Buchanan v Police
[2024] NZHC 3983
•20 December 2024
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2024-454-40
[2024] NZHC 3983
BETWEEN DYLAN BRUCE BUCHANAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 18 December 2024 (via VMR) Counsel:
D Davies for Appellant
G M Stone for Respondent
Judgment:
20 December 2024
JUDGMENT OF McQUEEN J
[1] The appellant, Mr Dylan Buchanan, was sentenced on 17 October 2024 in the Palmerston North District Court to two years and five and a half months’ imprisonment.1 He was sentenced on the following charges:
(a)attempted burglary;2
(b)failing to stop following a non-injury accident;3
(c)burglary (x six);4
(d)possession of a methamphetamine pipe;5
1 New Zealand Police v Buchanan [2024] NZDC 25485.
2 Crimes Act 1961, s 231(1)(a); s 72. Maximum penalty 10 years’ imprisonment.
3 Land Transport Act 1998, s 35(1)(c).
4 Crimes Act, s 231(1)(a). Maximum penalty 10 years’ imprisonment.
5 Misuse of Drugs Act 1975, ss 13(1)(a) and (3).
BUCHANAN v NZ POLICE [2024] NZHC 3983 [20 December 2024]
(e)possession of a cannabis utensil;6
(f)possession of ammunition;7
(g)possession of a firearm;8 and
(h)possession of a class C controlled drug.9
The offending
[2] The first burglary offence occurred between 17 and 19 April 2024. Mr Buchanan entered the Fielding property where his mother and step-father lived. He retrieved the keys to the gun cabinet in the garage and emptied the gun cabinet of six firearms including a Remington 7mm 783 rifle, a Poseidon shogun, a Castellani shotgun, a Howa 308 rifle, an Eternal 5 shot shogun, a Ruger .22 rifle with scope, 45 rounds of 308 ammunition, 480 rounds of .22 ammunition, 70 shotgun shells and 24 rounds of 7mm ammunition.
[3] On 17 April 2024, the defendant crashed into a vehicle parked on the side of the road, causing it to shunt forwards 10 to 15 metres. He continued driving, giving rise to the charge of failing to stop.
[4] Between the 27 and 28 April 2024, Mr Buchanan committed a further five burglaries and one attempted burglary. On 27 April 2024 Mr Buchanan and an associate committed two burglaries at Subway in Bulls. In both of these burglaries, drinks and other items were taken, including a till containing $800 in cash. Later that day Mr Buchanan attempted to enter the Bulls Bakery Café by putting a drum below a window and trying to pull it open. This gave rise to the attempted burglary charge. On 28 April 2024, Mr Buchanan entered BJW Motors and took various tools and scanners. When confronted by a neighbour, there was a scuffle with Mr Buchanan. Also on 28 April 2024, he entered Marton Printery through an unlocked door and stole a key. The same day he entered the yard of Bridgestone Tyres Marton, and cut the
6 Misuse of Drugs Act, ss 13(1)(a) and (3). Maximum penalty one years’ imprisonment, $500 fine.
7 Arms Act 1983, s 22B. Maximum penalty $10,000 fine.
8 Arms Act, s 45(1). Maximum penalty four years’ imprisonment, $5,000 fine.
9 Misuse of Drugs Act, s7(1)(a) and (2). Maximum penalty three months’ imprisonment, $500 fine.
padlock off a container where tractor tyres were stored. He was unable to take the tyres.
[5] On 1 May 2024, Mr Buchanan was stopped by Police in his vehicle. He was arrested and searched. During the search Police found the Howa 308 rifle taken in the residential burglary, which was loaded with four rounds, including one in the chamber. In the driver’s side pouch of the vehicle Police found an additional eight rounds of ammunition. Also in the vehicle were some of the items taken in the burglaries, a cannabis plant, a used methamphetamine pipe, and a cannabis bong.
Criminal History
[6] Mr Buchanan has a limited criminal history, having only two previous convictions. These both occurred in 2021. The first was for driving while his licence was suspended, and the second was for driving while disqualified. Until receiving the sentence under appeal, Mr Buchanan had never been imprisoned.
Pre-sentence reports
[7] The Provision of Advice to Courts report (PAC report) dated 27 September 2024 recommended a sentence of home detention. The report writer described Mr Buchanan as a 21-year-old New Zealand European man. He reported having a good relationship with his mother who he lived with following his parents’ separation. He has reported having a long-term relationship with his partner, being together since they were 13 years old. They have a two-and-a-half-year-old daughter, and another child due in November. The report writer considered Mr Buchanan appeared genuine in his comments around being committed to his family. His partner described Mr Buchanan’s desire to undergo alcohol and drug counselling a “massive step for him”. She did not report any safety concerns about his return home.
[8] Mr Buchanan left school at age 15. Prior to his offending he was employed full time in a Rangitikei dairy farm, and he says he would seek to regain employment following his potential release.
[9] The report writer described harmful substance use as the leading factor in Mr Buchanan’s offending. Mr Buchanan reported consuming cannabis for “all his life”. Prior to his offending he stated he was using methamphetamine as a “bit of a boost through the day” in response to “being hammered at work” which led to issues with his back and hips, and which then led to a severe addiction.
[10] The report writer considered Mr Buchanan was moderately remorseful for his actions, and that he only considered the impact of his offending on his victims once he stopped using methamphetamine. He also has a significant level of remorse for the impact of his offending on his young children and partner.
[11] The PAC report records that a suitable address is available for an electronically-monitored sentence. The address is that of the grandparents of Mr Buchanan’s partner. Mr Buchanan’s partner and children also live at the address. Consent has been obtained from the occupants.
[12] An alcohol and drug (AOD) report obtained identified that Mr Buchanan started using alcohol at age 14 or 15, with his alcohol use increasing at age 16. He reported that from age 18 he has “drunk a box of 12 RTD’s a day”. He first smoked cannabis at age 13, increasing to daily use by age 16. He said he first used methamphetamine at 20, and a gram of methamphetamine would last him one week. He stated that he is motivated to change, and open to attending treatment programmes and counselling to learn how to live free from drugs and alcohol. The report writer assessed Mr Buchanan as motivated to address his addiction and considered it would be beneficial for him to gain the knowledge and tools to maintain his motivation. If the Court imposed a community-based sentence, the report writer considered that Mr Buchanan would benefit from alcohol and drug treatment counselling with Manchester House in Fielding. If he finds he is not coping without drugs and alcohol he will be able to first talk to his probation officer, and then self-refer to M.A.S.H Trust in Palmerston North.
Decision under appeal
[13] The Judge began by considering the burglary of Mr Buchanan’s mother and step-father’s house, between 17 and 19 April 2024. He said that there were many
aggravating features for the burglary, not least of all, the fact that it was theft of firearms and 600 rounds of ammunition. He considered that the notion that the theft was for the purposes of hunting was “not developed” and that it is unclear where the weapons and ammunition ended up, as only one firearm was recovered. He then said that, given Buchanan’s methamphetamine addiction, they are potentially now “in the hands of criminals”.
[14] Turning to the burglaries between 27 April 2024, and 28 April 2024, the Judge noted what property was taken. He then described how Mr Buchanan was found by police on 1 May 2024, in possession of one of the rifles taken from his mother’s home. Given there was no explanation as to why this was loaded, he said “I think I am entitled to conclude this was connected up with crime”.
[15] The Judge noted Mr Buchanan’s limited criminal history, and a pre-sentence report where Mr Buchanan told the probation officer that he was in the middle of a serious methamphetamine addiction and acknowledged the harm caused to his victims. The Judge also noted Mr Buchanan’s family, particularly his daughter, and pregnant long-term partner; as well as his struggles with education due to dyslexia. He noted the comments regarding Mr Buchanan’s methamphetamine addiction, and his comments to the probation officer that he was increasingly unable to support his addiction. This was supported by the alcohol and drug report where Mr Buchanan said he was propelled into alcohol and methamphetamine use from the age of 20, but is motivated to change.
[16] The Judge noted the letters from the Salvation Army programme, Mr Buchanan’s former employer, and from Mr Buchanan to the Judge, and to his stepfather. However, the Judge also noted that in the victim impact statement, Mr Buchanan’s stepfather referred to Mr Buchanan yelling at his mother, and accusing her of “dobbing him in to ruin his life” which the Judge considered showed he was not taking ownership of his decisions.
[17] Turning to the sentence, the Judge started with the residential burglary, noting the address was targeted, residential, and that the offending was a violation, given the emotional connection the victims had to their home. Further, there was an element of
breach of trust, given the relationship with the occupants. Additionally, the fact that firearms were taken was an aggravating factor. The firearms were valued at about
$4,800, but the harm to the community was considerable given four out of the six firearms remain unrecovered. The Judge considered similar cases, and assessed that a reasonable starting point was three and a half years’ imprisonment.10
[18] The Judge then considered the offences of possessing a firearm and ammunition. He considered that given the firearm was loaded and there was ammunition, it was for the purposes of criminal behaviour, which was an aggravating factor. These charges would warrant a starting point of two and a half years’ imprisonment. The Judge then said he would increase the starting point by 12 months.
[19] For the remaining burglaries (and attempted burglary), the Judge considered these as a burglary spree. A range of between 12 months and two and a half years’ imprisonment was available. Having regard to the need for totality, the Judge considered that a 12-month increase is a “generous approach” to ensure the end sentence is appropriate. The other minor charges did not result in a further increase to the starting point, resulting in an end starting point of five and a half years’ imprisonment.
[20] The starting point was reduced by 25 per cent for Mr Buchanan’s guilty plea, and 15 per cent because of his age. The starting point was then reduced by 10 per cent in consideration of Mr Buchanan’s engagement with efforts to do better for himself. Finaly, a reduction of five per cent was awarded for remorse. This resulted in an end sentence of two years, five and a half months’ imprisonment. Home detention was therefore not available for consideration.
[21] In addition to the sentence of imprisonment, the Judge made orders for reparation. This consisted of $300 for the residential burglary and $2,645.28 for second Subway burglary.
10 Shierney v Police [2014] NZHC 2963; Otter v Police [2015] NZHC 2857.
Approach to appeal
[22] Under s 250 of the Criminal Procedure Act 2011, an appeal against sentence must only be allowed if the Court is satisfied that, for any reason, there was a material error in the sentence imposed and a different sentence should have been imposed.11 The focus is on the final sentence reached. Although s 250 does not use the expression “manifestly excessive”, it is a principle that is well-established in the Court's approach to determining the extent of the error in sentence appeals.12
Submissions
Appellant’s position
[23] Mr Buchanan appeals his sentence on the ground that it is manifestly excessive. It was submitted that the starting point of three and a half years’ imprisonment for the residential burglary was manifestly excessive and disproportionate. The uplifts were also in error and resulted in an overall starting point disproportionate to the offending. Additionally, further discounts should have been applied for personal factors, including the relevance of addiction to Mr Buchanan’s offending. The least restrictive outcome for the appellant who is young, with limited prior convictions, and significant rehabilitative needs, was a period of home detention.
[24] The first ground of appeal was that the starting point on the lead charge of the residential burglary was too high. Counsel for Mr Buchanan, Ms Davies, cites two cases which she submits are similar to this offending, and where a Judge imposed a considerably lower starting point. In Black v Police, the High Court allowed an appeal against a sentence of three years and nine months’ imprisonment and substituted a sentence of one year and 10 months’ imprisonment on charges of burglary, unlawful possession of a firearm, unlawful possession of explosives and possession of cannabis, methamphetamine and utensils for using methamphetamine.13 Mr Black was one of the offenders who broke into the victim’s home and, once inside, stole five firearms and ammunition valued at over $3,750.00. On appeal, the High Court held the five-year starting point premised on comments made in Shierney v Police was too
11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
12 At [32]–[35]; and R v Shipton [2007] 2 NZLR 218 (CA) at [138]–[140].
13 Black v Police [2015] NZHC 2182.
high. The Court considered it was a significant aggravating factor that the burglary targeted the victim’s collection of guns but also considered the fact the burglary was planned to be carried out when the occupant was well away from the property somewhat reduced the seriousness of the offending. On appeal, the appropriate starting point held to be appropriate on the charge of burglary was two years and three months imprisonment and an uplift of seven months was applied to account for the remainder of his offending.
[25] Ms Davies referred to R v Inia which also considered the application of Shierney v Police.14 This case involved one charge of burglary of nine firearms and ammunition, together with gun accessories valued at $9,000. The Court considered on appeal that a 20-month starting point was appropriate. Ms Davies also referred to other authorities which she submits show that a lower starting point was appropriate.15
[26] Counsel for Mr Buchanan submitted that, while the burglary was serious in that a number of firearms and ammunition were stolen, it is relevant that the burglary was committed when the occupants were not home which eliminated confrontation occurring. Therefore, and on the basis of the authorities cited, she says a starting point of no more than two and a half years’ imprisonment was appropriate.
[27] Second, Ms Davies submits that the uplift for possession of a firearm and ammunition stolen in the burglary was manifestly excessive. While it is acknowledged an uplift was required to reflect that Mr Buchanan was located with a loaded firearm in his vehicle, Ms Davies submits a 12-month uplift was manifestly excessive and amounted to double counting given the connection between the firearm and the burglary. Ms Davies acknowledges that a 12-month uplift would have been justified if the firearm had not been related to the burglary. She cited the cases Newton v R and Pouriva v R, to support the submission that an appropriate uplift for possession of a loaded firearm was six months.16
14 Shierney v Police, above n 10; R v Inia [2015] NZHC 873.
15 Miller v Police [2012] NZHC 3237; Nicol v Police [2013] NZHC 3326; Yukich v R [2010] NZCA 499; Whitfield v Police [2024] NZHC 2270.
16 Newton v R [2021] NZHC 3370; Pouriva v R [2024] NZHC 2598.
[28] Third, Ms Davies submits that the total starting point did not reflect the principle of totality, with the 12-month uplift for the remaining burglary offending. The burglaries were all commercial and did not involve high value items.
[29] Finally, Ms Davies submits Mr Buchanan was entitled to greater discounts for personal factors. In terms of the discount for youth, 20 per cent should have been allowed. This was because the offending was largely impulsive, he has never had a sentence more serious than disqualification, and he has a great capacity for rehabilitation because of his age, motivation and pro-social support.
[30] In addition to the 10 per cent awarded to recognise his efforts to “do better for himself”, Ms Davies submits Mr Buchanan should also have been given a discount in recognition of the causative link between his methamphetamine addiction and the offending, and his motivation to deal with his addiction. Ms Davies relies on Zhang v R and Berkland v R.17 She submits it is relevant that the AOD report writer notes Mr Buchanan had some insight into his drug addiction, recognises it is linked to his offending and wants to turn his life around for his family. He has also asked to be referred for individual counselling and to attend the methamphetamine support group at Manchester House.
[31] Considering the sentence in the round, Ms Davies submits that if the Court agrees a lower starting point was warranted, or greater discounts should have been applied, the appropriate sentence should be less than two years. In light of this, when Mr Buchanan’s culpability and personal factors and ss 7 and 8 of the Sentencing Act 2002 are considered, an end sentence of less than 24 months’ imprisonment, commuted to home detention, is the appropriate outcome. In making this submission Ms Davies notes that the PAC report writer recommended a sentence of home detention.
17 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648; Berkland v R [2022] NZSC 143, [2022]
1 NZLR 509.
Respondent’s position
[32] Counsel for the Police, Mr Stone, submits that the sentence was not manifestly unjust. The starting points adopted were appropriate for the seriousness of the offending, and the various discounts awarded were appropriate and accurately reflected Mr Buchanan’s personal background.
[33] In respect of the lead offending, the Judge identified a number of aggravating factors, and a deep breach of trust. In these circumstances Mr Stone says a starting point of three and a half years’ imprisonment was justified. He submits the present offending was at least as serious as that in Shierney v Police, and arguably more serious, given in that case while the address was targeted, the firearms were not. This is compared to the present case where there is strong inference Mr Buchanan intended to target the firearms owned by his parents.
[34] In respect of the remaining burglary offences, Mr Stone says the Court was correct to conclude that, if taken cumulatively, a starting point of five and a half or six years’ imprisonment could have been adopted. He says a significant reduction was allowed in respect of totality, resulting in an uplift of only 12 months’ imprisonment. In particular, the BJW Motors burglary on 28 April 2024 was serious given that Mr Buchanan was confronted and there was a scuffle with an intervening civilian. Further, while the offending was unsophisticated, it had hallmarks of planning. Mr Stone says Mr Buchanan likely had tools with him to assist his access and wore a disguise. He cited two cases where starting points of 12 and 20 months respectively were adopted involving single burglaries of commercial properties.18
[35] In respect of the firearms and ammunition offending, Mr Stone acknowledged the need for the Court to make a totality adjustment, which it did appropriately by only imposing a 12-month uplift. The offending was serious. The firearm was readily accessible, loaded and actioned, meaning it was able to be fired immediately. In combination with the drug possession charges, Mr Stone submits a starting point of two and a half years’ imprisonment would be available in isolation. He says this case
18 Ikahihifo v Police [2012] NZHC 3553; Benson v Police [2018] NZHC 296.
is distinguishable from Pouriva v R, as Mr Buchanan’s burglary offending did not involve the use of a firearm, just the taking of them.19
[36] In respect of the personal aggravating and mitigating factors, Mr Stone submits there was no error. Personal aggravating and mitigating factors fall to be considered on a case-by-case basis. In the present case, Mr Stone submits the Court was appropriately placed to assess the relevant personal features of Mr Buchanan and that the discounts allowed for his personal circumstances were clearly within range.
Analysis
Did the Judge err in setting the starting point?
[37] I first consider whether there has been any error in setting the starting point for the lead charge of the residential burglary.
[38] There is no tariff decision for burglary, given that the range of circumstances in which the offence can be committed varies widely.20 This Court in Gargus v Police identified the relevant factors set out in earlier decisions as follows:21
[34] There is no tariff decision which governs sentencing for burglary offending. In Senior v Police, which predates the sentencing methodology laid down in Hessell v R and R v Taueki, the Full Bench of the High Court identified factors which had historically been regarded as aggravating in burglary offending, including behaviour which involves actual danger of confrontation with occupiers, behaviour which makes a victim feel targeted, wanton destruction of property, theft of high value or sentimental items, sophisticated planning, and offending while on bail, parole, or in close proximity to other burglary charges.
[35] In R v Nguyen the Court of Appeal drew on the factors identified in R v Mako (the aggravated robbery tariff case) in assessing the seriousness of burglary charges. It considered that the factors which were relevant to the criminality of the offending included the degree of planning and sophistication in the offending, the nature of the premises entered, the nature and value of property stolen, damage done, the impact and potential impact upon occupants or owners of property, and the extent of the offending where multiple burglaries were involved.
19 Pouriva v R, above n 16.
20 Arahanga v R [2012] NZCA 480 at [78].
21 Gargus v Police [2015] NZHC 3127 as cited in Lenihan v R [2015] NZHC 3127 at [26] and
Pompey v Police [2023] NZHC 2378.
[36] In Arahanga v R , the Court of Appeal stated that burglary of a domestic residence is a significantly aggravating feature at sentencing due to the heightened risk of confrontation with the occupants.
[39] As identified by the District Court Judge, there are a number of aggravating factors present in the residential burglary offence. This offending was a deep breach of trust, given Mr Buchanan entered his mother and stepfather’s home. Additionally, I agree with the District Court Judge that it is a safe inference that Mr Buchanan deliberately targeted the property for the firearms. No other property was taken, and Mr Buchanan would have known that the house contained firearms. This was a burglary of a residential property at night which typically is an aggravating factor given the risk of an altercation with the occupants. However, I note that it appears no one was home during the burglary, a fact that Mr Buchanan likely knew.22 Nonetheless, as Mr Stone submits, this highlights the pre-meditation involved.
[40] I consider that the offending is similar to the case of Police v Shierney where the sentencing Judge commenting that “he was of the view that if the property had been targeted because they were setting out to steal firearms” a higher starting point would have been appropriate.23 The lesser number of guns involved and the fact that the offenders returned to the property in Police v Shierny does not outweigh the aggravating features in the present case. Similarly in Otter v Police, the Judge identified aggravating factors of a breach of trust and pre-meditated targeting of firearms. In that case, the defendant had worked for the victim for several years and entered the property for the purpose of taking firearms. In that case, a starting point of three years’ imprisonment was adopted.
[41] Overall, while a starting point of three and a half years may be at the upper level of the range available, it cannot be said to be in error, given the significant aggravating factors and the relevant authorities.
22 Both counsel accept there is an available inference from the summary of facts, formal witness statement of Mr Buchanan’s step-father and his victim impact statement that no-one was at the property when Mr Buchanan entered it and that he knew it would be unoccupied at that time. This was the conclusion the sentencing Judge reached, see Police v Buchanan above, n 1 at [20].
23 At [13].
[42] I turn now to briefly consider the remaining grounds raised with the starting points. In regard to the remaining burglary offending, I am satisfied that an uplift of 12 months for four burglary charges and one attempted burglary was within range. I accept that these offences are clearly less serious than the lead charge. The property taken was minimal, and the burglaries were committed against commercial property. The most serious was the BJW burglary, where an altercation with a person present occurred. I am satisfied that the cases considered by the Judge, and cited by the Police, show that a 12-month uplift is clearly within range.24 In particular, I note that in the case of Benson v Police, where the defendant entered into a Subway at night, taking nothing, a starting point of 12 months’ imprisonment was imposed.25
[43] Finally, I consider whether the uplift for the possession of a firearm and ammunition was in error. Here, Ms Davies’ main submission was that the uplift amounted to double counting, given the firearm Mr Buchanan possessed was one he took during the residential burglary. I am not satisfied that the 12-month uplift amounted to double counting. In reading the decision, it is clear that the Judge was cognisant of the potential overlap between the possession charge and the residential burglary and adjusted accordingly for totality. He stated that the offences occurred 12 days apart, and that in that space of time, the other firearms taken in the burglary were disposed of, leaving Mr Buchanan to retain just the one for his own use, which formed the basis of the possession charge.26
[44] Further, I am satisfied that the cases cited by Ms Davies are distinguishable. For example, in Pouriva v R the appellant was charged with reckless discharge of a firearm, for which a four-year starting point was adopted.27 He then was arrested shortly afterwards for possession of the same firearm, meaning that a totality adjustment was clearly required. For this reason, the six-month uplift was upheld on appeal. Similarly, in Newton v R a totality adjustment was appropriate given that the firearm that formed the basis of a possession charge was the same firearm involved in an aggravated robbery charge. I accept Mr Stone’s submission that this case is distinguishable from the cases cited by Ms Davies. In comparison, Mr Buchanan did
24 Ikahihifo v Police above n 18; Benson v Police, above n 18.
25 Benson v Police, above n 18.
26 At [24].
27 Pouriva v R, above n 16.
not use the firearm in the burglary. The Judge inferred that he retained the firearm after the burglary for a further, and separate, criminal purpose. These matters suggest the two offences are not directly connected. For these reasons, an uplift of 12 months was not in error.
Did the Judge err in assessing the personal mitigating factors available to the appellant?
[45] I now turn to the discounts available to Mr Buchanan. The focus of Ms Davies’ submissions was that the discount for youth should have been higher and that the District Court Judge did not consider the causal link between Mr Buchanan’s methamphetamine addiction and his offending. The Judge did award Mr Buchanan 10 per cent for “bettering himself”, however no reference was made to the link between addiction and the offending.
[46] I first consider whether the Judge erred in not awarding a separate discount to recognise Mr Buchanan’s addiction. In Zhang v R the Court of Appeal concluded that a pre-existing state of addiction that impairs a person’s decision making can be a mitigating consideration in sentencing.28 The Court considered that the addiction to methamphetamine can lead to pro-social tendencies being overwhelmed by dependence on methamphetamine.29 In Berkland v R the Supreme Court held that where it can be established that a background factor was an operative or proximate cause of the offending, it is likely to be a strong factor in sentencing.30 It is sufficient for there to be a “causative connection” between the background factor and the offending. The stronger the causative link, the stronger the mitigating factor is on the sentence.
[47] Considering the submissions by Ms Davies, and the information provided in the PAC report and AOD report, I am satisfied there is a clear causative link between Mr Buchanan’s methamphetamine addiction and the current offending. As discussed above, Mr Buchanan told the PAC report writer that he committed the burglaries in order to fund his lifestyle and addiction. I acknowledge Mr Stone’s submission that
28 Zhang v R above n 17 at [138].
29 At [145].
30 Berkland v R above n 17 at [109].
the Court should differentiate between the causative effect of Mr Buchanan’s addiction on the firearms burglary and on the subsequent charges. I do not agree that assessing the impact of addiction can be separated out in such a manner. Rather, I consider that addiction clearly influenced all of Mr Buchanan’s offending behaviour so as to amount to a causative effect. This is acknowledged by the District Court Judge in accepting a submission from defence counsel that the appellant’s life “flipped within a month”.31
[48] Harmful substance use, particularly methamphetamine and cannabis, were assessed by the report writer as offending-related factors in the PAC report. Further, the content of the AOD report suggests a strong link between Mr Buchanan’s offending and his methamphetamine use. The report writer reported that Mr Buchanan had a severe substance abuse disorder pertaining to methamphetamine. She considered that he showed some insight into his drug addiction and wanted to turn his life around and live free from drugs and alcohol and start a new life without offending. The report writer emphasised the importance of those with such motivation acting quickly before relapse can occur.
[49] In recognition of the causative link between Mr Buchanan’s offending and his methamphetamine addiction, I accept it was an error not to award a further discount. Finally, in making this assessment, I have considered whether the District Court Judge recognised the role of addiction in the credit provided for rehabilitation. However, I am satisfied that a discrete recognition of the causative link of addiction is required, separate from recognition of Mr Buchanan’s rehabilitative efforts. While the discount for rehabilitation recognises Mr Buchanan’s future potential, a discount for addiction recognises the factors that led him to committing this offending in the first place. Therefore, on the basis of the material before me, I am prepared to give Mr Buchanan a further discount of 10 per cent.
[50] Ms Davies also submitted that the appellant should have received a 20 per cent discount for his youth, compared to the 15 per cent awarded by the District Court Judge. I accept that youth is a relevant mitigating factor, in that young people may be more susceptible to negative influences, the effect of imprisonment may be crushing,
31 Police v Buchanan, above, n 1 at [20].
and that young people have greater capacity for rehabilitation.32 I consider that while a 20 per cent discount for youth was available to the Judge in the circumstances, it cannot be said that a discount of 15 per cent was in error.
[51] Standing back, as I am required to do, I consider that the sentence of two years and five and a half months’ imprisonment was manifestly excessive. The starting point identified, while stern, was within range. However, the discounts provided to Mr Buchanan in light of his personal background were in error. In particular, the causative link between his methamphetamine addiction and the offending should have been recognised by a discrete discount of 10 per cent.
[52] The effect of this further discount of 10 per cent results in an overall revised sentence of 23 months’ imprisonment.
Is home detention available?
[53] A sentence of 24 months’ imprisonment or less is a “short term sentence”.33 Following the two-step process of R v Vhavha34, this means I am required to consider a sentence of home detention.35 There is no presumption in favour of home detention being imposed.36
[54] Mr Buchanan has been assessed as a low to medium risk of harm, should he re-offend in a similar manner. Without his rehabilitative needs being addressed he has been assessed as being a medium to high risk of reoffending.
[55] In a community-based sentence, Mr Buchanan will be able to address his rehabilitative needs as identified above, namely help with addiction. Considering the information before me, it appears there is a realistic prospect that Mr Buchanan will be able to address these rehabilitative needs and reduce the risk of his re-offending. He appears to be motivated to engage in rehabilitative efforts, and appears to have a
32 Churchward v R [2011] NZCA 531.
33 Sentencing Act 2002, s 15A.
34 R v Vhavha [2009] NZCA 588 at [31] per William Young P, cited with approval in Manipersadh v R [2011] NZCA 452 at [14]–[16].
35 Sentencing Act, s 15.
36 R v Stacey [2008] NZCA 465 at [21]; and Palmer v R [2016] NZCA 541 at [19].
supportive partner, with his young children also motivating him to address the causes of his offending. Most importantly, I note his limited criminal history and young age, which suggest that, should Mr Buchanan be given the chance to undertake rehabilitation, he would be able to avoid reoffending.
[56] There are further benefits to imposing a sentence of home detention as opposed to imprisonment. I note that the PAC report recommended a sentence of home detention. The PAC report said that home detention would allow Mr Buchanan to address his offending needs and access rehabilitative support. No barriers to compliance were identified, and a suitable address was identified. With a non-custodial sentence, offenders have better access to the pro-social support that they wish to obtain and which will assist them in rehabilitation and reintegration into society.37
[57] Mr Buchanan committed serious offending, and I acknowledge the impact on his victims, particularly, his mother and stepfather. However, overall, I consider that home detention best meets the purposes and principles of sentencing.38 Mr Buchanan is young and has only minor previous convictions. His offending, while serious, is the first of its kind for him and appears motivated by his methamphetamine addiction. As already discussed, he appears willing to engage in rehabilitation efforts, with his partner and young family significant motivators for rehabilitation. Accordingly, I am satisfied that the least restrictive sentence that is appropriate in the circumstances is home detention.
[58] When a sentence is commuted to home detention, it is generally halved, reflecting that those serving short sentences of imprisonment are eligible for parole after half of their sentence, whereas home detention must be served in full.39 For this reason, I consider that the 23-month sentence of imprisonment is appropriately converted to 11 and a half months of home detention.40
37 Mabey v New Zealand Police [2024] NZHC 1663 at [36].
38 Sentencing Act, ss 7 and 8. See Doolan v R [2011] NZCA 542 at [38]; and Birch v R [2022] NZHC 2448 at [16].
39 Parole Act 2002, s 86(1). See an example of this approach in Stevens v R [2023] NZHC 2021 at [51].
40 I note that 12 months is the maximum duration of home detention, per Sentencing Act, s 80A(3).
[59] Finally, I note that Mr Buchanan has spent a total of 231 days in custody, equating to just over seven months.
[60] It is therefore appropriate to adjust the period of home detention to take into account time spent in custody. There is a divergence of approaches in this Court as to how best to recognise this time spent.41 I agree with and respectfully adopt the observations of Mander J in Kirikino v Police:
[19] Different approaches have been taken to the issue of how to recognise time spent on remand in custody when imposing sentences of home detention. In some decisions, the sentencing Court has deducted half the remand period from the home detention sentence on the basis that, as home detention is typically half of the equivalent prison sentence, it is consistent to allow half of the time served on remand in custody to be factored into the final sentence (the “two equals one” approach).42 However, most cases appear to have adopted the approach of adjusting the period of home detention to equivalently reflect the time spent in custody on a “one for one” basis.43
[20]Fitzgerald J in Mason v Police commented as follows:44
I can see merit in both approaches. A two for one approach recognises that a sentence of imprisonment and a sentence of home detention are not the same and are not intended to be the same. In those circumstances, and as Ms Bourke observed in her oral submissions, any perceived “unfairness” in the two for one approach simply reflects that home detention is not the equivalent of imprisonment and in the hierarchy of sentences, is a less restrictive sentence. On the other hand, the rationale for the one for one approach is that an offender sentenced to a sentence of home detention, which is itself based on a term of imprisonment, should ultimately be in no worse position (in terms of the length of their home detention sentence) than if the sentence of imprisonment had not been commuted to home detention.
(footnote omitted)
[21] Whatever the preferable approach to such calculations, I think it clear that, as held by this Court in Mason v Police, any such discount is more appropriately applied after converting the sentence from imprisonment to home detention, rather than beforehand.45 As noted by Ms Freeman, this accords with s 82 of the Sentencing Act which directs the Court not to take account of time served when determining the length of a term of
41 See Kirikino v Police [2023] NZHC 1821. See also the discussion in Horne v R [2023] 2860.
42 Warrie v R [2019] NZHC 633 at [30]–[33].
43 Kirk v R [2019] NZHC 3361; R v Tai [2021] NZHC 2769; Paul v Police [2021] NZHC 1924; Pou v Police [2021] NZHC 1068; and Harris v Police [2022] NZHC 345.
44 Mason v Police [2017] NZHC 126, at [35].
45 At [31].
imprisonment. Moreover, whatever process is applied, the exercise remains an evaluative one.46
[61] Ultimately, my task is to determine the appropriate period of home detention taking into account the relevant sentencing purposes and principles.47
[62] Counsel in this case agreed at the hearing that the “one for one” approach would be appropriate in this case, should I need to make an adjustment. Taking that into account, and following the approach described above, I consider that a further seven months should be deducted to recognise the time Mr Buchanan has already spent in custody. Therefore, from a sentence of 11 and a half months’ home detention, this results in an end sentence of four and a half months’ home detention. I also raised with counsel the need for special conditions for home detention and post-release. Ms Davies did not object to those being imposed as set out in the PAC report.
Conclusion
[63] The appeal is allowed. I am satisfied the sentence was manifestly excessive. I set the sentence of imprisonment aside and substitute it with a sentence of four and a half months’ home detention. The orders for reparation and disqualification from holding a licence at paragraphs [33], [35] and [41] of the District Court judgment remain in place.
[64] The period of home detention is to be served at the address specified in the PAC report dated 27 September 2024.
[65] Special conditions for home detention (as set out in that PAC report) are to be imposed as follows:
1.Not to possess, consume or use any alcohol or drugs not prescribed to you.
2.Not to communicate in any way or associate with any victim of your offending, without the prior written approval of a Probation Officer.
46 Kidman v R [2011] NZCA 62, (2011) 25 CRNZ 268 at [16].
47 Horne v R, above n 41 at [30].
3.To attend an assessment for an appropriate alcohol and drug programme as directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.
4.To attend an assessment for any other programme, treatment or counselling as directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.
[66] Special conditions for post-release, on the same terms as above, are to be imposed for a period of 12 months following the end of Mr Buchanan’s sentence.
McQueen J
Solicitors:
BVA, Palmerston North for Respondent
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