Horn v Police - [2023] NZHC 2530

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-128

[2023] NZHC 2530

BETWEEN
JOSHUA THOMAS HORN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 7 September 2023

Appearances:

J D Lucas for the Appellant

C M Hallaway for the Respondent

Judgment:

8 September 2023

JUDGMENT OF HARLAND J

[1] Joshua Horn appeals against the sentence imposed by Judge A Couch on 9 June 2023.1 The grounds for his appeal are discrete and relate solely to deductions he contends ought to have been allowed as mitigating matters which, if they had, would have resulted in him being eligible for a term of home detention rather than imprisonment. Ultimately, he asks the Court to impose a sentence of home detention if it agrees.

[2] The Crown does not oppose the appeal but counsel disagree as to the extent of the deductions available. On either counsel’s assessment, if I agree with them, the end sentence is one to which home detention could apply. The Crown does not oppose an end sentence of home detention, given that this was what was recommended in the pre-sentence report.

1 Police v Horn [2023] NZDC 11833.

HORN v POLICE [2023] NZHC 2530 [8 September 2023]

[3] The key question on appeal is whether I agree with counsel, which would result in the appeal being allowed.

[4] I have decided to allow the appeal and impose a sentence of home detention on Mr Horn rather than a sentence of imprisonment. This judgment sets out my reasons for reaching that decision.

District Court judgment

[5] The appellant was charged with three charges of burglary,2 five charges of theft,3 two charges of receiving,4 two charges of unlawfully taking a motor vehicle,5 two charges of driving while suspended,6 two charges of dishonestly using a document,7 unlawfully possessing knives8 and a small quantity of methamphetamine.9

[6] The offending occurred between 27 July and 21 November 2022 when the appellant was arrested by the Police. It involved a spree of dishonesty offending over the course of several months, including the burglaries of residential properties, the unlawful taking of motor vehicles, theft of small property, being found in possession of a knife and methamphetamine, and driving while suspended. The Judge in the District Court addressed the facts in detail in his sentencing remarks at paras [2] to [10]. It is not necessary to address them further here given that no issue is taken with the starting point adopted or uplifts for the various tranches of offending, leading to an adjusted starting point of four years or 48 months’ imprisonment, bearing in mind totality.

[7] Neither is there a dispute that the Judge was correct to apply an uplift of five per cent to reflect that one of the burglaries, the two charges of unlawfully taking motor vehicles, one of the thefts and the possession of knives and methamphetamine were all committed while on bail.

2 Crimes Act 1961, s 231(1)(a); maximum penalty 10 years’ imprisonment.
3…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 2530
Decision Date: 8 September 2023

CaseChat Overview and Summary

Joshua Thomas Horn has appealed against the sentence imposed by Judge A Couch on 9 June 2023. The appellant contends that he should have been eligible for a term of home detention rather than imprisonment due to mitigating factors that were not adequately considered. The Crown does not oppose the appeal but disagrees with the appellant's counsel regarding the extent of the deductions available. The key question for the court was whether to agree with the appellant's counsel, which would result in the appeal being allowed.

The High Court allowed the appeal and imposed a sentence of home detention on Mr Horn. The court considered that the appellant's drug addiction and his previous good character were mitigating factors that should have been considered. The court allowed a 20 per cent discount for the appellant's addiction and rehabilitative efforts and a 5 per cent discount for his previous good character. The total discount of 48 per cent created an end sentence of 25 months' imprisonment. However, because this sentence comes within the realms of consideration for home detention, the court imposed a term of home detention of eight months, with conditions as they appear in the pre-sentence report dated 29 May 2023.

The appeal is granted. The appellant is sentenced to eight months' home detention.

Orders