R v McKinley [2018] NZHC 601 (29 March 2018)

Last Updated: 12 April 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2012-004-14896 [2018] NZHC 601

THE QUEEN

v

SIMON DAVID McKINLEY CAMERON BLAIR BROXTON JEANETTE CATHERINE MORRIS PATRICK GERALD HILL

Hearing:	28 and 29 March 2018
Appearances:	B Northwood for Crown J D Munro and J N Olsen for Mr McKinley A J Maxwell-Scott for Mr Broxton A J Holland for Ms Morris T Maxwell for Mr Hill
Sentencing:	29 March 2018

SENTENCING NOTES OF VAN BOHEMEN J

Solicitors:

Crown Solicitor, Auckland

Counsel:

J D Munro, Auckland

A J Maxwell-Scott, Auckland A J Holland, Auckland

T Maxwell, Auckland

R v McKINLEY & ORS [2018] NZHC 601 [29 March 2018]

Introduction

[1] .Simon McKinley, Cameron Broxton, Jeanette Morris and Gerald Hill, you appear for sentence today on the following charges:

(a) Ms Morris, Mr McKinley and Mr Hill each face one charge of selling a Class C controlled drug analogue (4-MEC);¹

(b) Mr Broxton faces charges of

(i) selling a class B controlled drug (N-ethylamphetamine);² and

(ii) selling a Class C controlled drug analogue (N-ethylcathinone);³

(c) Mr Broxton, Ms Morris, Mr McKinley and Mr Hill each face one charge of selling a Class C controlled drug.⁴

[2] The maximum penalties for each of the offences with which you have been charged is imprisonment for eight years.

[3] Ms Morris, Mr McKinley, and Mr Broxton, you pleaded guilty following sentence indications on 20 February 2018 at which I heard submissions from your counsel regarding the sentences to be imposed on each of you.⁵ In giving those indications I set out the background and the offending relied upon by the Crown. I will not repeat the process by which I arrived at the indicated sentences, which is found in my sentence indication remarks, which are annexed to and form part of these sentencing notes. I will however, refer to those remarks when explaining the sentences I am imposing today.

[4] Mr Hill, you were not subject to that sentence indication, but you entered a guilty plea on 7 March 2018. I will set out the facts for which you are to be sentenced,

¹ Misuse of Drugs Act 1975, ss 6(1)(e) and 6(2)(c): maximum penalty of eight years’ imprisonment.

² Sections 6(1)(c) and 6(2)(b): maximum penalty of 14 years’ imprisonment.

³ Sections 6(1)(e) and 6(2)(c): maximum penalty of eight years’ imprisonment.

⁴ Sections 6(1)(e) and 6(2)(c): maximum penalty of eight years’ imprisonment.

⁵ R v Morris [2018] NZHC 200.

and arrive at a starting point for you, taking the same approach and with similar purposes and principles in mind as set out in my sentence indication.⁶

[5] However, in setting all of today’s sentences, I have also had regard to the sentences imposed yesterday by Woodhouse J on three Operation Ark defendants whose circumstances had a number of elements common to all of you. As I said yesterday when adjourning the sentencing until today, it is highly desirable and in the interests of justice that there is consistency in sentences imposed for similar and related offending. Furthermore, Woodhouse J presided over the main Operation Ark trial and sentenced those defendants. As Woodhouse J said when imposing yesterday’s sentences, he has a fair degree of knowledge of these matters and, most significantly for the purposes of sentencing, an understanding of relevant matters of parity between sentences imposed at the end of that proceeding and the sentences he imposed yesterday. Those parity considerations apply equally to my sentencing today.

[6] I will deal with the elements of sentence common to all of you and will then consider your personal circumstances in turn in this order: Mr McKinley, Mr Broxton, Ms Morris and Mr Hill. Before I address the specifics of the sentences, I will briefly recall the general background and the roles of each of you in the operation.

Factual background

[7] Today’s four defendants along with other co-defendants came to the attention of the police following Operation Greenstone, which investigated the activities of Mr McKinley and his involvement in the supply of ecstasy analogues. Operation Greenstone commenced following two earlier Police operations into the supply of ecstasy analogues, Operation Ark and Operation Axle, that also involved defendants in the current case as well as others.

[8] Operation Ark commenced in late 2010 following a large-scale seizure of tablets containing the controlled drug analogue 4-MEC (intended to mimic the effects of ecstasy). The operation investigated London Underground, a business established by one of the defendants in this proceeding, Christopher Chase. London Underground

⁶ R v Morris [2018] NZHC 200

was involved in marketing and distributing legal highs and also sold products including pills containing 4-MEC on the so called “after-market”. Operation Ark terminated on 16 November 2011. Mr Chase and another defendant, Dr Andrew Lavrent, amongst others, were arrested. On 25 August 2014 Mr Chase and Dr Lavrent were convicted following trial by jury on charges of importing, selling and possessing for sale 4-MEC powders and pills imported and distributed for and on behalf of London Underground.

[9] Another police operation, Operation Axle focussed on the supply of ecstasy analogues in the Hastings area. Enquiries indicated two principal suspects were purchasing their pills from Mr McKinley.

[10] Operation Greenstone was commenced as an investigation into Mr McKinley’s activities. Enquiries established Mr McKinley was being supplied pills by a Mr S. Mr S was a primary distributor of after-market pills for London Underground though he had not been arrested following Operation Ark. Other sub-distributors were Ms Morris and Mr Hill.

[11] As London Underground’s regular pill pressers had been arrested following Operation Ark, Mr Broxton was co-opted into pressing pills containing ecstasy analogues. Mr Broxton also pressed pills containing another compound, being the class B controlled drug N-ethylamphetamine and the controlled drug analogue N- ethylcathinone.

[12] Mr McKinley, you sold a total of 57,364 pills: 23,354 for which you paid Mr S
$467,080 ($20 per pill) over a six-month period and 24,010 pills for between $16 and
$25 per pill over a nine-month period.

[13] Mr Broxton, you pressed some 15,319 Class B pills overall, for which you received $30,638. You pressed some 55,404 Class C pills between January and March 2012, for which you received $57,050 in cash and in 4950 pills which you on sold. You pressed some 28,888 Class C pills in June and July 2012, for which you were paid 4000 pills and $47,000 cash. There was no evidence that you were involved in the decision making or management of the organisation.
[14] Ms Morris, it is well understood that you were a significantly less active sub- distributor than Mr McKinley or indeed Mr Hill. You sold 1,155 pills for which you paid Mr S $28,875 during Operation Ark; and sold another 3,906 pills, which likely would have produced a profit of $39,060. It is accepted that you derived only modest financial gain from your offending.

[15] Mr Hill, during the surveillance phase of Operation Ark, a period of six months from 2 June 2011 to 16 November 2011, you sold (according to Mr S’s ledgers) 33,254 pills for which you paid Mr S $665,080 ($20 per pill), the bulk of which contained the controlled drug analogue 4-MEC. You also sold other controlled drug analogues. Over a nine-month period from 17 November 2011 (the day after termination of Operation Ark) to 28 August 2012 (the day of termination of Operation Greenstone), you sold 29,832 pills containing controlled drug analogues for between
$16 and $25 per pill. The prices at which you were able to sell these pills is unknown. However, such pills are generally sold at similar rates to 4-MEC. It is estimated that you would have profited from the drug sales in this period by $298,320. I emphasise that these are estimates only. There was no evidence that you were involved in the decision making or management of the organisation.

Starting points / the impact of the Supreme Court’s decision in Cameron v R

[16] Last month, I set starting points of five years and six months’ imprisonment for Mr McKinley and Mr Broxton and three years for Ms Morris. These were each set without deciding whether to apply a separate reduction based on whether each of you knew you were dealing with a controlled drug or were merely reckless as to the nature of the substance you were supplying. I did so on the basis that I was in no position to reach a finding on the matter based on the evidence before me. However, I took account of this factor when considering the discount to be applied for a guilty plea.

[17] Mr Olsen and Mr Munro for Mr McKinley, together with counsel for Mr Broxton, Ms Morris and Mr Hill, have argued that those starting points, as well as the starting point I set for Mr Hill, should be reduced to take into account the lower level of culpability represented by the lower mens rea requirement of recklessness following
the Supreme Court’s decision in Cameron v R⁷ and the subsequent sentence imposed on Mr Cameron by Palmer J which took into account the greater uncertainty about Mr Cameron’s level of culpability.

[18] Counsel for each defendant has argued that there is sufficient evidence before me to conclude that none of you had actual knowledge of the nature of the substances you were dealing with and that you had relied on assurances that the substances were “legal” or “not on the banned list”. Ms Clark has noted that this was a feature of the Operation Ark offending. Your counsel say that, at most, you were all reckless as to the nature of the substances. Woodhouse J, as Mr Olsen pointed out, put some emphasis on this aspect when setting the starting points at his sentencing yesterday.

[19] I have approached the matter on a different basis. You have pleaded guilty to charges of selling controlled drugs and controlled drug analogues in contravention of s 6(1)(e) of the Misuse of Drugs Act 1975. While the Act does not specify the level of knowledge required for conviction of those offences, it has been established in Cameron that conviction can be secured on the basis that you either knew or were reckless as to the nature of the substances you were supplying. I consider that in the absence of strong evidence of actual knowledge, I should presume that your guilty pleas are to the lesser standard of culpability of recklessness. I agree, therefore, that the starting points I set last month should be adjusted to reflect that lesser standard of culpability.

[20] Mr Munro submitted first that I should make the same reduction made by Palmer J in Mr Cameron’s case – a reduction of one year – even though the starting points I set were considerably lower than that originally set for Mr Cameron. He and Mr Olsen then upped that to 2 years having seen the starting points selected by Woodhouse J yesterday. Ms Clark argues that any reduction should be in proportion to that made by Palmer J.

[21] Initially, I had intended to take the course advocated by Ms Clark on the basis that the differences in the offending are reflected in the charges to which Mr Cameron and you have each pleaded guilty, and in the starting points that were set as a

⁷ Cameron v R [2017] NZSC 89, (2017) 28 CRNZ 166; R v Cameron [2018] NZHC 81.

consequence. However, having now seen the starting points set yesterday by Woodhouse J, I consider a 12-month reduction for Mr McKinley and Mr Broxton, and a nine-month reduction for Ms Morris are appropriate.

[22] As a consequence, the starting points for Mr McKinley and Mr Broxton are reduced to four years and six months’ imprisonment and that for Ms Morris to two years and three months’ imprisonment.

[23] As for the starting point for you, Mr Hill, setting it by reference to the adjusted starting points for Mr McKinley and Mr Broxton, I consider a starting point of four years’ imprisonment is appropriate.

[24] You sold a total of 63,086 pills, 33,254 over a six-month period and 29,832 over a nine-month period. This offending is of significant commerciality and falls within band three of Terewi,⁸ which has been recognised as an appropriate reference point, if not a tariff. At one level, that of pills sold, your offending is of the same scale as that of Mr McKinley. Whether or not you made any money, Ms Clark pointed out yesterday, the fact you were able to invest $600,000 in the venture strongly suggests you were not doing it just as a service for a group of friends and acquaintances.

[25] That said, it is also the case that you were a smaller player in the overall operation than Mr McKinley. It was Mr McKinley’s activities that were the focus of the original Operation Greenstone investigation. I consider, therefore, that some differential in starting points is appropriate.

Delay and time spent on bail

[26] You were all arrested and charged on 28 August 2012. Mr McKinley, as well as Ms Morris and Mr Hill have been on bail awaiting trial since then. This is a period of five years and seven months. Your counsel have all urged me to give you a discount of 25 per cent to recognise and remedy this delay as a breach of the right to be tried without undue delay, as guaranteed by s 25(b) of the New Zealand Bill of Rights Act 1990. Mr Olsen upped that to 14 months in his submissions today.

⁸ R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 (CA).

[27] The right to be tried without undue delay “is directed to the time that elapses between arrest and final disposition”⁹ and is “a function of time, cause and circumstance”.¹⁰ You possess that right and if there has been a breach you are entitled to an appropriate remedy on the basis that even a defendant who pleads guilty, facing conviction and punishment, should not have to undergo the additional punishment of protracted delay, with all the implications it may have for his or her health and family life.¹¹

[28] In R v Cho, Palmer J considered an application for a stay brought by defendants in the Operation Ark 2 offending on the basis that they had suffered an undue delay in being brought to trial.¹² In declining the stay Palmer J found that the delay was undue but that the appropriate remedy would be a discount at sentencing if convicted.¹³

[29] The delay in Cho was six years and three months as those defendants were arrested upon the termination of Operation Ark 5 in November 2011. I consider the circumstances are highly analogous, even if the period of delay in that case was slightly longer. Accordingly, I adopt Palmer J’s reasoning. I accept there was an undue delay from your perspective as an accused, whatever the validity of the reasons for the delay.

[30] The Crown has argued that any discount for delay should be minimal. Ms Clark points to the fact that in June 2013 you and the other defendants opposed the Crown’s application to join the Operation Ark 1 and Operation Greenstone trials before a judge alone. She says that you declined the opportunity to be tried earlier rather than later and, by implication, there is a suggestion that you are at least partly responsible for the delay.

[31] However, as I observed yesterday, the decision not to join the trials was taken by Cooper J who, as is clear from his judgment, accepted the argument by a number

⁹ Williams v R [2009] NZSC 41, [2009] 2 NZLR 750 at [10].

¹⁰ At [12].

¹¹ Attorney General's Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 AC 72 at [16].

¹² R v Cho [2017] NZHC 3036.

¹³ At [40]. While Palmer J stated that the proportionate response to the undue delay is “best made in considering any sentences that result from convictions at trial”, there is no reason that this should not extend to consideration of the sentence from a guilty plea.

of the defendants that to join the two sets of proceedings risked prejudice to defendants whose conduct was reached only at the end of a very long trial when their role in events may have been of a comparatively minor nature.¹⁴ That conclusion is apposite to your situations. It follows that I do not accept that this should count against you.

[32] Because of the delay you have been on bail for the last five years and seven months. During this time, you have been subject to various curfews, non-association conditions and restrictions from travelling outside New Zealand, and a number of other restrictions and requirements that applied, especially in the early months following the arrests. These have been a constraint on your lives as your affidavits and letters attest.

[33] I see this as an aspect of the delay and not as a distinct consideration warranting a separate discount. As the Supreme Court stated in Williams v R in the context of the remedy for undue delay:¹⁵

[18] The remedy for undue delay in an accused coming to trial must provide a reasonable and proportionate response to that delay... If an accused is convicted after being on bail pending trial, a reduction in the term of imprisonment is likely to be the appropriate remedy.

(emphasis added)

[34] In other words, the two issues run together. Moreover, while I accept that the bail conditions have been an unwelcome constraint, as your affidavits, references and pre-sentence reports also make clear, these conditions have not prevented you from carrying on with your lives, establishing new relationships and friendships, and indeed starting your own businesses.

[35] For all of these reasons, I consider that a further discount should be made to take account both of the delay and of the fact you have been on bail for the past five years and seven months.

[36] In his sentencing yesterday, Woodhouse J set a base allowance of a 12-month deduction for delay which he then factored that into overall allowances for personal

¹⁴ R v Chase & Ors [2013] NZHC 1964 at [69]

¹⁵ Williams v R [2009] NZSC 41, [2009] 2 NZLR 750 at [18].

circumstances. I consider I should make the same level of allowance for Mr McKinley, Mr Broxton and Mr Hill, even if I approach the calculation of each sentence on a more segmented basis. I consider an allowance of eight months is appropriate for Ms Morris given her significantly lower starting point.

Guilty pleas

[37] At the sentence indication, I offered a discount of 25 per cent for your guilty pleas on the basis that February was the earliest opportunity to plead, having regard to your need to consider the impact of the Supreme Court decision in Cameron that was handed down in June 2017, and, in particular, its implications for the possible defences you might run at trial. I considered that discount was consistent with the Supreme Court’s decision in Hessell v R which emphasised that a plea should be seen as early when an accused pleads as soon as he or she has had the opportunity to be informed of all of the implications of the plea.¹⁶

[38] Another factor in setting the discount at 25 per cent was to take account of the possibility that if the trial went ahead you would be held only to the lesser mens rea standard of recklessness. As indicated I am now making a separate reduction to the starting points to take account of this consideration – which means there is an element of double credit in the 25 percent discount for the guilty plea. On the other hand, in his sentencing yesterday Woodhouse J gave both reduced starting points based on recklessness as well as 25 per cent discounts for guilty pleas, so I let that pass.

[39] Mr Hill, you get the benefit of the same 25 per cent discount as the others for the same reasons.

Personal circumstances

[40] I consider now the personal circumstances of each of you.

[41] While the Court of Appeal has held that deterrence of commercial-scale drug offending requires that personal circumstances should assume less significance in

¹⁶ Hessell v R [2010] NZSC 135 at [65] and [75].

sentencing,¹⁷ it has also been recognised that there remains room for compassion and recognition in exceptional cases.¹⁸

[42] One of the conspicuous features of this sentencing is that it is taking place so long after the offending itself. As a consequence, the Court has the opportunity to assess the circumstances and demeanour of defendants who have had considerable time to reflect on your offending and to demonstrate whether you are both remorseful and are committed to leading more productive lives. I consider these are matters that should be taken into account, consistently with promoting in each of you a sense of responsibility for, and an acknowledgement of the harm you have done, and assisting in your rehabilitation and reintegration. These are the purposes set out in s 7(1)(b) and
(h) of the Sentencing Act 2002. Of course, I need also to take into account the other purposes and principles in ss 7 and 8 of the Act.

Mr McKinley

[43] Your affidavit and the pre-sentence report show that you are remorseful for your actions, that you accept what you did was wrong and recognise that it has consequences and that you also accept you need to pay your debt to society.

[44] You have made substantial changes in your life, including successfully working through your drug addiction to the point you now consider yourself drug free. You have complied with your bail conditions and you have not reoffended. You are also in a new relationship and are living a more structured life. You have produced letters that attest to your constructive engagement with and concern for others.

[45] You have been successfully running your own business as a qualified drain layer and had also been employing others until closing the business in anticipation of your sentencing. However, you intend to restart the business when you can.

17. R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 (CA) at [13]; R v Wallace [1999] NZCA 89; [1999] 3 NZLR 159 (CA) at [25]; R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [12]–[13].

¹⁸ R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [14]; R v Piahana [2017] NZHC 2763 at [22].

[46] All of these are positive developments pointing to your remorse and recovery and warrant consideration in the context of your sentence. For these reasons, I apply a discount of 10 months to take account of your personal circumstances.

[47] Taking into account the reduced starting point of four years and six months and the discount of 12 months for delay, this brings your sentence to 2 years and 8 months’ imprisonment, before applying the 25 per cent discount for your guilty plea. Once that discount is applied, your sentence is two years’ imprisonment. This means you are eligible for home detention for which the pre-sentence report says you are suitable.

[48] While, because of time considerations, we do not have a full report assessing the suitability of your current residence for home detention, Corrections did consider it as suitable for electronic monitoring when reviewed in 2015. While I take the point that Ms Clark made that this is a little time ago, I still consider it is appropriate for me to sentence you to home detention at that address.

[49] The sentence, Mr McKinley, will be a sentence of 10 months’ home detention.

Mr Broxton

[50] You are a stonemason by trade and have been in this industry for approximately 15 years. You have managed to re-establish your business and you employ others. Your offending was precipitated by being emotionally vulnerable and financially challenged. Drug addiction has led to you losing your home and your partner. You were also negatively influenced by your co-offenders, whom you say you looked up to at the time. You are no longer in contact with these associates, and draw on those who have a positive impact on you, such as your partner who you describe as supportive. She has two young daughters, and she has written that you have become a father figure to them. You also have supportive and stable relationships with your parents and your siblings, who have been there during your rehabilitative efforts.

[51] The efforts you have made at rehabilitation on your own initiative are remarkable and must be both commended and recognised. The leaders of those programmes praise you highly. You have attended several in-house residential treatment programmes and continued with treatment activities afterwards. You are
also involved with volunteer work for organisations that support vulnerable children and animals. All of this indicates to me that you are serious about reclaiming your life and contributing to society

[52] The pre-sentence report assesses you as a low risk of re-offending and as a low risk of causing harm to others. Your letter of remorse to the Court shows your insight into the impact of your offending. I take note of your counsel’s submission that you, like your co-offenders, are a very different person from the individual who committed these offences some five and a half years ago.

[53] Looking at your prospects of and efforts towards rehabilitation and genuine remorse I am satisfied that it is appropriate to make a further discount of 12 months on your term of imprisonment.

[54] Taking into account the reduced starting point of four years and six months and the discount of 12 months for delay, this brings your sentence to 2 years and 8 months’ imprisonment, before applying the 25 per cent discount for your guilty plea. Once that discount is applied, your sentence is one year and 10 months’ imprisonment. This means you are eligible for home detention which the pre-sentence report recommends and for which it says you and your current address are suitable.

[55] Mr Broxton, the sentence will be a sentence of 8 months’ home detention.

Ms Morris

[56] Ms Morris, I understand that you moved into the home of a co-offender as a boarder, after which you became involved in this offending when the two of you started a relationship. You say that you were trying to extract yourself from the offending shortly before your arrest. You have done so since, however, married your co-offender who is no-longer subject to Community Corrections oversight. You have both moved away from the scene of your previous offending.

[57] The pre-sentence report writer assesses you as genuine in your remorse and regret, and you continue to reiterate that you did not receive the financial gain alleged by the Crown. Your only identified offending-related need is said to be your
“offending supportive associates”, and you do not meet any criteria for rehabilitative programmes. The report writer considers it is unlikely you will be drawn into such behaviours again. You have been employed in an accounts and administrative role for five months. Your employer compliments your work ethic and describes you as a highly valued employee. Your employer does not see any issue with your employment arising from this sentencing, and is indeed willing to accommodate a sentence of home detention.

[58] I accept that you are embarrassed and remorseful for your role in this offending, and your rather vulnerable position in the relationship appears to have been exploited. Given these considerations, a positive pre-sentence report that assesses you as highly unlikely to come before the Courts again, your previous good character and your compliance with your bail conditions, I consider a further five months’ reduction is appropriate.

[59] Taking into account the reduced starting point of two years and three months and the discount of nine months for delay, this brings your sentence to one year’s imprisonment, before applying the 25 per cent discount for your guilty plea. Once that discount is applied, your sentence is 9 months’ imprisonment. This means you are eligible for home detention, which the pre-sentence report recommends and for which it says you and your current address are suitable, and also for community detention, which your counsel has urged upon me.

[60] Ms Morris, the sentence will be six months of community detention.

Mr Hill

[61] Mr Hill, you migrated to New Zealand from the Philippines at the age of five. You lost interest in secondary school at about 17 years old, and worked first as a plumber and then as a labourer. Your offending was driven by immediate gratification and disregard for long term consequences.

[62] I put to one side your previous convictions, as you last appeared before the Courts in 2010. Your previous offending involved dishonesty, violence, and non- compliance related offending. However, the pre-sentence report notes that you have
developed insight into factors which contribute to your offending, which included a harmful pattern of alcohol consumption and pill use. That said, the report also assesses you as a medium risk of re-offending.

[63] You self-report as motivated to attend rehabilitative programmes. You completed a building apprenticeship two years ago, and have worked as a sole trader for approximately three years. You have changed your attitudes and acknowledge that this offending has consumed your entire twenties.

[64] You have produced an impressive array of letters from family, employers and others you have worked with, friends and supporters who attest to your remorse, your determination to pursue a different course and their confidence of your doing so.

[65] The report writer also notes that “age is likely to have played an influence in this shift in attitude”. I accept that as a fair assessment. You were 22 at the time of the offending, and were arrested two months after your 23rd birthday. Youth discounts are available, where appropriate, to recognise neurological differences which mean that young people, until their mid-twenties, have reduced decision making and greater prospects for rehabilitation.¹⁹

[66] Given all of these considerations, particularly your efforts at rehabilitation, your genuine remorse, and your relative youth I consider that a further discount of 9 months is appropriate.

[67] Taking into account the starting point of four years and the discount of 12 months for delay, this brings your sentence to two years and three months’ imprisonment, before applying the 25 per cent discount for your guilty plea. Once that discount is applied, your sentence is one year and 8 months’ imprisonment. This means you are eligible for home detention which the pre-sentence report recommends and for which it says you and your current address are suitable. The report also recommends you should do some community work and I agree that is appropriate.

¹⁹ See Churchward v R [2011] NZCA 531 at [76]- [92] per Lawson v Police [2016] NZHC 1158 at [32], where Davison J held that 22 is an age where can still be described as young, at [35], but declined to give a youth discount as had been offending since he was 17.

[68] Mr Hill, the sentence will be a sentence of 6 months’ home detention and 150 hours of community work.

Conclusion

[69] Would the defendants please stand.

[70] Mr McKinley, you are sentenced to a term of 10 months’ home detention.

[71] Mr Broxton, you are sentenced to a term of 8 months’ home detention.

[72] Ms Morris, you are sentenced to 6 months’ community detention.

[73] Mr Hill, you are sentenced to a term of 6 months’ home detention and 150 hours of community work.

[74] In each case, these sentences are subject to the conditions set out in the relevant pre-sentence reports. This means, in Mr McKinley’s case, the conditions recommended by the Department of Corrections in their note to me dated 28 March 2018. I waive the no alcohol conditions, however, with respect to Mr McKinley and Ms Morris as the pre-sentence reports do not suggest there are have been issues with respect to alcohol use in their cases.

[75] I also direct that Mr Kinley, Mr Broxton and Mr Hill should be permitted to work while they are serving their sentences.

[76] You may stand down.

van Bohemen J