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Horne v The King

Horne v The King

Case [2023] NZHC 2860 12 October 2023

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2023-485-062

[2023] NZHC 2860

BETWEEN
LINCOLN HORNE

Appellant

AND

THE KING

Respondent

Hearing: 11 October 2023

Appearances:

N L Donaldson for Appellant J G Avia for Respondent

Judgment:

12 October 2023

JUDGMENT OF GRICE J

(Sentence appeal)

Introduction

[1] Mr Lincoln Horne appeals the decision of Judge Mika on 21 August 2023 sentencing him to four months’ home detention on the following charges:

(a)possession of a methamphetamine pipe;1

(b)unlawful possession of a firearm;2

(c)unlawful possession of ammunition;3

1      Misuse of Drugs Act 1975, ss 13(1)(a) and (3) (maximum penalty of one year’s imprisonment or a fine not exceeding $500 or both).
2      Arms Act 1983, s 45(1) (maximum penalty of four years’ imprisonment or a fine not exceeding
$5,000 or both).
3      Arms Act, s 51 (maximum penalty of three years’ imprisonment or a fine not exceeding $4,000 or both).

HORNE v R [2023] NZHC 2860 [12 October 2023]

(d)possession of cannabis (two charges);4

(e)possession of methamphetamine;5

(f)shoplifting;6

(g)wilful damage;7

(h)possession of an offensive weapon;8 and

(i)possession of a knife.9

[2] By the time of his sentencing, Mr Horne had spent seven weeks in custody on remand. Mr Horne’s sole ground of appeal is that the credit given for time spent in custody was applied at the incorrect point of the sentencing exercise, resulting in an end sentence that was manifestly excessive.

Factual background

[3]Mr Horne’s charges arise out of a few tranches of offending.

October 2021 charge

[4] This incident gave rise to the possession of a knife charge only. At approximately 1:51 am on 7 October 2021, Mr Horne was stopped at a routine vehicle stop. Mr Horne was then arrested for another matter and when he was taken out of the car a metal object was seen wedged between the driver’s seat and the door. A warrantless search was executed, and a large butcher’s knife was found.

4      Misuse of Drugs Act, s 7(1)(a) and (2) (maximum penalty of three months’ imprisonment or a fine not exceeding $500 or both).
5      Misuse of Drugs Act, s 7(1)(a) and (2) (maximum penalty of six months’ imprisonment or a fine not exceeding $1,000 or both).
6      Crimes Act 1961, ss 219 and 223(d) (maximum penalty of three months’ imprisonment).
7      Summary Offences Act 1981, s 11(1)(a) (maximum penalty of three months’ imprisonment or a fine not exceeding $2,000).
8      Crimes Act, s 202A(4)(a) (maximum penalty of three years’ imprisonment).
9      Summary Offences Act, s 13A (maximum penalty of three months’ imprisonment or a fine not exceeding $2,000).

May 2022 charges

[5] This tranche relates to the wilful damage and possession of an offensive weapon charges. The victim is Mr Horne’s ex-partner of six years, the pair separated about three years ago but have two children together aged six and eight years old. There have been approximately 16 previous family harm incidents recorded in regard to Mr Horne and the victim.

[6]…

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.

Continue reading Horne v The King

Details

AGLC: Horne v The King [2023] NZHC 2860
Case: [2023] NZHC 2860
Decision Date: 12 October 2023

CaseChat Overview and Summary

Lincoln Horne appeals the sentence imposed by Judge Mika, who sentenced him to four months’ home detention for various charges, including possession of a methamphetamine pipe, unlawful possession of a firearm, unlawful possession of ammunition, possession of cannabis, possession of methamphetamine, shoplifting, wilful damage, possession of an offensive weapon, and possession of a knife. Horne argues that the credit for time spent in custody was applied incorrectly, resulting in a sentence that is manifestly excessive. The High Court was required to determine whether the error in calculating the sentence was significant enough to warrant a different sentence.

The Court found that there was an error in the sentencing process, as Judge Mika should have accounted for the time Horne spent in custody after commuting the sentence to home detention, rather than before. The Court held that the approach in Longman v Police, which advocates for considering credit for time spent on remand only after deciding on a sentence of home detention, is preferable. The Court also noted that the discount for time spent in custody on remand is an evaluative decision for the judge, and a ‘one for one’ approach is generally fairest. However, the Court concluded that despite the error, the sentence of four months’ home detention was not manifestly excessive, and the appeal was dismissed. The Court found that the sentence was within the appropriate range for the nature and circumstances of the offences committed.

The Court dismissed the appeal and upheld the sentence imposed by Judge Mika.

Orders