Criminal Procedure Act 2011 – Tutakanghau v R [2014] NZHC 279 – previous good character – rehabilitative prospects – Zhang v R [2019] NZHC 507 – Berkland v R [2022] NZSC 143

Horn v New Zealand Police [2023] NZHC 2530.

Joshua Horn appealed the sentence of 31 months’ imprisonment imposed by the District Court for:

• burglary x 3;
• theft x 5;
• receiving x 2;
• unlawfully taking a motor vehicle x 2;
• driving while suspended x 2;
• dishonesty using a document x 2;
• unlawfully possessing knives; and
• possessing a small quantity of methamphetamine.

 The grounds for appeal were that Horn ought to have been allowed deductions for mitigating matters, which would have meant he was eligible for home detention. The Crown did not oppose the appeal but disagreed about to the extent of the available deductions.

In the District Court, the judge discounted the sentence by 18% for guilty pleas, 10% for remorse and a further 5% because Horn had begun addressing his addiction issues. But the judge allowed no deduction for the fact that Horn, aged 34, had never appeared before the court.

On appeal, the High Court noted Horn’s drug use was the main reason for his offending. It appeared he developed an addiction to methamphetamine after his business failed, his family and friends distanced themselves from him and he became homeless. After his arrest, Horn began actively engaging with Community Alcohol and Drugs Services and attending weekly counselling sessions.

On appeal, the court found the District Court erred in not accepting a causative link between Horn’s addiction and his offending.

On his previous good character, the High Court noted Horn had operated a business and had a family, indicating his life before the offending was pro-social. The court found a deduction to reflect his previous good character was required.

It imposed a 20% discount for addiction and rehabilitation prospects and a 5% discount for good character.

Applicable principle: Sentencing – mitigating factors – whether the District Court erred in not allowing discounts for good character and prospects of rehabilitation – whether the allowable deductions would have meant court could consider home detention instead of imprisonment.

Held: The appeal was allowed. An end sentence of eight months’ home detention was imposed.

Jasmine Jackson is an Auckland criminal defence barrister and a member of the ADLS Parole Law committee.

Horn v New Zealand Police [2023] NZHC 2530.