle belonged to a particular person, it had a value of something in the order of $2,000.

[8]    About 11.30 on 5 August, the police stopped a white Subaru Forrester motor vehicle that had its characteristics altered in terms of colour, they observed the registration label appeared to have been removed, the engine bay

and inner door frames that were coloured red which showed that there had been a painting from red to white. A query on the chassis revealed the vehicle to have been stolen. You denied any knowledge of it being stolen.

[9]    In explanation, you said you bought the vehicle on Facebook Marketplace for $400 without registration plates, registration label or manufacturer’s tag. You stated that you owned the white Subaru Forrester, and you placed registration plates on it so you could drive it around.

[10]   As regards the other offences, the motorcycle which you took belongs to someone you do not know, and at about 13 February, on 13 February 2024 at about 2 am, the motorcycle was stolen from Mt Wellington. You had no permission to use the motor vehicle. You were in control of the motor vehicle travelling on Huia Road to Parau in Auckland. You were riding behind a grey Impreza. You started overtaking on the right-hand side, crossing a centreline on the wrong side of the road, failed to see the Subaru was indicating, already turning, and you crashed into the driver’s side door causing you to fall off the motorcycle.

[11]   Checks showed the motorcycle to be stolen. Blood samples taken were shown that you had two listed drugs in your blood. You declined to comment when spoken to by police.

[7]The offending ran from a period of December 2022 through to May 2025.

District Court sentence

[8]    The Judge referred to the purposes and principles of sentencing and a number of authorities and then, after also referring to the pre-sentence report and the impact on the victims of Mr Boyd’s offending, took the firearms offending as the lead offending. Accepting that the firearms were homemade and not sophisticated the Judge took a starting point of 18 months’ imprisonment for the charges involving firearms and ammunition. The Judge then uplifted that by 12 months for the cannabis offending. To that the Judge added a further 18-month uplift to reflect the charges of unlawful taking, receiving, dangerous driving, driving while affected by drugs and the breach of community work. The Judge noted that the offending was committed while on bail.

[9]    The Judge then reduced the resultant 48 months sentence by 12 months to take account of totality. The Judge then provided a guilty plea credit of six months (approximately 17 per cent). He then adjusted the sentence by a further three months to take into account Mr Boyd’s addiction issues which led to the end sentence of 27 months.

Further evidence

[10]   Ms Hart made the point at the outset that Mr Boyd had paid a high price for his offending in that he had sustained serious injuries in the motorcycle accident in February 2024. Mr Boyd and his mother filed affidavits confirming the extent of those injuries and the impact on him for the purposes of the appeal. Mr Young objected to their admissibility. I agree the evidence is neither fresh nor cogent. I observe that while it is accepted Mr Boyd sustained serious injuries as a result of the accident in question, they were suffered while riding the stolen motor bike, driving dangerously, and under the influence of drugs. Further, the injuries did not prevent Mr Boyd from later reoffending by riding a stolen moped in May 2025. Finally, in the PAC report prepared for sentence Mr Boyd advised that he enjoys walking his dogs so obviously he has recovered some mobility. He also said he can walk 45 to 60 minutes without needing rest.

Appeal submissions

[11]   Ms Hart submitted overall that the Judge’s approach of taking a global starting point for some charges with significant and discrete uplifts for other charges risked double-counting aggravating factors and inflating the sentence before the totality adjustment which had led to a manifestly excessive end sentence.

[12]   Ms Hart criticised the Judge for taking the firearm offending as the lead offending. As to the 18-month starting point she referred to the authority of Campbell v R in which the Court of Appeal confirmed possession of a single firearm with no mitigating circumstances generally attracts a starting point in the vicinity of two to three years’ imprisonment.3 She noted that Mr Campbell had a relatively recent conviction for aggravated robbery involving the use of a firearm. In Campbell the Court had taken a starting point of two years, six months. Ms Hart emphasised the crude and homemade nature of the firearms, two of which were in parts, and that some of the ammunition dated back to 1976. There was no gang connection, no loaded weapon, no compatible ammunition and no link to violent offending. In the circumstances she submitted the appropriate starting point for the firearm offending

3      Campbell v R [2022] NZCA 579.

was no more than 12 months (despite the fact counsel appearing for Mr Boyd in the District Court – not Ms Hart – had accepted 18 months was appropriate).

[13]   Ms Hart also criticised the Judge’s conclusion that the fact there was ammunition with the firearms was an indication that they were tied to his drug offending which was also a serious aggravating factor.

[14]   It was appropriate for the Judge to take the three firearms charges as the lead offence and it was consistent with the approach in Campbell,4 to take 18 months as the starting sentence.

[15]   Next, Ms Hart submitted that the Judge had overstated the seriousness of the cannabis offending. Of the 22 plants seized and assessed by ESR she submitted only three grams comprised cannabis plant. She noted there was no independent evidence suggesting Mr Boyd was selling the cannabis or linked to anyone who was cultivating or selling cannabis. The Crown had accepted that it was for his personal use so that the uplift for the cannabis cultivation should have been no more than four to six months.

[16]   Ms Hart referred to Cleaver v R where the sentence of eight months’ imprisonment had been reduced to six months.5 The cultivation in that case involved 12 plants, many of which had buds attached to them. She also noted that Mr Boyd had received a sentence of community work and supervision for the previous offence of cultivating cannabis in 2022. That offending had involved a similar number of plants.

[17]   As to the remainder of the charges Ms Hart submitted the 18 months uplift was excessive. She referred to the case of Smith v New Zealand Police where a sentence of three years, two months (38 months) for multiple offending was reduced on appeal to 29 months.6

4      Campbell v R, above n 3.

5      Cleaver v R [2019] NZHC 895.

6      Smith v New Zealand Police [2025] NZDC 14847.

[18]   Next, while accepting that some of Mr Boyd’s offending occurred while he was on bail for earlier matters, she argued the Judge had failed to identify which specific charges were committed while on bail, but rather subsumed that into the 18-month uplift which, in Ms Hart’s submission, obscured the scope and significance of the aggravation and risked overstating its effect. On the charge of driving under the influence she noted that the Judge had accepted Mr Boyd was suffering from drug addiction.

[19]   In her wide-ranging submissions in support of the appeal Ms Hart then referred to a number of other errors which she said the Judge had committed. First, failing to take into account that Mr Boyd’s risk of future harm had been assessed as low. I have to observe that assessment does not sit comfortably with the firearms and driving offending. Next, she submitted there was an error in not providing credit for Mr Boyd’s restrictive bail conditions. However, against that, Mr Boyd was not subjected to EM bail and further had reoffended three times while on bail. The restrictive curfew was imposed to prevent further breaches. Next, Ms Hart challenged the 17 per cent discount, noting Mr Boyd had pleaded guilty to the breach of community work as long ago as January 2023. With respect, however, he was convicted and discharged on that particular offence.

[20]   Ms Hart submitted generally that the Judge erred in not sufficiently taking account of personal factors. Overall she submitted the Judge’s perception that Mr Boyd had flagrantly ignored his previous sentence had led to an unwarranted severity in his approach. She argued that the end appropriate sentence was one of less than 24 months’ imprisonment which would support the argument for home detention.

Approach to the appeal

[21]   The appeal is brought under pt 6, sub-pt 4 of the Criminal Procedure Act 2011 (CPA). This Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed upon conviction and a different sentence should be imposed.

[22]   In Tutakangahau v R the Court of Appeal confirmed that s 250(2) of the CPA was not intended to change the approach to appeals against sentence.7 It still remains for an appellant to satisfy the appeal Court that the sentence was manifestly excessive or wrong in principle. The focus remains on whether the sentence was within range rather than the process by which it is reached.

Discussion

[23]   In her oral submissions Ms Hart focused on two main points. First, she submitted the Judge had erred by taking 12 months for the cannabis offending and also by imposing an excessive uplift for the remainder of the offending.

[24]   Ms Hart also said the Judge fell into error by resentencing Mr Boyd on the previous cannabis offending when that sentence had been cancelled by Judge Jelas on 3 October 2024.  I note  Judge  Jelas had apparently  cancelled  the  sentence  under  s 68(3)(b) of the Sentencing Act 2002 and had not gone on to impose any other sentence under s 68(3)(c).

[25]   A number of points can be made in relation to the cannabis offending. First, as Mr Young accepted for the Crown, if the cannabis offending had been a first offence then the possession of 22 small cannabis plants and seedlings would on its own, have likely led to a sentence of less than imprisonment in accordance with R v Terewi.8 However, as it was to be taken into account for sentencing with other charges which included terms of imprisonment then it was necessary to consider what sentence should be applied to it, bearing in mind the maximum sentence of seven years. Next, as the Court of Appeal acknowledged in R v Terewi, the bands are starting points before aggravating features and previous drug offending is an aggravating feature. In Mr Boyd’s case he had a recent previous conviction for exactly the same offending. Those factors support the starting point taken by the Judge of 12 months for the cannabis offending in the context of this case. Further, and in any event, the actual ultimate sentence imposed for the cannabis offending was eight months.

7      Tutakangahau v R [2014] NZCA 279 at [26].

8      R v Terewi [1999] 3 NZLR 62.

[26]   The second main point Ms Hart addressed in her oral submissions was the uplift for the remainder of the offending. She submitted that the Judge had seriously overstated the seriousness of the offending by taking 18 months as the composite uplift whereas eight to 12 months was the maximum that should have been applied. Relatedly, she submitted the Judge had effectively resentenced Mr Boyd on the 2022 cannabis charge.

[27]   However, as I read the Judge’s sentencing notes, while he did refer to the original cannabis offending for the breach of the community work as being for sentence, he did not include that in the 18-month uplift for the further offending. At

[25] of his decision he explained how the 18-month uplift was arrived at:

[25] That brings me to the situation regarding the unlawful taking, the receiving, the dangerous driving, the driving affected by the drugs that you had taken and the breach of the community work. That takes me to an 18- month uplift. I note that this was offending committed while on bail.

[28]   There was no reference to the previous cannabis cultivation. The unlawful taking, receiving, dangerous driving, driving affected by drugs readily supported the 18-month uplift. The offending was in itself serious.

[29]   Further and in any event to the extent that any one of the individual elements of the sentence might have been excessive by one to three months the matter was remedied by the Judge reducing the adjusted starting point of 48 months by a quarter or 12 months to 36 months. That was a significant reduction for totality. Although Ms Hart criticised the totality exercise it was entirely orthodox.

[30]   It is also apparent that the starting sentence of 12 months was taken for the current charge of cannabis cultivation.

[31]   Finally, when imposing the sentence for cultivation of cannabis, as noted, the sentence imposed was eight months’ imprisonment. On the breach of the community work the Judge convicted and discharged Mr Boyd.

[32]   As the Court has said on a number of occasions when considering whether a sentence is manifestly excessive or not the focus must be on the end sentence, not its

individual components. Standing back and looking at Mr Boyd’s offending (which occurred over a significant period of time, including while he was on bail) an end sentence for all of the offending of 27 months was within range and well available to the Judge.

Result

[33]The appeal against sentence is dismissed.

Venning J