MacDonald v Police
[2024] NZHC 3106
•24 October 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-210
[2024] NZHC 3106
BETWEEN SIMON JOSEPH MACDONALD
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 17 October 2024 Appearances:
H C Coutts for the Appellant
G J Barrett and P J Brand for the Respondent
Judgment:
24 October 2024
JUDGMENT OF HARLAND J
Introduction
[1] Simon MacDonald appeals against the sentence of 22 and a half months’ imprisonment imposed on him in the District Court at Christchurch on 5 July 20241 in respect of charges of cultivating cannabis,2 unlawful possession of a prohibited firearm3 and breaching a protection order.4 He submits that the Judge erred in declining to convert that sentence to home detention, which he contends was the least restrictive sentence available and, in all the circumstances, the appropriate sentencing response. However, as the proposed address for home detention was assessed as technically unsuitable, the best that the appellant can achieve on appeal is for leave to
1 Police v MacDonald [2024] NZDC 15655.
2 Misuse of Drugs Act 1975, s 9; maximum penalty seven years’ imprisonment.
3 Arms Act 1983, s 50A; maximum penalty five years’ imprisonment.
4 Family Violence Act 2018, ss 98(1)(a) and 112(1)(b); maximum penalty three years’ imprisonment.
MACDONALD v POLICE [2024] NZHC 3106 [24 October 2024]
be granted for him to subsequently apply for home detention if he finds another address.
[2]The appeal is opposed by the Crown.
The offending
[3] On 1 August 2012, a protection order was issued in the Christchurch District Court against the appellant, his former partner being the applicant.
[4] At about 5.30 pm on 15 February 2024, the Police were called to the appellant’s former partner’s address after neighbours reported a heated argument between the appellant and his former partner. When the Police arrived, the appellant was not present, but his former partner allowed the Police inside the property. With the former partner’s consent, the property was searched.
[5] In the garage, the Police located a small tent containing five healthy cannabis plants, each approximately 80 cm in height. The plants were in pots with an irrigation system, fertiliser and a heat source found nearby. In the ceiling of the garage, 31 cannabis seedlings were located together with a water source and heating. Also located in the ceiling was an air rifle.
[6] On the backseat of a vehicle in the garage, in plain sight, the Police located a Ruger Mini 14 semi-automatic rifle which is a prohibited weapon under the Arms Act 1983. In a photograph depicting this rifle, it appears lying across almost the entire length of the back seat. There were also several rounds of ammunition found in the vehicle that could be used in the rifle.
[7] When the appellant was asked about the items found, he said he was given the Ruger by a friend, and he was going to make it inoperable and turn it into an ornament. He said he had grown the cannabis because he has a drug problem.
Decision under appeal
[8] Although the Judge identified the lead charge in terms of maximum penalty as the cultivation of cannabis, in terms of culpability, he considered the unlawful possession of the prohibited firearm to be more serious. Undoubtedly, this was correct, because the Judge observed the circumstances under which the legislation making semi-automatic weapons a prohibited firearm came into effect followed the tragedy at the Christchurch Mosque where such weapons were used to kill many people.
[9] The Judge described the gravity of the offending as serious. He referred to the prohibited firearm being unsecured and not disabled. He noted that the ammunition was immediately adjacent to the weapon, which meant it could have been used at very short notice. Equally, he observed that the firearm and ammunition could easily have been stolen and used for deadly purposes, although he did not suggest that the appellant would have done such a thing.
[10] In setting the starting point for the firearms charge, the Judge referred to the submissions of counsel, which he described as very helpful, and two decisions of the High Court, Manapori v Police and Tangi v Police.5 He noted that, in Manapori, a starting point of 30 months’ imprisonment on two charges of possession of prohibited firearms, one charge of possession of ammunition, a charge of cultivation of cannabis and another of supplying cannabis had been upheld. In Tangi, he noted that a starting point of three years’ imprisonment had been adopted for one charge of possession of a loaded semi-automatic firearm and 40 rounds of ammunition. The Judge observed that these charges had been laid under s 45(1) of the Arms Act 1983, carrying a slightly lower maximum penalty (four years’ imprisonment or a fine of $5,000) than the charge with which he was concerned.
[11] In relation to the gravity of the cannabis offending, the Judge noted that the growing environment used was relatively sophisticated and he referred to the number of plants found by the Police.
5 Manapori v Police [2020] NZHC 627; Tangi v Police [2023] NZHC 1997.
[12] With reference to the combination of the prohibited firearm and the cannabis plants, the Judge placed particular weight on the Manapori decision where that appellant had a history of drug offending and had previously been sentenced to home detention for cannabis-related offending. The Judge considered the circumstances of the offending and offender in Manapori were similar to the appellant’s offending and situation, noting that the appellant had been sentenced to home detention for cultivating cannabis in 2014 and again in 2016, and that in 2016 he had also been convicted of unlawfully possessing 48 rounds of ammunition.
[13] In relation to the charge of breaching the protection order by possessing firearms (the air rifle and the prohibited weapon), the Judge noted this was a further aggravating factor.
[14] The Judge adopted a starting point of two years and four months’ imprisonment, taking into account the totality of the appellant’s offending. He uplifted that starting point by five per cent to take into account the appellant’s previous convictions for drugs and his earlier convictions for unlawfully possessing a firearm and breaching a protection order. He adopted a 25 per cent discount to reflect the appellant’s early guilty pleas, resulting in an end sentence of 22 and a half months’ imprisonment.
[15]In relation to this, the Judge said:
[14] That leads me to an end point of 22 and a half months imprisonment. As that would be a sentence of short duration, I must consider whether any less restrictive sentence would be appropriate. The need for a strongly deterrent sentence as indicated by the High Court would favour a sentence of imprisonment and nothing less restrictive. So would the fact that you have previously been sentenced to home detention for both unlawful possession of ammunition and cultivation of cannabis but this has not deterred you from offending in a similar way again. That is significant.
[15] In 2014, you were sentenced to 12 months home detention and avoided imprisonment by the smallest of margins. I have looked at Judge Garland’s notes on sentencing from that occasion. He had concluded that a sentence of two years and three months imprisonment was appropriate as an end point and it was only after he stood the matter down and reparation was paid at the last minute, that he reduced it to two years imprisonment and then to 12 months home detention.
[16] I note that Judge Strettell in 2016 said that he would not sentence you to imprisonment because the only person harmed by your offending was you. That was in relation to the cannabis offending. Now you have not only offended again by cultivating cannabis but have also offended more seriously in relation to the prohibited weapon.
[17] You say that you are motivated to change but that is exactly what you said to Judge Strettell in 2016 and what he recorded in his notes on sentencing you then. Here we are again in 2024 with no real change. I accept that you have been deeply affected by the fatal crash you were involved in six years ago but that can only be seen as one factor in your decision making. It may have increased your desire to use cannabis and be a contributing factor in the cultivation charge but it can have nothing to do with the more serious Arms Act charge. The only factor which influences me favourably in relation to the Arms Act charge is that there is no evidence that you, personally were likely to use the rifle for illegal purposes. Rather, you were grossly negligent in retaining the rifle when the law changed and then failing to secure it or store it separate from ammunition. Other factors I do take into account are your relationship with your children and the fact that you have had stable and productive employment in recent months.
[18] Weighing all of these factors in the balance, I am unable to conclude that any sentence less restrictive than imprisonment would achieve the purposes of the Sentencing Act 2002 in your case. On the charge of possession of a prohibited firearm, therefore, you will be sentenced to imprisonment for one year, 10 months and 14 days. On the charge of cultivation of cannabis, the sentence will be 10 months imprisonment. On the breach of protection order, the sentence will be three months imprisonment.
The appeal
[16] Appeals against sentence are allowed by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal will be successful if this Court is satisfied there has been an error in the imposition of the sentence.6 This Court will not intervene if the sentence imposed is within the available range and is one that can properly be justified on the application of relevant sentencing principles.7 When assessing whether the sentence being appealed is “manifestly excessive” the focus is on whether the sentence imposed is within range, rather than the process by which that sentence was reached.8
[17] A decision to commute a sentence to home detention involves the exercise of a discretion. In exercising the discretion, the Judge must identify which sentence is
6 Criminal Procedure Act 2011, s 250(2) and (3).
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; Ripia v R [2011] NZCA 101 at [15].
8 Islam v R [2020] NZCA 140 at [32]; and Bowring v Police [2021] NZCA 325 at [12].
the least restrictive to impose and take into account the purposes and principles of sentencing,9 but there is no presumption that either a sentence of imprisonment or home detention will be preferred.10
[18] The Court of Appeal, in James v R, identified the approach on appeal against refusal to grant home detention as follows:11
[17] We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether Judge Tuohy erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong? Ms Guy Kidd for the Crown properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree. We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.
[19]In R v D, the Court of Appeal held:12
[66] In a case like this, the sentencing Judge is required to form a judgment on whether imprisonment is necessary or home detention can respond adequately to the seriousness of the offending. The closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other. In such cases, the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight. He or she will be in a much better position than an appellate Court to determine which type of offending falls on one side of the line or another.
[20]The specific grounds of appeal are that:
(a) the Judge erred in failing to convert the sentence to home detention, which was the least restrictive sentence available in the circumstances of the case;
(b) in particular, the Judge failed to take into account the appellant’s mental health, his responsibility to his children and the public interest in keeping him in employment;
9 Brittan v Police [2017] NZHC 2410, [2018] 2 NZLR 147, (2017) 28 CRNZ 619; Goodwin v Police
[2021] NZHC 1526.
10 Manikpersadh v R [2011] NZCA 452.
11 James v R [2010] NZCA 206.
12 R(CA253/2008) v D [2008] NZCA 254 at [66].
(c) the Judge did not give consideration to the desirability of keeping offenders in the community as far as practicable, consonant with the safety of the community;
(d) the Judge prioritised denunciation and deterrence over the appellant’s rehabilitative prospects and considered the particular need to denounce and deter his conduct could only be met by a sentence of imprisonment;
(e) in reaching that conclusion, it seems his preference for imprisonment was driven primarily by the fact of the appellant’s previous sentences of home detention for similar offending notwithstanding their age;
(f) the Judge placed little weight on the PAC report writer’s assessment of rehabilitative prospects and the fact that, in the intervening period since his last offending, he was struggling with his mental health following the impact a double fatality vehicle crash he was involved in continues to impact on his life; and
(g) these errors resulted in a manifestly excessive sentence.
[21] The respondent submitted the Judge did not err in his discretion not to impose home detention. Ms Barrett submitted that the Judge’s assessment of the offending and the end sentence was appropriate in all the circumstances, particularly because the sentence reflects the need for denunciation and deterrence in cases involving firearms. She highlighted that the proposed home detention address had been assessed as unsuitable for technical reasons.
[22] I was referred to other cases dealing with various scenarios and charges, where the choice for the sentencing Court was one of imprisonment or home detention.13 Ultimately, I must decide whether home detention was the correct sentencing response in the case. If it was, then the appeal should be allowed but the outcome varied only to the extent that leave is granted to the appellant to subsequently apply for home detention if a suitable address becomes available for him.
13 Leota v Police [2023] NZHC 916; Kinita v R [2020] NZHC 1008; Paerau v Police [2020] NZHC 547; Mikaeara v Police [2019] NZHC 2724; Tanoa v Police [2017] NZHC 2836; R v Richardson CA450/02, 25 March 2003; Manapori v Police, above n 5.
Discussion
[23] Although there is no suggestion the cannabis was commercially grown, an inference could readily have been available, given the number of plants, that it was. I note however that no charges alleging possession for supply were laid and the Judge accepted that there was no suggestion of any commercial motive (a generous conclusion).14
[24] However, the Judge correctly stressed the seriousness of the firearm charge, given that it carries a maximum penalty of five years’ imprisonment. The firearm was not secured but it was unloaded and within a car in the garage. It was completely visible on the backseat of the car with ammunition next to it. The starting point of two years and four months’ imprisonment, a starting point that also recognised the protection order breach, is unimpeachable.
[25] No issue could be taken with the uplifts15 and the Judge was careful to distinguish between the two cannabis offences that influenced the starting point and separate historical drug and firearm offences that justified a five per cent stage two uplift.
[26] In terms of credit available, apart from the appellant’s guilty pleas, the Judge considered the car accident involving the appellant, in which two people died, six years ago but he determined that the fact the appellant had been deeply affected by this was only one factor in his decision making. The Judge accepted the accident may have increased the appellant’s desire to use cannabis, which would be a contributing factor to the cultivation charge, but he determined that it had nothing to do with the more serious Arms Act charge. In relation to this, he said:
[17] … The only factor which influences me favourably in relation to the Arms Act charge is that there is no evidence that you, personally were likely to use the rifle for illegal purposes. Rather, you were grossly negligent in retaining the rifle when the law changed and then failing to secure it or store it separate from ammunition. Other factors I do take into account are your relationship with your children and the fact that you have had stable and productive employment in recent months.
14 R v Terewi [1999] 3 NZLR 62 (CA) at [4].
15 Jones v R [2021] NZCA 402 at [33].
[18] Weighing all of these factors in the balance, I am unable to conclude that any sentence less restrictive than imprisonment would achieve the purposes of the Sentencing Act 2002 in your case. On the charge of possession of a prohibited firearm, therefore, you will be sentenced to imprisonment for one year, 10 months and 14 days. On the charge of cultivation of cannabis, the sentence will be 10 months imprisonment. On the breach of protection order, the sentence will be three months imprisonment.
[27] Further consideration of the appellant’s personal circumstances is warranted, in particular his previous convictions.
[28] The appellant’s offending record goes back to 1997. His first conviction for drug-related offending was in June 1997 where he was sentenced to four months’ periodic detention (for possession of a cannabis pipe) together with other dishonesty offences. There was then a conviction in June 1999 for possession of cannabis, for which he was sentenced to imprisonment for 14 days. Other convictions for possession of cannabis and possession of a cannabis pipe followed in June 2000, resulting in a further sentence of two months’ imprisonment (with leave to apply for home detention), with further convictions in December 2005 (supervision of nine months was imposed), possession of cannabis in May 2008 (convicted and discharged), cultivation of cannabis in May 2014 (home detention of one year and community work for 200 hrs), cultivation of cannabis in August 2016 (home detention for six months), possession of a cannabis pipe and possession of cannabis plant.
[29] For the convictions in August 2016 for cannabis-related offending, the appellant was also sentenced to six months’ home detention for unlawfully possessing a restricted weapon. This conviction is the only conviction the appellant has for offending against the Arms Act 1983.
[30] As Ms Coutts submitted, the sentences of home detention were imposed for offending that occurred ten years ago and there has been the car accident since then, the effect of which the appellant contends has contributed to his increased and recent reliance on cannabis.
[31] But as well as the appellant’s previous conviction list, the Judge had before him a Provision of Advice of Courts (PAC) report. In relation to the offending, the appellant stated that he was “definitely remorseful” referring to his age (44) and that
he “should be doing better”. The PAC report noted the appellant’s ongoing drug problems and the significant impact the car accident that the appellant was involved in six years ago has had on his life and the decisions he has made. There is reference to cannabis being used to self-medicate and what is noted to be the appellant’s perception that he has suffered from depression, suicidal thoughts and sleeping problems following the crash. However, despite this, the appellant declined to accept help for his mental issues at the time of the PAC report interview. It was noted that, in time, he might be open to the idea. This approach by the appellant does not assist him to achieve the outcome he seeks on appeal.
[32] The appellant said he had had the firearm for approximately nine years, having inherited it from a close friend when they died, and that he had just got it out of storage to assess how to decommission it and render it inoperable. He said he “no bad intentions”.
[33] The PAC report writer noted that, despite the appellant’s 24 year criminal history, he had completed little in the way of addressing his rehabilitative needs. It was noted that he was willing to attend any programme, counselling or intervention that was assessed to be suitable for him. The address proposed for an electronically monitored (EM) sentence was his father’s address, which was not feasibly suitable due to its rural setting.
[34] The recommendation in the PAC report was for a sentence of intensive supervision and community detention but the option of imprisonment with release conditions was also included as a possible sentencing outcome.
[35] Ms Coutts submitted that the Judge ignored the significant gap between offending and a very significant change in personal circumstances, namely the double fatality crash the appellant was (faultlessly) involved in. Ms Coutts also submitted that the Judge ignored the PAC report and failed to explain why he went against its recommendation. Ms Coutts pointed to the appellant’s depression and sleeping issues as the motivation for his cannabis cultivation and the fact that he has since seen a doctor to obtain cannabis legally. She also noted that he is not interested in hunting or killing anything, and that the firearm was inherited from a close friend who had passed
away, with the appellant taking it out of storage with the intention of rendering it inoperable and using it as a display item.
[36] Ms Coutts referred to the appellant’s four children, his supportive parents and his status as an employed welder as further factors in favour of a community sentence. She noted the appellant has overcome methamphetamine and cigarette dependencies and has self-referred to the Cannabis Clinic. She also highlighted the appellant’s difficulties with his mental health, worsened by his family difficulties, the car crash and the breakdown of his relationship. Ms Coutts submitted that the Judge did not refer to the appellant’s four children and ought to have at least assessed how the appellant’s parenting obligations may be relevant to the end sentence the Judge decided to impose.16
[37] Finally, Ms Coutts noted the following summary of principles in relation to home detention sentencing:17
(a) Imprisonment is a measure of last resort.
(b) A sentence of home detention is a severe sentence, second only to a sentence of imprisonment in the hierarchy of offences in s 10A of the Sentencing Act.
(c) When considering the imposition of a sentence of imprisonment, the Court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.
(d) When a Court is considering sentencing for the purposes of deterrence, accountability and denunciation, amongst other purposes, it must not impose a sentence of imprisonment unless it is satisfied that those purposes cannot be achieved by a sentence other than imprisonment and no other sentence would be consistent with the application of the principles in s 8 of the Act.
(e) A sentence of home detention carries with it in considerable measure the principles of deterrence and denunciation.
(f) It is an error of law if the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentencing.
16 Phillip v R [2022] NZSC 149, [2022] 1 NZLR 571.
17 Brittin v Police, above n 9, at [55]; This summary is taken in large measure from Fairbrother v R
[2013] NZCA 340 at [23]–[29].
(g) One of the purposes of sentencing is to assist in the offender's rehabilitation.
(h) The judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.
(footnotes omitted)
[38] Ms Barrett for the Crown referred to the Judge’s acknowledgement of the appellant’s vehicle accident, his relationship with his children and his employment status.18 He referred to the Court of Appeal’s ruling in James v R:19
We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether Judge Tuohy erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong? Ms Guy Kidd for the Crown properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree. We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.
(footnotes omitted).
[39] Ms Barrett also referred to the Court of Appeal’s ruling in R v D where it recognised that the view of the sentencing judge is accorded greater weight in determining whether imprisonment or home detention is appropriate.20
[40] Ms Barrett submitted the Judge did refer to the appellant’s personal mitigating factors but took the view that these were not so unusual or profound as to adjust the end sentence. The Judge expressly noted his view that previous sentences of community work and home detention had not deterred the appellant from offending again.
18 Police v MacDonald, above n 1, at [17].
19 James v R, above n 11, at [17].
20 R(CA253/2008) v D, above n 12, at [66].
Was home detention appropriate?
[41] By a narrow margin, I am persuaded that the Judge erred in not converting the sentence to one of home detention. The Judge did refer to some of the aspects discussed in the PAC report at [17] of his decision, but there is no further engagement with it apart from that. While I accept it is difficult to know what “enough” looks like in terms of considering all relevant factors, there is no discussion about the appellant’s mental health issues and, with respect, the passing reference made to other factors that might favour home detention as an outcome displays emphasised deterrence and denunciation at the expense of other sentencing purposes and principles.21
[42] The PAC report is clear that the appellant’s cannabis addiction is founded in his need to self-medicate, following difficulties with his familial relationships and a fatal car crash in which the coroner’s report has been delayed three times due to COVID-19. As well, the appellant was in the process of attempting to obtain cannabis legally and as acknowledged by the Judge, there is no suggestion his cultivation was for commercial purposes.
[43] But as well, the appellant’s most recent offence, prior to the current offending, was in 2016. There is a gap of nearing ten years between the incidents. I do not consider it can be said “nothing has changed”. The decline in the appellant’s pattern of offending, his increased age and his mental health issues, attested to by his family and observed by the PAC report writer, combine to strongly suggest a sentence of imprisonment would do very little to rehabilitate22 the appellant or serve the interests of the community at large.23
[44] Relevant to that finding is the effect imprisonment will have on the appellant’s ability to provide for his children, an important consideration in this sentencing, as noted by Ms Coutts.24 Of the appellant’s four children, three of them are aged one, six and 13 and he has been co-parenting these children with his former partner. These matters tend to favour a community-based sentence.
21 Manikpersadh v R, above n 10, at [17]–[19]; Brittin v Police, above n 9, at [55].
22 Sentencing Act 2002, s 7(1)(h).
23 Section 16(1).
24 Phillip v R, above n 16, at [50]–[52].
[45] Deterrence and denunciation are important sentencing purposes and a sentence of home detention recognises those purposes, though imprisonment will be more appropriate for more serious offending.25 Weighed against other sentencing factors, I am unable to see why the purposes of deterrence and denunciation would not be served in this case should a sentence of home detention be imposed.
[46] The seriousness of the firearm charge is the most compelling factor in favour of a sentence of imprisonment. In Tangi, a loaded semi-automatic firearm was found in the gang-affiliated appellant’s car when stopped by police “in circumstances which suggest a willingness to use [the firearm]”. There, a sentence of imprisonment as opposed to home detention was imposed.26 There is no suggestion of a similar willingness here and the unloaded gun, though found in a vehicle, was located on a private property. The appellant’s offending is markedly less egregious than that which was involved in Tangi and there appears to be no reason the appellant’s explanation for his possession of the gun cannot be taken at face value, while acknowledging the gross negligence and foolishness implicit in his actions.
[47] The Crown’s opposition to home detention stressed the need to appropriately denunciate and deter when sentencing firearm offending.27 While I accept that contention unreservedly, the factual matrix presented by the appellant’s satisfies me that the level of conduct here would be appropriately recognised by a sentence of home detention.28
[48] I note Mikaera v Police where Ellis J allowed an appeal against the trial Judge’s refusal to impose home detention, in a case where the trial Judge also emphasised the need to denounce and deter. Ellis J found the trial Judge’s placement of “little if any weight on the PAC report writer’s assessment” of the appellant’s rehabilitation prospects to constitute an error that qualified re-examination.29 Ellis J ordered further information to be provided following discussions at the hearing that affirmed her view the trial Judge was in error. While I have not had the benefit of further information, I
25 R v Iosefa [2008] NZCA 453 at [41].
26 Tangi v R, above n 5, at [76].
27 R v Richardson, above n 13, at [33].
28 Manapori v Police, above n 5, at [28].
29 Mikaera v Police, above n 13, at [29].
consider the same error has happened here. While passing reference was made to factors in favour of home detention, the purposes of denunciation and deterrence favouring imprisonment were, in my view, overemphasised.
Result
[49] Effectively, this appeal, in terms of its result, is for the appellant to be granted leave to apply to the District Court for home detention. In this sense, the appeal is somewhat of a pyrrhic victory currently because there is no current address at which the appellant could serve such a sentence of home detention. And even if there was an address offered, it would have to be properly assessed as suitable and the occupants also assessed as suitable.
[50] Accordingly, the appeal is allowed and the sentence is varied under s 251(2)(b) of the Criminal Procedure Act 2011. In accordance with s 80I of the Sentencing Act 2002, I make an order granting the appellant leave to apply to the District Court for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if he finds a suitable residence at a later date.
Harland J
Solicitors:
H C Coutts, Bridgeside Chambers, Christchurch Raymond Donnelly & Co., Christchurch.
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