Houghton v The King

[2025] NZHC 608

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2025-409-40

CRI-2025-409-41 [2025] NZHC 608

BETWEEN

JARROD ANTONY HOUGHTON

Appellant

AND

THE KING

Respondent

Hearing:	17 March 2025
Appearances:	K L Chalmers and H May for Appellant B W D Alexander for Respondent
Judgment:	21 March 2025

JUDGMENT OF MANDER J

This judgment was delivered by me on 21 March 2025 at 3 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date:     .

HOUGHTON v R [2025] NZHC 608 [21 March 2025]

[1]    Jarrod Houghton was sentenced in the Christchurch District Court to three years’ imprisonment by Judge Kellar1 on charges of burglary,2 unlawful possession of a firearm,3 possession of a methamphetamine pipe,4 receiving,5 and the unlawful conversion of a vehicle or other conveyance (being the unlawful taking of a bicycle).6

[2]    Mr Houghton was sentenced on 13 March 2024 and seeks leave to appeal his three-year term of imprisonment out of time.7 The appellant and respondent’s submissions and the appellant’s affidavit all state that an end sentence of three years and three months’ imprisonment was imposed. However, Judge Kellar, after referring to the time Mr Houghton had spent on electronically monitored bail (EM bail) states that “… the overall sentence… is one of three years’ imprisonment”.8

[3]    Mr Houghton brings his appeal on the basis the Judge erred in his approach to setting the starting point for his dishonesty offending; that a greater deduction should have been applied for the time he spent on EM bail and for various personal mitigating factors.

Factual background

[4]    The burglary charge arises out of Mr Houghton and an associate entering the grounds of a local boarding school in the early hours of the morning and breaking into a locked bicycle storage shed. Mr Houghton cut the lock using bolt cutters and five bikes were removed from the shed and taken to a nearby property over the course of a number of trips. Two of the bicycles have since been recovered, but the combined value of the outstanding three bicycles was approximately $8,000.

[5]    The unlawful possession of a firearm charge arises from the execution of a search warrant at Mr Houghton’s address. During the search a cutdown double-

1      R v Houghton [2024] NZDC 5693.

2      Crimes Act 1961, s 231(1)(a)—maximum sentence: 10 years’ imprisonment.

3      Arms Act 1983, s 45(1)—maximum sentence: four years’ imprisonment and/or a fine not exceeding $4,000.

4      Misuse of Drugs Act 1975, s 13(1)(a) and (3)—maximum sentence: one year of imprisonment and/or a fine not exceeding $500.

5      Crimes Act, ss 246(1) and 247(a)—maximum sentence: seven years’ imprisonment.

6      Crimes Act, s 226(1)—maximum sentence: seven years’ imprisonment.

7      R v Houghton, above n 1.

8 At [18].

barrelled shotgun containing two rounds of ammunition was located. Also found during the search was small bag that contained empty point bags and a glass pipe for smoking methamphetamine.

[6]    In respect of the unlawful taking of a bicycle receiving charge, Mr Houghton entered the Canterbury University campus at night. He found a mountain bike secured by a lock outside the library building. He cut the lock and removed the bicycle from the university grounds. The bicycle was worth $2,500.

[7]    Over the course of the same night, two other mountain bikes were stolen from a residential property. These bicycles came into Mr Houghton’s possession within hours of them being stolen, giving rise to the receiving charge. They had a combined value of $16,000.

District Court sentencing

[8]    The Judge approached his task of calculating an appropriate starting point for this offending by identifying separate cumulative starting points for the burglary and unlawful taking charges, the receiving charge, and the firearms offending.

[9]    A starting point of 18 months’ imprisonment was imposed in respect of the burglary and unlawful taking. The Judge observed the burglary entailed some degree of planning and premeditation, and noted that, while the premises did not involve someone’s home, they were still relevant, being a shed on school grounds and the University library. The Judge further noted the high value of the goods stolen, being some $26,500, and the effect the offending had on the victims.

[10]   In respect of the receiving  charge,  the  Judge  applied  a  starting  point  of 12 months’ imprisonment. A relevant aggravating factor identified was the fact that Mr Houghton had come into possession of the stolen property within hours of the burglary.

[11]   Three aggravating factors were identified in respect of the firearms offending. The firearm was loaded with a round in each chamber at the time it was found, it was within easy reach and readily available to be used, and had been unlawfully modified

with a cutdown barrel to be used solely for criminal purposes. A starting point of two years’ imprisonment was adopted for the Arms Act 1983 charge.

[12]   In recognition of totality, the overall starting point was reduced by six months to arrive at an adjusted starting point of four years’ imprisonment. In recognition of Mr Houghton’s guilty pleas, a 15 per cent reduction was applied, as was a further deduction of five per cent for rehabilitative steps that Mr Houghton had taken. The Judge noted some relevant criminal history—a burglary conviction in 2021 and a conviction for dishonesty offending in 2017—that was said to call for some “relatively modest, uplift”, although the amount was not articulated. The Judge stated that:9

The overall sentence, after making adjustments for [Mr Houghton’s] pleas of guilty, [his] relevant criminal history, the rehabilitative steps that [he has] taken, brings me back to a sentence of three years and three months’ imprisonment.

[13]   After remarking that he was not eligible for a short-term sentence of imprisonment and therefore to a substantial sentence of home detention, the Judge referred to the time Mr Houghton had spent on EM bail “without problems” and that the overall sentence would be one of three years’ imprisonment.

[14]   The overall effective sentence was imposed on the charge of burglary, with concurrent sentences of 18 months’ imprisonment applied in respect of the other charges. Mr Houghton was discharged on the possession of a utensil charge.

The appeal

[15]   Mr Houghton advanced three grounds in support of his appeal. First, it was argued that the Judge had erred in not applying a single starting point for all the dishonesty offending, rather than adding a separate cumulative starting point for the receiving charge. It was argued that a total starting point of 18 months was appropriate for all the offending, bar the Arms Act charges, after taking into account the identified aggravating features. In support of that submission, it was emphasised the offending was similar in nature, including, as it did, dishonesty offending involving stolen bicycles that had been stolen over a relatively short period of time.

9 At [17].

[16]   Second, it was argued by Mr May, on behalf of Mr Houghton, that insufficient credit had been extended for the period Mr Houghton had spent in custody (which was not mentioned by the Judge) and the 303 days he had been on remand on EM bail.

[17]   Third, it was argued that an additional discount should have been provided to Mr Houghton in recognition of personal mitigating factors, including his methamphetamine addiction.

Leave to appeal out of time and affidavit filed in support

[18]   An affidavit was filed by Mr Houghton largely in support of his application for an extension of time to appeal. The affidavit sets out why Mr Houghton’s appeal was not lodged until 5 February 2025 despite him being sentenced in March the previous year. Couching the explanation in neutral terms, there appears to have been a breakdown in communication between Mr Houghton and his former counsel who represented him in the District Court, and further difficulties were incurred with obtaining his file from his previous lawyer. Mr Houghton advises that it was only after he had been transferred to a different prison that he learnt from his new cellmate that he could initiate an appeal and apply for legal aid by obtaining the necessary forms from the prison authorities.

[19]   The affidavit  contains  some further information as to how,  at least  from  Mr Houghton’s perspective, certain information was not communicated to the District Court at his sentencing. However, to the extent the balance of the affidavit contains representations of regret and further information about his personal circumstances, those are not fresh, being matters that were traversed in the pre-sentence report. Notwithstanding that repetition, I admit the affidavit primarily for the purposes of the leave application. The Crown has acknowledged it has not suffered any prejudice from the delay, and I accept there are matters that have been raised on the appeal that are worthy of review. Leave is therefore granted to appeal out of time.

Analysis

The starting point

[20]   The Crown acknowledged the approach taken by the sentencing Judge to setting the starting point did not conform with the way it had structured its sentencing submission on the basis of a global approach to the dishonesty offending. However, it was submitted there was nothing invalid in the way the Judge had chosen to differentiate the receiving charge from the other dishonesty offending. Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.10 Whereas, concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.11

[21]   It may be open to debate as to whether the receiving offence fell into the category of being “a similar kind” to the burglary, or could be said to be part of a connected series of offences, particularly when Mr Houghton denied having been a party to the burglary of the garage from which the two expensive mountain bikes were stolen. The original charge of burglary was amended to one of receiving that property from an unknown person. Arguably, his receiving of the two mountain bikes constituted a separate incident which, beyond the temporal connection with the earlier offending, was distinct from that offending because it involved him receiving property in respect of which he had not been a party to its theft. I accept that often such offending that has occurred over a limited period be grouped together, but ultimately I do not consider anything materially turns on the point.

[22]   Importantly, on a sentence appeal the focus must be on whether the sentence imposed—for present purposes the combined starting point—was “manifestly excessive” and not justified by the relevant sentencing principles.12 The approach taken by the Judge may have been viewed as stern, but the goods stolen or received were of considerable value. The burglary and unlawful taking involved premeditation,

10     Sentencing Act 2002, s 84(1).

11     Section 84(2).

12     Ripia v R [2011] NZCA 101 at [15].

marked as it was by Mr Houghton having bolt cutters in his possession at the time of the offending. While the burglary of the boarding school’s premises is not the same as a domestic residence, the offending involved intruding onto a property at night where people were in residence. In relation to the receiving, a well-recognised aggravating feature is where the stolen goods have been obtained by the offender within a short period of their theft.

[23]   The combined effect of the two separate starting points to which objection is taken on the appeal in combination with the two-year starting point for the firearms offending (in respect of which no issue was raised) may have been open to challenge but for the Judge making a six-month adjustment for totality. Having made that deduction, I do not consider the overall four-year starting point resulted in a total period of imprisonment that was wholly out of proportion to the gravity of the overall offending.13 There are no tariff cases for dwelling house burglaries at the minor end of the scale, which can range between a year and two and a half years’ imprisonment.14 Similarly, various considerations, including the value of the goods, the existence of a commercial element, and the closeness of the relationship between the burglar and the receiver, will be relevant.15 Sentences of 18 months and two years and six months have been upheld for receiving property of similar value to the worth of the two mountain bikes.16

Time spent on EM bail

[24]   A sentencing court is required to take into account the time an offender has spent on bail with an electronic monitoring condition.17 It was acknowledged there is no arithmetical formula that is capable of universal application for calculating a deduction in the sentence imposed for time spent on EM bail. Time spent on EM bail is not equivalent to pre-sentence custodial remand.18 Discounts in the range of

13     Sentencing Act, s 85(2).

14     See Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78]; and Nelson v Police [2019] NZHC 2434 at [33].

15     Matangi v Police [2018] NZHC 1479 at [42], citing Allen v Police HC Christchurch CRI-2009- 409-113, 3 September 2009 at [22].

16     Drake v Police [2015] NZHC 2252 at [14]–[15], citing R v Collier CA170/03, 21 August 2003 and Sinclair v Police [2014] NZHC 1332.

17     Sentencing Act, s 9(2)(h).

18     A(CA90/2017) v R [2017] NZCA 278 at [90].

between 30 and 50 per cent are often provided, but it will be the circumstances rather than just arithmetic which will ordinarily guide the sentencing court.19

[25]   Reliance was placed on a recent sentencing decision of this Court, where the offender had spent 36 days in custody and 483 days on EM bail, that had resulted in a six month credit being viewed as appropriate having regard to the restrictive conditions to which the appellant had been subject.20 Mr May submitted that a similar approach should have been adopted in the present case and a six-month credit extended to Mr Houghton.

[26]   The Crown, while emphasising there is no mandatory arithmetical formula that must be applied, acknowledged that the three-month deduction for the time spent on EM bail was towards the lower end of the range. I have had the opportunity to peruse Mr Houghton’s EM bail bond which, in addition to the normal absences authorised as part of standard EM bail conditions, allowed him to engage in an hour’s exercise daily while in the company of a named person upon prior arrangement with the Department of Corrections, to attend approved employment related activities and to attend approved activities relating to the care of his children.

[27]   In relation to the former dispensation, it is apparent that Mr Houghton, to his credit, did engage in paid employment during the period he was on EM bail. At the time of the preparation of the pre-sentence report shortly before his sentencing, it was reported that Mr Houghton was currently working 20–30 hours for a painting company, depending on their need, and typically worked between 7.30–8.00 am and

4.30 pm, Monday to Friday, although this appears to have been a relatively recent development prior to sentencing. While Mr Houghton described his record on EM bail as “perfect”, I note there was one recorded breach of his bail in June 2025, that he accepted, relating to his residential conditions.

[28]   I consider greater credit could have been extended to Mr Houghton for the time he has spent on EM bail. However, whether any adjustment is required to be made will need to depend on the overall assessment of the merits of the appeal having regard

19     Paora v R [2021] NZCA 559 at [46] and [53].

20     Fraser v R [2024] NZHC 2638.

to the final sentence imposed. In the absence of a sentence of home detention being substituted as a result of the appeal, Mr Houghton will of course retain the benefit of the time he has spent on pre-sentence custodial remand in terms of calculating his release date.21

Discount for personal mitigating factors

[29]   As noted earlier, parts of Mr Houghton’s affidavit raised matters of personal mitigation that had already been reviewed in the pre-sentence report. This was responsibly acknowledged by Ms Chalmers, who prepared the written submissions on behalf of Mr Houghton. The point, however, was that these were factors that should have been taken into account by the sentencing Court as matters of mitigation, or resulted in a greater discount.

[30]   No alcohol and drug report had been arranged for sentencing. However, there was no dispute some linkage existed between Mr Houghton’s methamphetamine habit, which was referred to in the pre-sentence report, and his offending. The Judge noted Mr Houghton’s use of methamphetamine was a factor that had contributed to his offending and he explicitly referred to Mr Houghton’s statement to the pre-sentence report writer that the stolen bicycles “were passed on for drugs”.22

[31]   It was submitted this connection should have been taken into account by way of a discrete discount. However, Mr Houghton’s use of methamphetamine has to be taken into account, along with other factors that bear on his offending behaviour, including his own appreciation that, notwithstanding a good upbringing, he gravitated to an antisocial lifestyle which he found “fun at the time”, his choice of associates and his attitude of entitlement which were considered to be strong drivers of his offending.

[32]   A further submission was made in support of this ground of appeal that was critical of there having been no referral of Mr Houghton to restorative justice. However, his representation that he would “definitely apologise” for his behaviour were he to have the opportunity was recorded in the pre-sentence report.  That the

21     Parole Act 2002, s 90(1).

22 At [15].

Judge did not mention that regret is perhaps not surprising when regard is had to the belated timing of his pleas and the influence that may have on the question of genuine remorse.

[33]   It was emphasised on the appeal that Mr Houghton had made considerable progress while on EM bail. During that time he had engaged in constructive work, which was confirmed by his employer. He had also been subject to random drug testing as part of that employment and remained drug-free for an extended period, notwithstanding the lack of any formal interventions. However, the Judge did explicitly  take  into  account  these  positive  rehabilitative  steps  in  applying  a  five per cent discount.

[34]   Finally, it was argued the Judge had inappropriately summarily dismissed the possibility of reparation. Despite the criticism of Mr Houghton’s previous counsel in not enquiring further into this possibility or raising this issue with the Court, I do not consider the Judge’s assessment was unrealistic given the information before him. The pre-sentence report records that Mr Houghton had no savings and had not nominated an amount that he would be willing to pay on a weekly basis. No further information was furnished on the appeal as to what Mr Houghton could afford or realistically manage to pay (if anything). As matters presently stand, he has been a serving prisoner for almost a year, he has two children to support, and it is doubtful whether requiring him at this stage to make reparation would be a constructive step in terms of his prospective rehabilitation. It is not at all clear, indeed, it seems unlikely having regard to the sentence Mr Houghton was facing, that even had the issue of reparation been formally engaged with, this would have resulted in any different response from the Court. No proposal was put forward in support of this part of the appeal.

[35]   Having assessed all these matters, I am not convinced that, when assessed either individually or collectively, they would, or should, have resulted in any further credit beyond that which was afforded to Mr Houghton. A close reading of the Judge’s sentencing remarks refers to Mr Houghton’s previous conviction for burglary and another conviction for dishonesty offending, which the Judge initially remarked called for some modest uplift. It is not apparent any such uplift was applied—at least not explicitly.

[36]   As noted earlier, the Judge, in coming to an overall sentence (prior to the deduction for time spent on EM bail), referenced Mr Houghton’s relevant criminal history as part of the adjustments he had made in reaching, at that stage, a sentence of three years and  three  months’  imprisonment.  The  net  deductions  amounted  to 20 per cent for his guilty pleas and rehabilitative steps. Given that outcome, any uplift for Mr Houghton’s limited history would appear to have been offset by other considerations of personal mitigation.

[37]   Returning to the issue of credit for time spent on EM bail, which at the time of his sentencing amounted to 10 months, a further two months could have been afforded to Mr Houghton in accordance with the “rule of thumb” which is often applied but is by no means mandatory. Against that, however, there was the one breach and, moreover, the latitude he was afforded to enable him to take up employment initiatives which, together with the opportunity to access regular exercise, meant the terms of his EM bail were not as onerous as they might otherwise have been. Those observations aside, the fact is that any reduction of two months would be mere tinkering. Moreover, in the context of a sentence of three years’ imprisonment, a difference of two months tends to confirm the ultimate sentence imposed was within the range available to the sentencing Judge, rather than indicate it was manifestly excessive.

Result

[38]The appeal is dismissed.

Solicitors:
Crown Solicitor, Christchurch

Copy to:
K L Chalmers – Barrister, Christchurch