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…
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- MacDonald v Police [2024] NZHC 3106
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- [2024] NZHC 3106
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CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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