Sykes v Police
[2025] NZHC 2958
•8 October 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2025-442-18
[2025] NZHC 2958
BETWEEN DARREN JOHN SYKES
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 25 September 2025 Appearances:
K Hennessy for Appellant
J W Cameron for Respondent
Judgment:
8 October 2025
JUDGMENT OF McQUEEN J
[1] Mr Sykes was sentenced to 18 months’ imprisonment on charges of shoplifting,1 disqualified driving,2 trespass3 and breach of bail4. He appeals against sentence on the basis that the Judge failed to consider granting him leave to apply for the sentence to be converted to home detention.
The offending
[2] Mr Sykes has a long history of offending dating back to 1993. He also has a long history of substance use problems that he addressed in 2010 through residential treatment, leading to eight years of sobriety. However, he recommenced drinking
1 Crimes Act 1961, ss 219 and 223(d). Maximum penalty three months’ imprisonment.
2 Land Transport Act 1998, ss 32(1)(a) and 32(4). Maximum penalty two years’ imprisonment or a fine of $6,000.
3 Trespass Act 1980, s 4(4) and 11(2)(a). Maximum penalty three months’ imprisonment or a fine of $1,000.
4 Bail Act 2000, s 24. Maximum penalty three months’ imprisonment or a fine of $1,000.
SYKES v NEW ZEALAND POLICE [2025] NZHC 2958 [8 October 2025]
alcohol and using methamphetamine. An alcohol and drug report writer has said that alcohol and methamphetamine use have kept Mr Sykes in a cycle of offending.
[3] Mr Sykes’ 10 shoplifting charges arose from him entering local Nelson supermarkets, a homeware store and a sporting store and taking various items between January and May 2025. The reparation amounts sought total $2,820.
[4] The three trespass charges relate to local supermarkets. On 7 May 2023 and 30 August 2024, Mr Sykes was served a trespass notice from two different supermarkets in Nelson. On three separate dates in early March 2025, Mr Sykes entered the supermarkets without authority and stole grocery items.
[5] Mr Sykes was indefinitely disqualified from driving on16 July 2018. However, in January 2024, Mr Sykes drove three times—giving rise to three charges of driving while disqualified. In each instance there were no aggravating factors to the driving charges.
The decision under appeal
[6] The Judge outlined Mr Sykes’ offending and noted that it occurred against a background of a significant offending history, and that the current charges are “a continuation of similar conduct”.5 The Judge referred to the contents of the pre- sentence report that “oscillates between proposing that a sentence of [home detention] be imposed … and that imprisonment is the most appropriate outcome” due to the appellant’s history of non-compliance.6 He noted the driver of Mr Sykes’ offending is drug dependency which “of course … you suggest you are done with”.7 Later the Judge says he has considered the alcohol and drug report which stated that after a period of sobriety, alcohol and methamphetamine use again featured prominently in Mr Sykes’ life and ultimately led to his current “cycle of offending”.8
5 R v Sykes [2025] NZDC 16518, at [7].
6 At [6].
7 At [7].
8 At [11].
[7] The Judge then considered the proposed address for home detention, noting the Police position that Mr Sykes’ offending history and lack of reliability makes “imprisonment the only outcome which is realistic”.9
[8] Against that background, the Judge concluded that “the only realistic outcome has to be a sentence of imprisonment”.10 A starting point of 10 months was adopted for the combined dishonesty offending. An uplift of nine months was applied for the three driving whilst disqualified offences, and an uplift of three months for the trespass charges. This resulted in a combined starting point of 22 months’ imprisonment. Turning to discounts, the Judge rounded up the 25 per cent early guilty plea discount to a reduction of six months. A further one month was discounted for matters raised in the alcohol and drug report, bringing the sentence to 15 months. Finaly, a three-month uplift was applied variously for offending whilst on bail and the defendant’s prior history, leading to an end sentence of 18 months’ imprisonment.
The appeal
[9] The appeal is focussed solely on the refusal of the Judge to allow Mr Sykes to apply for home detention. Counsel for Mr Sykes, Mr Hennessy, says the pre-sentence report and alcohol and drug report make it clear Mr Sykes needs community care for drug and alcohol addiction, noting that Mr Sykes has had considerable periods of sobriety.
[10] Mr Sykes says the pre-sentence report was “confused” and initially stated that “electronic monitoring was a fair outcome”, but then recommended imprisonment. He submits that home detention was being considered until “the prosecutor stood up and said that there had been an incident at the property address on 1 July 2025 that … then put in question the address’s suitability for home detention”. After this, the Judge sentenced Mr Sykes to imprisonment without leave to apply.
9 At [9].
10 At [12].
[11] Mr Hennessy submits that there were deficiencies with the pre-sentence report. He submits that, as a result, a fair outcome would have been to grant leave to allow Mr Sykes to pursue the address again (or another address) at a later date.
[12] Counsel for Police, Mr Cameron, submits that Mr Sykes cannot be successful on appeal as this is not a case where but for availability of an address, home detention would have been imposed. Rather, imprisonment was the intended and only appropriate outcome given Mr Sykes’ recidivist dishonesty and driving offending. Indeed, Mr Cameron submits the sentence imposed was arguably lenient.11
The law
Principles on appeal
[13] Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different sentence should be imposed.12 Here, Mr Sykes contends that the Judge has erred by failing to grant him leave to apply for home detention.
Leave to apply for home detention
[14]Section 80I provides that:
80ILeave to apply for cancellation of sentence of imprisonment and substitution of sentence of home detention in certain cases
(1)This section applies if—
(a)a court has sentenced an offender to a short-term sentence of imprisonment; and
(b)at the time of sentencing, the court would have sentenced the offender to a sentence of home detention if a suitable residence had been available.
(2)At the time of sentencing, the court must make an order granting the offender leave to apply to the court of first instance for cancellation
11 Pyper v Police [2021] NZHC 1448 and Williams v Police [2015] NZHC 1118.
12 Criminal Procedure Act 2011, ss 250(2) and 250(3).
of the sentence of imprisonment and substitution of a sentence of home detention if the offender finds a suitable residence at a later date.
[15] This Court has held that the obligations contained in s 80I(2) are directory and not discretionary. In Bourton v New Zealand Police, Dunningham J observed:13
[12] I am satisfied that the commentary in Hall's Sentencing is correct. Section 80I is directory not discretionary. The section imposes a mandatory obligation on the Judge provided the threshold criteria are met. The obligation arises independently from any application by a defendant (or lack thereof) for leave to apply for substitution.
[13] The Court must therefore reach a view when it imposes a short-term sentence of imprisonment as to whether it would have sentenced the offender to home detention if a suitable residence had been available. Commonly this issue is addressed by judges simply saying something along the lines of “even if a suitable address had been available I would have imposed a sentence of imprisonment because … “. A statement such as that precludes the application of s 80I(1)(b) and heads off the mandatory application of s 80I(2).
…
[15] As a consequence, where a Judge has failed to address s 80I(1)(b) such that it is not clear whether he or she has overlooked the mandatory requirement in s 80I(2), there is an error in sentencing.
[16] While the Judge may not expressly refer to s 80I(i)(b) and discount home detention even if a suitable residence had been available, that conclusion may also be gleaned from reviewing the decision as a whole. There will be decisions where it is clear the Judge has determined that imprisonment is the only appropriate sentence in the particular case and, by implication, the option of home detention is precluded.
Discussion
[16] As set out above, the obligation under s 80I(2) will only arise where the sentencing Judge would have imposed a sentence of home detention if a suitable address had been available at the time of sentencing. The argument for Mr Sykes assumes that the only reason the Judge refused to order a sentence of home detention or to grant leave to apply was because of the lack of a suitable address. However, in my view, this is incorrect. Rather, the Judge made it clear that he thought imprisonment was the only realistic outcome, given Mr Sykes’ recidivist offending history and likely risk of reoffending. The Judge stated:
13 Bourton v New Zealand Police [2016] NZHC 2883.
[7] The report also underlines that you have an offending history spanning 30 years, commencing back in November 1993. The charges for which you are before the Court really are a continuation of similar conduct, for which the report suggests there has been no real sign of abatement. The driver, it appears, is your recognised and not uncommon drug dependency which, of course, when interviewed, you suggest you are done with. That certainly has not come to pass, although to give you credit it seems like you have undertaken some rehabilitative courses while you have been on remand since May.
…
[11] I have also had the opportunity to consider the alcohol and drug report which notes that you have had residential treatment in the past, most particularly in 2010, and then had an eight-year period of sobriety. But, for whatever reasons, you recommenced drinking and methamphetamine use during 2018. As a consequence of that alcohol and methamphetamine use feature prominently again in your life, leading to the cycle of offending in which you are once again engaged.
[12] It seems to me that the only realistic outcome has to be a sentence of imprisonment. …
[17] I consider that these paragraphs in the judgment demonstrate that the Judge did turn his mind to the available sentencing options but concluded that Mr Sykes’ considerable history and previous interventions meant that imprisonment was the only appropriate sentencing outcome.
[18] While it is correct that a failure to address s 80I can be an error,14 this Court has said that there will be decisions where it is clear the Judge has determined that imprisonment is the only appropriate sentence and, by implication, the option of home detention is precluded.15 I consider that this is such a case where, despite not explicitly referring to s 80I, the substance of the provision was considered. It follows therefore that the basis on which Mr Sykes brings his appeal falls away.
[19] However, authority suggests that it remains open to Mr Sykes to appeal against the Judge’s effective refusal to grant him leave to apply for the sentence to be converted to home detention. This was acknowledged by the Crown’s submissions, where Mr Cameron says that the real issue for the Court is whether the Judge ought to have allowed a non-custodial sentence, whether imposed there and then, adjourned for inquiries or granted leave to apply. Section 250(2)(a) of the Criminal Procedure Act
14 Verbitsky v Police [2016] NZHC 2843 at [28].
15 Bourton v Police, above n 13, at [16].
requires a first appeal court to allow an appeal against sentence if, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.
[20] In order to determine whether there was an error in the Judge’s refusal to grant leave it is necessary to consider whether His Honour ought to have concluded that a sentence of home detention was appropriate. Mr Hennessy did not provide submissions on this point, beyond alleging errors in the pre-sentence report that mean a fair outcome would have been to grant leave to allow Mr Sykes to pursue home detention again.
[21] Mr Hennessy says that Mr Sykes told him the report writer had not physically checked the address before he completed his report. Further, it is said that Ms O’Brien (Mr Sykes’ partner and resident at the proposed address) was not given a criminal record check. In terms of the incident on 1 July 2025 at the address, it is said that one of the people involved “was an unwelcome visitor to the property, and the other person was a tenant who had been given prior notice to vacate by the legal tenant but had not left on that date despite expiration of his/her tenancy.” Mr Hennessy says that had the report been completed, the issues raised may have been resolved prior to the sentence, meaning that the property could be deemed suitable.
[22] As well as there being no evidence adduced to support the alleged deficiencies in the pre-sentence report, the key issue for Mr Sykes is that the pre-sentence report ultimately did not recommend imprisonment solely because of issues with the address or its occupants. The pre-sentence report records there were no concerns with the suitability of the address. However, the report writer found that Mr Sykes’ ability to comply with an electronically monitored sentence was low and his risk of re-offending is high. It was these personal factors that led the report writer to recommend imprisonment:
It is considered that a community-based sentence allowing for counselling to address his offending needs, accompanied by an EM component to serve both as a punitive aspect and having the added incentive of mitigating his likelihood of reoffending is a fair outcome. However, taking into account the recidivist nature of the offending and Mr Sykes’ history of non-compliance it is acknowledged that the Court may not deem a community-based sentence to be appropriate and therefore imprisonment with release conditions is the recommendation.
[23] This is mirrored in the District Court judgment, where the issues raised by Mr Sykes, including the incident on 1 July 2025 and issues with the address and occupants do not feature heavily in the Judge’s reasoning. Rather, the decision on whether to impose home detention is, as explained above, to do with factors personal to Mr Sykes. Therefore, I am not convinced by the argument that the pre-sentence report was deficient and that a reassessment of the address could result in a different sentencing outcome.
[24] Mr Sykes has 32 previous convictions for shoplifting, two convictions for theft, seven convictions for burglary, three convictions for demands to steal, three convictions for using a document and seven convictions for unlawfully interfering with a motor vehicle. Further, the three disqualified driving charges bring the total number of driving while disqualified charges to 12. The current charges were also committed while Mr Sykes was on Police bail, and his criminal history includes a significant number of offences committed while on bail, and five previous convictions for failing to answer bail.16 As the Judge noted, Mr Sykes has previously been sentenced to all forms of community-based sentences, none of which has abated his offending.
[25] Against this background, I can find no error in the Judge’s assessment that the only realistic option for sentencing was imprisonment. This is not a case where, but for the unavailability of an address, home detention would have been imposed.
Result
[26]The appeal is dismissed.
McQueen J
Solicitors:
Crown Solicitor, Nelson for Respondent
16 Two of which are historical.
0
4
0