[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…

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 MacDonald v Police

Details

AGLC: MacDonald v Police [2024] NZHC 3106
Case: [2024] NZHC 3106
Decision Date: 24 October 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Simon Joseph MacDonald appealed against his sentence of 22 and a half months' imprisonment, imposed by the District Court at Christchurch, for cultivating cannabis, unlawfully possessing a prohibited firearm, and breaching a protection order. The central issue in the appeal was whether the District Court erred in declining to convert the sentence to home detention, which MacDonald argued was the least restrictive sentence available and appropriate given the circumstances. The court examined the principles of sentencing, particularly whether home detention could adequately satisfy the objectives of deterrence and denunciation, and whether it was the least restrictive sentence in the context of the appellant's history of similar offences and personal circumstances.

The District Court had considered the seriousness of the firearm charge and the appellant's previous convictions for similar offences, determining that imprisonment was necessary to achieve the purposes of denunciation and deterrence. However, the High Court found that the District Court had overemphasised the purposes of deterrence and denunciation while not adequately considering other relevant factors, such as the appellant's mental health issues, his responsibility to his children, and the potential for rehabilitation through home detention. The court concluded that home detention was a viable and potentially more appropriate sentence, given the appellant's significant change in circumstances and the length of time since his last offence. Consequently, the appeal was allowed, and the sentence was varied to grant MacDonald leave to apply to the District Court for home detention if he finds a suitable residence.

Orders