Louden v Police
[2022] NZHC 2817
•31 October 2022
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2022-419-64
[2022] NZHC 2817
BETWEEN LISA LOUDEN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 25 October 2022 Appearances:
G Edge for the Appellant
B Harris for the Respondent
Judgment:
31 October 2022
JUDGMENT OF GAULT J
This judgment was delivered by me on 31 October 2022 at 2:00 pm.
Registrar/Deputy Registrar
……………………………………
Solicitors:
Ms G Edge, Bean Law Ltd, Hamilton
Mr B Harris, Hamilton Legal, Office of the Crown Solicitor, Hamilton
LOUDEN v POLICE [2022] NZHC 2817 [31 October 2022]
[1] Ms Louden appeals against a sentence of 10 months’ imprisonment imposed by Judge T R Ingram at the Thames District Court on 22 August 2022,1 following convictions for the following:
(a)breach of home detention;2
(b)possessing an offensive weapon (x2);3
(c)procuring or possessing a cannabis plant;4
(d)possessing pipe or utensil for cannabis;5
(e)procuring or possessing methamphetamine and amphetamine;6 and
(f)possessing/using utensils methamphetamine or amphetamine.7
Facts
[2] On 17 June 2022 at about 8:30am, while serving a sentence of home detention with conditions not to possess or consume any drugs not prescribed, Ms Louden called the police to report that her mother was being kidnapped by an unknown assailant armed with a firearm. The police responded and Ms Louden came outside onto the footpath. She made allegations of kidnapping and communicated her suspicions of being ‘watched by cameras’. The police detained Ms Louden for mental health assessment.
[3] The police searched her bag and discovered a zip lock bag with a significant amount of cannabis. Consequently, the police placed Ms Louden under arrest and completed a search of her belongings and uncovered:
1 Police v Louden [2022] NZDC 17855; and Criminal Procedure Act 2011, s 244.
2 Sentencing Act 2002, s 80S.
3 Crimes Act 1961, s 202A(4)(a).
4 Misuse of Drugs Act 1975, s 7(1)(a) and (2).
5 Section 13(1)(a) and 13(3).
6 Section 7(1)(a) and (2).
7 Section 13(1)(a) and 13(3).
(a)approximately eight grams of cannabis;
(b)approximately 1.8 grams of methamphetamine;
(c)a glass meth pipe;
(d)a cannabis pipe;
(e)knuckle dusters; and
(f)a small knife.
[4] When Ms Louden was asked about the items, she told police that they all belonged to her.
District Court decision
[5] Judge Ingram referred to the charges and Ms Louden’s history of drug problems. The Judge said that Ms Louden had three months remaining on her sentence of home detention and therefore a sentence of six months’ imprisonment would be justified to deal with the portion of the sentence she had not served. The Judge said the drug and weapon offences on a standalone basis would attract a sentence of nine months’ imprisonment. An uplift for the time unserved would take the sentence to 15 months’ imprisonment.
[6] The Judge allowed a 25 per cent discount, said to be three months, for Ms Louden’s guilty plea and two months for her addiction. This led to an end sentence of 10 months’ imprisonment.8 Leave to apply for substitution of sentence was declined.
8 In respect of the individual offences, Ms Louden was sentenced to 10 months’ imprisonment for the breach of home detention and possession of offensive weapons; one month for possession of methamphetamine and cannabis; one month for possession of utensils methamphetamine; and destruction orders were made for the weapons, drugs and utensils. All sentences were to be served concurrently.
Approach on appeal
[7] In order to succeed on a first appeal against sentence, the appellant must satisfy the appeal court that there has been an error in the imposition of the sentence and that a different sentence should be imposed.9 The appeal court will intervene if the sentence is manifestly excessive or wrong in principle.10 It will not ordinarily intervene where the sentence is within the range that can be properly justified by accepted sentencing principles. The appeal court’s focus is on the final sentence imposed rather than the process by which the sentence was reached.
Grounds of appeal
[8] Ms Edge, for Ms Louden, submitted that the Judge erred by not allowing a discount for remorse. She submitted the pre-sentence report and the letter written by Ms Louden evidence her remorse about her offending. She submitted a five per cent discount for remorse should be allowed.
[9] Secondly, Ms Edge submitted the Judge erred by not allowing a distinct discount for mental health and other personal factors that led to the offending. She submitted that Ms Louden was suffering from paranoia induced by her drug addiction and mouldy tobacco. A five per cent discount for mental health and other personal factors should be allowed.
[10] Finally, Mr Edge submitted that the Judge erred by declining her application for home detention. She submitted that Ms Louden has demonstrated through the pre-sentence report a capacity to comply with a sentence of home detention.
Discussion
Discounts
[11] In relation to the further discounts sought, Ms Edge acknowledged they are small and may only amount to small adjustments. She essentially seeks an additional 10 per cent, that is only one and a half to two months.
9 Criminal Procedure Act, ss 244, 250(2) and (3).
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
[12] I accept that the pre-sentence report indicates that Ms Louden expressed remorse. I also have read the letter she wrote to the Judge and I note her remorse at her relapse. I also accept that she tried to manage her concerns and communicate with the authorities while on home detention. As Mr Harris for the respondent acknowledged, Ms Louden may have been entitled to a modest discount. But a discrete discount for remorse requires tangible evidence.11
[13] I also accept, albeit in the absence of expert evidence, that Ms Louden appears to have had mental health as well as addiction issues. They may be interrelated. The two month discount she received for addiction was 13.3 per cent. I accept a higher discount could have been given for the combination of addiction and mental health, but in the absence of independent evidence I do not consider the discount given was inadequate.
[14] I also note that the guilty plea discount of three months was only 20 per cent, not 25 per cent as proposed. Even so, a total discount of 45 per cent would only have reduced the sentence by two months. In circumstances where the starting point could have been higher than 15 months’ imprisonment, I do not consider that the end sentence of 10 months’ imprisonment was manifestly excessive. It was well within the range available to the Judge.
Home detention
[15] The remaining issue is whether the Judge was wrong to decline leave to apply for substitution of a sentence of home detention.12 Ms Edge acknowledged the practical issue that Ms Louden’s end sentence date is 15 November 2022, leaving very little time to find an address and have it approved. I deal with this ground nevertheless.
[16] The Judge did not give reasons for declining leave to apply for substitution of a sentence of home detention. However, as Mr Harris submitted, the Judge was entitled to decline leave. Although the pre-sentence report assessed Ms Louden’s ability to comply as high, she breached her home detention sentence for reasons
11 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [24].
12 Sentencing Act 2002, s 80I.
apparently relating to her drug issues. Given that sentence breach and her statements to the pre-sentence report writer, I agree that another sentence of home detention would not have been appropriate even if a suitable residence had been available. Ms Louden stated to the pre-sentence report writer that leaving Thames was in her best interests, and that being sentenced to an electronically monitored sentence in Thames would be counterproductive. She also stated that she did not wish to return to a rehabilitation service such as the Grace Foundation. Indeed, it appears that Ms Louden herself declined to pursue electronic monitoring as a sentencing alternative to imprisonment.
Result
[17]The appeal is dismissed.
Gault J
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