Howe v Police [2021] NZCA 619 (9 December 2021)

Last Updated: 14 December 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA532/2021 [2021] NZCA 619

	BETWEEN	DARWIN MARLIN HOWE Appellant
	AND	NEW ZEALAND POLICE Respondent

Hearing:	24 November 2021
Court:	Cooper, Collins and Goddard JJ
Counsel:	M G Robinson and S J McDonald for Appellant M H Cooke for Respondent
Judgment:	9 December 2021 at 3.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard J)

Introduction

• [1] On 8 July 2021 Mr Howe was sentenced in the District Court at Porirua to 13 months’ imprisonment.^[1] Judge Doyle granted leave to Mr Howe to apply for home detention at a suitable residential rehabilitation address.^[2] Post-release conditions were imposed for six months.^[3] Mr Howe was also disqualified from driving for 18 months.^[4]
• [2] The sentence was imposed in respect of the following charges:

  (a) one charge of unlawfully getting into a motor vehicle;^[5]
  (b) three charges of driving while disqualified (third or subsequent);^[6]
  (c) one charge of possession of two methamphetamine pipes;^[7]
  (d) one charge of possession of a Class A controlled drug (methamphetamine);^[8]
  (e) one charge of receiving property over $500;^[9] and
  (f) one charge of dangerous driving.^[10]

• [3] Mr Howe appealed against that sentence to the High Court. The appeal was dismissed by Churchman J.^[11]
• [4] There are no available residential rehabilitation addresses at which Mr Howe could serve a sentence of home detention. So he is serving the 13-month sentence of imprisonment imposed on him, and has now served some five months of that sentence. His release date is in late January 2022.
• [5] This Court granted leave to Mr Howe to bring a second appeal against his sentence under s 253 of the Criminal Procedure Act 2011.^[12]
• [6] Mr Howe has for some years been trapped in a cycle of drug use, offending (mostly driving offences) and short sentences of imprisonment. The sentences he has served have not provided any real opportunity to deal with the underlying causes of his offending. We accept that Mr Howe appears now to be committed to making a change in his life and breaking that cycle. His brother and sister-in-law and their daughter are willing to provide a home for Mr Howe if a community-based sentence is imposed, and are willing to support his rehabilitation.
• [7] We have given careful consideration to the alternative sentences that might be imposed to support Mr Howe’s rehabilitation. We agree with Mr Robinson, counsel for Mr Howe, that spending further time in prison will not help with Mr Howe’s rehabilitation and may well make things worse. Mr Howe has not been provided with any meaningful support that might assist with his rehabilitation to date, and is not likely to receive any such support before his release date in a few months’ time. That is profoundly unsatisfactory. There is an obvious need for Mr Howe to be provided with the support he requires to give him a real chance of breaking out of his current cycle of drug use and offending.
• [8] However none of the sentencing options that are realistically available on this appeal, some two months before Mr Howe’s release date, can provide any real support for his rehabilitation. No services have been identified that could provide a significant level of support in the community over the next month or two, if a sentence of home detention were to be imposed. And as Mr Robinson realistically accepts, Mr Howe’s pattern of offending confirms that there is a real risk that he will breach home detention conditions and commit further driving offences that put the public at serious risk. That risk cannot be sufficiently addressed by GPS monitoring.
• [9] The appeal must therefore be dismissed.

Background

The relevant offending

• [10] In the early morning of 15 February 2021, Mr Howe was driving a vehicle down State Highway 1, despite being disqualified from driving at the time. He was stopped by police at a COVID-19 checkpoint and asked to produce his driver’s licence. He immediately admitted that he was disqualified and complied with police instructions. The vehicle was impounded and Mr Howe was arrested and charged with driving while disqualified.
• [11] On 9 March 2021, while Mr Howe was on bail for his 15 February 2021 driving while disqualified charge (and still disqualified), he drove down State Highway 1 near Paremata in the early hours of the morning. Mr Howe saw a police vehicle and accelerated away at speed. The police followed and observed him travelling at 170 kilometres per hour. Mr Howe also turned his lights off as he continued to travel at high speeds away from the police. This resulted in an additional driving while disqualified charge and a dangerous driving charge.
• [12] On 19 March 2021, Mr Howe was caught driving a stolen vehicle with stolen number plates in the early hours of the morning. This resulted in the final driving while disqualified charge, the charge of unlawfully getting into a motor vehicle, and the receiving property charge (in respect of the stolen licence plates affixed to the stolen car).
• [13] On 24 March 2021 Mr Howe was in the driver’s seat of a parked vehicle in Paraparaumu (in breach of bail). He was located by police, who blocked him from leaving, and arrested and searched him. They located two methamphetamine pipes in his satchel bag, and approximately 0.1 grams of methamphetamine. This led to the possession of methamphetamine pipes and possession of methamphetamine charges.
• [14] At the time of this offending, Mr Howe was subject to release conditions, including special conditions requiring him to attend an alcohol and drug assessment and to see a departmental psychologist.

Previous offending

• [15] Mr Howe has an extensive history of offending since 2008, with some 88 convictions including 18 previous driving while disqualified offences; other driving offences; substance-related offending; theft; assault; and multiple failures to comply with community work and bail requirements. Between 2011 and 2020 he served a number of short sentences of imprisonment.

Mr Howe’s personal circumstances

• [16] Mr Howe is 30 years old. He is of Māori and European descent. During childhood he was exposed to, and experienced, significant violence. Both parents engaged in substance abuse, and spent extended periods in prison. At times they were both in custody, and Mr Howe lived with various relatives. Mr Howe had a range of behavioural issues and difficulties at school which led to him being expelled when he was 14 years old. He attended an alternative education programme until he was 17 years old. Mr Howe has been employed in a range of jobs since then, including working in a family restaurant, fishing, labouring and forestry.
• [17] Mr Howe is in a long-term relationship. His partner of some seven years lives in Auckland. The relationship has been intermittent, due in part to his incarceration. He has no children, but enjoys helping his partner with her two children.
• [18] Mr Howe has a history of substance abuse — in particular methamphetamine and cannabis. He has been diagnosed as meeting the threshold for stimulant use disorder. He has in the past been diagnosed as experiencing Attention Deficit Hyperactivity Disorder (ADHD) as a child. His functioning may also be affected by pre-natal alcohol or other drug use, and past trauma. Difficulties have been identified in a number of areas of neuro-psychological functioning. Mr Howe has very limited literacy, but says he can read enough to get by. Mr Howe has expressed a strong desire to address his substance use and behavioural issues.
• [19] Mr Howe has at times been involved with the Mongrel Mob gang.
• [20] Mr Howe’s brother, sister-in-law and niece have been very supportive of Mr Howe in the period leading up to his sentencing, and following that sentencing. They are willing to have Mr Howe serve a sentence of community detention or home detention in their home, and to support him in complying with the requirements of any sentence and staying out of trouble.

Pre-sentence reports

• [21] Two pre-sentence reports were prepared to assist with Mr Howe’s sentencing. The reports recommended a sentence of community detention to be served at his brother and sister-in-law’s address in Wellington, with a curfew period from 7.00 pm until 7.00 am daily. The report writer also recommended intensive supervision with the following special conditions:

  (a) to attend an assessment for alcohol and other drug use, including residential rehabilitation, as directed by a Probation Officer;
  (b) to attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer;
  (c) to attend a psychological assessment with a departmental psychologist as directed by a Probation Officer and complete any treatment and/or counselling as recommended by the assessment to the satisfaction of a Probation Officer; and
  (d) not to possess, consume or use any alcohol or drugs not prescribed to him.

• [22] The District Court Judge directed that an assessment report be prepared under s 38(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 to inform the sentencing. A report was prepared by Ms Ruth Pracy, a registered clinical psychologist. Ms Pracy considered that Mr Howe did not appear to be “mentally disordered” within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992.^[13] But his childhood and subsequent experiences have led him to have few skills for management of his emotions and impulses, and to experience considerable painful emotions, some of which may have led to a tendency to perceive himself as victimised and/or powerless and to feel anger at the police and society. This combination of factors has likely led to impulsive and disruptive behaviour and gravitation to anti‑social peers. Those factors also likely contributed to substance abuse from an early age. His offending and substance use have been normalised by his environment throughout much of his life, and have become entrenched.
• [23] Ms Pracy’s report records that Mr Howe is motivated to address his substance use, which she identified as a priority. His trauma symptoms and limited skills for managing distress, emotions and impulses were identified as another key initial treatment target. Ms Pracy considered that a residential treatment programme for substance abuse would be appropriate. Such a programme would also need to prioritise development of skills to manage distress, emotions and impulses, and strategies to manage substance-specific symptoms. This could occur in prison or in the community. Planning for support following the residential programme would be vital. Ms Pracy considered that Mr Howe’s anger and substance use both presented potential safety issues which should be monitored.
• [24] There was no written report prepared under s 27 of the Sentencing Act 2002. But Mr Howe’s family spoke at his sentencing about his background, and their willingness to support him, as contemplated by s 27.

District Court decision

• [25] The Judge noted that comprehensive reports were available to her. They set out Mr Howe’s significant rehabilitation needs, which are complex and multi‑layered. But as the Judge noted, the reports show, as the Judge said to Mr Howe at sentencing, that “you are at the point now at 30 years of age where you are putting your hand up and saying I am done with this and I want some help and I know it is going to be hard but I am up for it”.^[14]
• [26] The Judge also specifically acknowledged the whānau support for Mr Howe at his sentencing.^[15]
• [27] The Judge adopted the driving while disqualified charges as the lead offences. She took 18 months’ imprisonment as the starting point for sentencing Mr Howe for the most serious of those charges, uplifted it by four months for the two other driving while disqualified convictions, and added a further two months for the dangerous driving and unlawfully getting into a vehicle charges. The possession of methamphetamine and possession of pipes charges did not attract a further uplift. No uplift was imposed for the receiving of the licence plates. There was a two-month uplift to reflect his 70 previous convictions (not including the 18 driving while disqualified charges, which were considered as part of the starting point). That resulted in an adjusted starting point of 26 months’ imprisonment.^[16]
• [28] The Judge allowed a 25 per cent discount for Mr Howe’s guilty pleas, which had been given as early as possible. The Judge also concluded that Mr Howe should receive a significant discount of 25 per cent for his personal circumstances, including his difficult childhood and current battles with drugs and mental health, as well as his expressions of remorse, and willingness to engage in restorative justice.^[17]
• [29] The cumulative discount of 50 per cent resulted in a sentence of 13 months’ imprisonment.
• [30] The Judge then considered whether Mr Howe’s sentence should be converted into a community-based sentence. The difficult aspect of the case, the Judge said, was how to balance Mr Howe’s rehabilitative needs and the public interest in having him rehabilitated, with the need to protect the public from his ongoing offending and, in particular, any risk that he might pose to the public because of his driving.^[18]
• [31] The concern identified by the Judge was whether Mr Howe was yet at the point where it is safe for him to be in the community and receiving treatment. He had been sentenced to multiple short terms of imprisonment. The Court had not been prepared to give him a community-based sentence since 2012, when he was 22 years old. The Judge accepted that Mr Howe was in the best position he had been in for nearly 10 years to start addressing his complex needs. But the Judge considered that he could not be allowed into the community at this stage because the risk of re‑offending and, therefore, the risk to the community remains too great. Balancing his rehabilitation needs with public safety, the balance came down in favour of public safety. The Judge considered that meant she could not find that the least restrictive option that is appropriate in all the circumstances is a community-based or electronically-monitored sentence. She sentenced him to 13 months’ imprisonment.^[19]
• [32] The Judge then granted leave to apply for home detention, saying:

[48] I am going to grant you leave to apply for home detention but only if you can provide an address which will enable you to undertake residential rehabilitation. So what that means is that if you can get into the Bridge programme or some rehabilitation programme then you can complete your sentence at that programme. The reason I have to wrap that around you so tightly is because there is too much of a risk that if you have any choice about it you will choose to continue to offend, particularly when it gets hard. This way I give you two choices. You either do the rehab or you go back to jail and you do your time, and I can tell you Mr Howe, a lot of people end up doing the time because the rehab is really hard. So I want to give you that opportunity, but I want to give you that opportunity in the safest way to protect you from torpedoing your life anymore and also to protect the public from the fallout if that is the path you choose to take.

• [33] As noted above, Mr Howe was also disqualified from driving, and post-release conditions were imposed.^[20]
• [34] The Judge concluded as follows:

[58] Mr Howe, I have been really impressed with you and with your whānau. It is a matter of timing and a matter of making sure that if you go down this track you are as well supported as you possibly can be to make it work for you, because the temptation for you to slip into the old and comfortable habits will be huge, particularly when you are faced with the challenge of having to address head on some of these things that you have been carrying around with you. Thank you for listening to me with courtesy. Thank you for addressing me directly. Thank you also to the whānau who have been here and for staying as long as you have.

High Court judgment

• [35] Before the High Court, counsel for Mr Howe argued that the sentence imposed was manifestly excessive. Counsel also submitted that the Judge should have imposed a sentence of home detention.
• [36] Churchman J did not consider that the District Court Judge erred in considering the factors relevant to length of sentence. He identified the ultimate question as whether:^[21]

... in balancing the risk to the public with Mr Howe’s rehabilitative needs, ... the Judge placed too much emphasis on the latter and not enough on the former by imposing a sentence of imprisonment that would therefore be manifestly excessive.

• [37] The High Court Judge noted that if an offender is convicted of an offence punishable by imprisonment, and the end sentence reached is a sentence of imprisonment of up to 24 months, home detention is available as a sentencing option. He said that whether or not it is appropriate to impose this sentence, in the circumstances of a particular case “is a matter for the discretion of the sentencing Judge. There is no presumption in favour of home detention being imposed.”^[22]
• [38] The High Court Judge noted that while denunciation and deterrence are significant factors in the sentencing process, s 7(1)(h) of the Sentencing Act dictates that a purpose of sentencing is to assist in the offender’s rehabilitation and reintegration, and rehabilitation should be given adequate recognition in sentencing.^[23] The critical issue in this case was whether Mr Howe has sufficient support around him to ensure that he gets the rehabilitative support that he needs, and that with that support, he can be effectively monitored so as to reduce his risk of re-offending.^[24]
• [39] The hearing was adjourned to enable counsel to provide the Court with further information. Mr McDonald, counsel for Mr Howe before the High Court, provided the Court with details of a community voluntary narcotics anonymous programme, held on Wednesday evenings. Mr McDonald had also been in touch with Ora Toa Mauriora, which provides weekly counselling sessions. It is not a residential programme. In the limited time available, it had not been possible for a place on either programme to be confirmed.
• [40] The High Court Judge accepted that home detention was potentially an available option. But, he said, in this case, unless a fully residential narcotic rehabilitation placement was available, “the pattern of Mr Howe’s repetitive offending, including repeat offending while on bail, meant that the risk to the community was just too great”.^[25] He noted that the District Court Judge had granted leave to Mr Howe to apply for home detention if he could provide an address which would enable him to undertake a residential rehabilitation programme. That option, the High Court Judge said, remained available to Mr Howe.^[26]
• [41] The appeal was dismissed.

Leave to appeal

• [42] Mr Howe applied for leave to bring a second appeal to this Court against his sentence under s 253 of the Criminal Procedure Act. As noted above, this Court granted leave on 12 November 2021.^[27]
• [43] Counsel were asked to focus their submissions on whether a miscarriage of justice occurred as a result of an incorrect assumption about the potential availability of a residential rehabilitation facility as an address at which to serve a sentence of home detention, and/or as a result of a failure to consider whether the risk to public safety posed by Mr Howe could be adequately addressed by a sentence of home detention, with GPS monitoring. However that did not preclude counsel from addressing other issues.^[28]

Appellant’s submissions on appeal

• [44] Mr Robinson submitted that imprisonment was not the least restrictive outcome that was appropriate, having regard to the purposes of sentencing set out in s 7 of the Sentencing Act. His focus was on the sentencing goal of rehabilitation.^[29] He emphasised the absence of any therapeutic services available to Mr Howe while serving his current sentence. The only support for rehabilitation he has received to date has been a one-week meditation course. No further courses or other therapeutic services are likely to be available during the balance of his term of imprisonment. Mr Howe would then be released on conditions that do not provide any material support for rehabilitation. In particular, he will not receive the level of support he would receive if sentenced to intensive supervision.
• [45] Mr Robinson pointed out that following release from prison in January 2021, under the current sentence, Mr Howe will not be subject to GPS monitoring. If he relapses, there will be nothing to prevent him from driving. So the risk identified by the Judges below will be present, and will be greater than if he were on home detention with GPS monitoring to alert the Department of Corrections or police to any use of a vehicle.
• [46] Mr Robinson submitted that the Courts below had taken too short-term an approach to assessing risk to the public. The protection of the public, taking a longer‑term view, supports a sentence of home detention, or community detention and intensive supervision, coupled with appropriate rehabilitation services.
• [47] Mr Robinson accepted that home detention coupled with GPS monitoring could not prevent Mr Howe from leaving the house and driving a vehicle. And he accepted that given Mr Howe’s record of failure to comply with bail and sentence conditions, the risk that he would do so cannot be ruled out. But GPS monitoring would mean any breach was detected, and Mr Howe could be found and detained relatively promptly. And he would only have the opportunity to do this once.
• [48] Mr Robinson advised us that Mr Howe would not have access to his family’s car: the car keys would be kept in a safe. A family member would be in the house much of the time. They would provide a good level of oversight.
• [49] Mr Robinson accepted, in response to questions from the Court, that it was difficult to see how a sentence of home detention for a further two months or so could support meaningful rehabilitation. As Mr Robinson noted, residential rehabilitation courses are considerably longer (nine to 18 months), and there is no assurance that Mr Howe would be able to access those during or after a much shorter period of home detention. Mr Robinson suggested that intensive supervision for a longer period, or home detention for a longer period than the pre-release balance of the prison term, could facilitate access to residential rehabilitation services. But Mr Robinson did not have instructions to seek a longer period of home detention in substitution for serving the balance of Mr Howe’s prison term.
• [50] Ideally, Mr Robinson said, Mr Howe’s sentence would include intensive supervision for a period of at least nine months. That would improve the prospect of Mr Howe receiving appropriate therapeutic services. But a sentence of intensive supervision cannot be combined with a sentence of home detention.^[30] A sentence of intensive supervision can be combined with community detention: but electronic monitoring under a sentence of community detention would not include GPS monitoring, so the risk to the community from Mr Howe’s driving while on sentence would not be addressed as effectively.

Crown submissions on appeal

• [51] Ms Cooke, who appeared for the Crown, accepted that the lack of effective support for Mr Howe’s rehabilitation is very troubling. But, she submitted, there was no error in the approach adopted by the District Court and High Court Judges. The sentencing options available to the Courts below were limited. That is even more plainly the case so far as this Court is concerned, given the limited time left to run before Mr Howe’s release date.
• [52] If Mr Howe remains in prison, he will have had some six months of abstinence from methamphetamine in total by his release date. The six months of release conditions imposed by the District Court will then apply. That provides some support for rehabilitation.
• [53] Ms Cooke submitted that the Judges below were right to proceed on the basis that the critical issue was public safety. Electronic monitoring would not prevent Mr Howe from leaving the property and driving. It mitigates the risk of flight, but is not a fool-proof mechanism. Home detention depends on an attitude of compliance.^[31] Mr Howe’s record indicates there is a substantial risk that he will not comply with bail and sentence conditions. There is no less restrictive disposition that would be appropriate in all the circumstances.^[32]

Discussion

• [54] This Court must allow the appeal if satisfied that there is an error in the sentence imposed and a different sentence should be imposed.^[33]
• [55] Section 8(g) of the Sentencing Act requires the court to impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders set out in s 10A. A sentence of home detention is less restrictive than a sentence of imprisonment. So the court must impose a sentence of home detention, rather than a sentence of imprisonment, unless a sentence of home detention would not be appropriate in all the circumstances.
• [56] Section 16(2) of the Sentencing Act underscores the requirement that the imposition of a sentence of imprisonment must be justified by reference to the purposes of sentencing set out in s 7 of the Sentencing Act:

16 Sentence of imprisonment

...

(2) The court must not impose a sentence of imprisonment unless it is satisfied that,—

(a) a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and
(b) those purposes cannot be achieved by a sentence other than imprisonment; and
(c) no other sentence would be consistent with the application of the principles in section 8 to the particular case.

• [57] Section 7(1) of the Sentencing Act, referred to in s 16(2)(a), reads as follows:

7 Purposes of sentencing or otherwise dealing with offenders

(1) The purposes for which a court may sentence or otherwise deal with an offender are—

(a) to hold the offender accountable for harm done to the victim and the community by the offending; or
(b) to promote in the offender a sense of responsibility for, and an acknowledgment of, that harm; or
(c) to provide for the interests of the victim of the offence; or
(d) to provide reparation for harm done by the offending; or
(e) to denounce the conduct in which the offender was involved; or
(f) to deter the offender or other persons from committing the same or a similar offence; or
(g) to protect the community from the offender; or
(h) to assist in the offender’s rehabilitation and reintegration; or

(i) a combination of 2 or more of the purposes in paragraphs (a) to (h).

• [58] Section 16(2) is subject to any provision in an enactment that provides a presumption in favour of imposing a sentence of imprisonment, or requires a court to impose a sentence of imprisonment in relation to a particular offence.^[34] But in cases such as the present, where there is no express presumption or requirement to impose a sentence of imprisonment, the Sentencing Act makes it very clear that the less restrictive sentence of home detention should be imposed in preference to a sentence of imprisonment unless imprisonment is the only way in which one or more of the sentencing purposes in s 7(1)(a)–(c), (e), (f) or (g) can be achieved.
• [59] What, then, is the sentencing purpose that requires a sentence of imprisonment to be imposed in this case? The District Court Judge and the High Court Judge considered that imprisonment was required in order to achieve the purpose in s 7(1)(g): to protect the community from Mr Howe. More specifically, imprisonment would protect the community from the risk posed by his driving.
• [60] There is real force in Mr Robinson’s submission that the protection that imprisonment provides to the community from the risk of Mr Howe’s driving is very short-term. From a longer-term perspective, the community would be better protected by providing Mr Howe with appropriate rehabilitation services to help break the cycle of drug use and offending, including driving offending.
• [61] However as Ms Cooke submitted, imposing a sentence of home detention rather than a sentence of imprisonment will not facilitate provision of meaningful rehabilitation services in the particular circumstances of this appeal. So there is no difference as between those two sentencing options in terms of long-term community protection. And in the short-term, imprisonment provides more effective protection for the community from Mr Howe’s driving. The use of GPS monitoring in connection with a sentence of home detention would go some way to reducing the risk of Mr Howe obtaining drugs and driving. But based on Mr Howe’s record of failure to comply with bail and sentence conditions, a real risk of non-compliance and driving (dangerously) while disqualified would remain.
• [62] In those circumstances, we are not persuaded that the Courts below erred in the conclusion that a sentence of imprisonment was appropriate, unless a sentence of home detention could be served in a residential rehabilitation facility. The sentence imposed was consistent with ss 7, 8 and 16 of the Sentencing Act.
• [63] We add that we accept that there is real potential for Mr Howe to turn his life around, and we acknowledge the impressive family support available to him to assist him in pursuing that goal. It is most unfortunate that Mr Howe has not to date received the therapeutic services that his complex needs require, while serving his current sentence. It would be still more unfortunate if appropriate support — preferably including residential rehabilitation services — cannot be provided in connection with the balance of his sentence, and the release conditions that will apply following Mr Howe’s release date. As discussed with counsel at the hearing, an application under s 94 of the Sentencing Act for variation of Mr Howe’s release conditions may be desirable to facilitate the provision of appropriate rehabilitation services.

Result

• [64] The appeal is dismissed.

Solicitors:
Robinson Legal, Wellington for Appellant
Crown Law Office, Wellington for Respondent

---

^[1] Police v Howe [2021] NZDC 13856 [Sentencing notes] at [47].

^[2] At [48].

^[3] At [56].

^[4] At [49]–[51].

^[5] Crimes Act 1961, s 226(2): maximum sentence of two years’ imprisonment.

^[6] Land Transport Act 1998, s 32(1)(a) and (4): maximum sentence of two years’ imprisonment or $6,000 fine, and mandatory disqualification from driving.

^[7] Misuse of Drugs Act 1975, s 13(1)(a) and (3): maximum sentence of one year’s imprisonment and/or $500 fine.

^[8] Section 7(1)(a) and (2): maximum sentence of six months’ imprisonment and/or $1,000 fine.

^[9] Crimes Act, ss 246 and 247(c): maximum sentence of three months’ imprisonment.

^[10] Land Transport Act, s 35(1)(b) and (2): maximum sentence of three months’ imprisonment or $4,500 fine, and mandatory disqualification from driving.

^[11] Howe v Police [2021] NZHC 2087 [High Court judgment].

^[12] Howe v Police [2021] NZCA 604 [Leave judgment].

^[13] See Mental Health (Compulsory Assessment and Treatment) Act 1992, s 2 definition of “mentally disordered”.

^[14] Sentencing notes, above n 1, at [8]–[9].

^[15] At [10].

^[16] At [19] and [25]–[28].

^[17] At [29].

^[18] At [30]–[31].

^[19] At [44]–[47].

^[20] At [49]–[51] and [56].

^[21] High Court judgment, above n 11, at [42].

^[22] At [43].

^[23] At [45], citing Mallett v R [2014] NZCA 39 at [11].

^[24] At [48].

^[25] At [54].

^[26] At [55].

^[27] Leave judgment, above n 12.

^[28] At [3].

^[29] Sentencing Act, s 7(1)(h).

^[30] Section 19(7).

^[31] Talatofi v R [2018] NZHC 597 at [26]. See also Boughey v Police [2021] NZHC 2760 at [24].

^[32] Sentencing Act, s 8(g).

^[33] Criminal Procedure Act 2011, s 256(2).

^[34] Sentencing Act, s 16(3).