Bates v The King
[2025] NZHC 2082
•28 July 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2025-409-120 CRI-2025-409-121 [2025] NZHC 2082
BETWEEN THOMAS EDWARD BATES
Appellant
AND THE KING
Respondent
Hearing: 24 July 2025 Appearances: K Gray for Appellant
M W Fulton for Respondent
Judgment: 28 July 2025
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 28 July 2025 at 3.15 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
BATES v R [2025] NZHC 2082 [28 July 2025]
Introduction
[1] Thomas Bates appeals a sentence of two years’ imprisonment imposed by Judge Kellar on 20 May 20251 on charges of possession of an offensive weapon2 and causing grievous bodily harm with intent to injure.3 He says the Judge erred in uplifting his sentence for the previous conviction of possessing an offensive weapon, and that insufficient credit was given for mitigating factors, leading to a manifestly excessive end sentence.
Facts
[2] The facts leading to the charge of possession of an offensive weapon are that on 1 August 2024, the appellant was driving his vehicle in Christchurch. He had a disagreement with another road user. He stopped his vehicle at the intersection of Main North Road and Queen Elizabeth II Drive and left it with a metal fish bat in his hand. He ran after the other vehicle, which also came to a stop and the two occupants got out of their vehicle. The appellant approached them and raised the bat over his head. He waved the bat and his other hand in a threatening manner, before walking away.
[3] The facts of the wounding with intent to injure charge are that, on 18 October 2024, a Police Safety Order was served on the appellant, protecting the victim and his mother. The victim is the appellant’s nephew. At the time, the appellant was also subject to bail for the possession of an offensive weapon charge and to sentence for previous family violence offending.
[4] On 19 October 2024, the victim was walking his dog along a railway line in Redwood, Christchurch. The appellant and his two daughters were walking along the pathway. The appellant approached the victim from behind and yelled out “hey pussy”. The victim told the appellant that he did not want to fight in front of the appellant’s daughters. The victim and the appellant then pushed one another, before the victim told the appellant it wasn’t worth it and started to walk away. As the victim
1 R v Bates [2025] NZDC 11252.
2 Crimes Act 1961, s 202A(4)(a); maximum penalty three years’ imprisonment.
3 Section 188(2); maximum penalty seven years’ imprisonment.
turned away, the appellant struck him with a closed fist to the right-hand side of the face. The victim lost consciousness and woke a short time later on the footpath. The victim sustained a fractured jaw in two places and fractures to his right eye socket. The victim had to undergo facial reconstruction surgery and suffers ongoing harm as a result of the offending.
District Court decision
[5] The Court adopted a two and a half year starting point on the wounding with intent to injure charge, uplifted by six months on the possession of the offensive weapon charge, resulting in an adjusted starting point of three years. The appellant received deductions of 25 per cent for his guilty plea, five per cent for his remorse, five per cent for parental incarceration, and five per cent for background factors identified in the comprehensive Alcohol and Drug report (AOD report). The appellant received uplifts of five per cent for offending while on intensive supervision and bail and five per cent for his previous conviction of possession of an offensive weapon. The end sentence reflected the three-year starting point, reduced by a net deduction of 30 per cent and rounded down to two years due to the period the appellant had spent on EM bail awaiting the birth of his third child.
Principles on appeal
[6] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.4 As the Court of Appeal observed in Tutakangahau v R, with reference to the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.5 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.6
4 Criminal Procedure Act 2011, ss 250(2) and 250(3).
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
6 Ripia v R [2011] NZCA 101 at [15].
Alcohol and Drug report
[7] The comprehensive AOD report was supplied to the Court at sentencing. It records that the appellant has a pattern of problematic alcohol and drug use that has led to impulsive behaviours, poor decision-making, and involvement in violence. It says the appellant’s substance abuse and emotional dysregulation appear to be influenced by a range of developmental, psychological, and environmental factors, including childhood trauma and early disengagement from school. While the appellant reports no previous engagement with formal treatment, the report writers say he expressed a willingness to address the underlying issues contributing to his substance abuse.
Submissions
Appellant’s submissions
[8] Ms Gray, for the appellant, submits the Judge did not sufficiently account for the Mr Bates’ parental responsibilities. He has three children aged nine years, eight years, and six months old. Ms Gray refers to the Supreme Court’s decision in Philip v R, confirming that where the defendant is likely to be an important figure in the child’s life, a deduction may well be warranted to mitigate the consequential harm to the child.7 Additionally, parental responsibilities have been recognised by the Court of Appeal to enhance the defendant’s rehabilitative prospects.8 Consequently, Ms Gray submits Mr Bates’ extensive parental responsibilities warranted a higher deduction than five per cent.
[9] Ms Gray submits the AOD report raised several criminogenic issues around Mr Bates’ upbringing including violence, parental alcohol dependence and addiction, truancy, and trauma. She submits there is a causal connection between his upbringing and the offending and, with reliance on Carr, submits the five per cent deduction was insufficient to account for these factors.9 She seeks a deduction of 15 per cent.
7 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571 at [50]–[52].
8 Ah Tong v R [2024] NZCA 144 at [15].
9 Carr v R [2020] NZCA 357 at [60].
[10] In oral submissions Ms Gray also argued the deduction for remorse was insufficient. Mr Bates had done all he could to demonstrate remorse, including offering an emotional harm payment (which was not accepted), writing letters of apology and offering to attend restorative justice. Ms Gray points out that in Wynyard v R, the Court of Appeal said that deductions of up to 20 per cent could be afforded for remorse and reparations and if uplifted a 10 per cent deduction to 15 per cent in the circumstances of that case.10
[11] Ms Gray also submits no uplift was warranted for Mr Bates’ previous conviction for possession of an offensive weapon. She submits the starting point of six months on this charge already reflected that this was the appellant’s second sentence for this charge and met the legislative requirement for imprisonment on a second conviction as set out in s 202BA of the Crimes Act 1961. The five per cent uplift was also not warranted in light of the fact his sentence for the first conviction was only 40 hours community work and an order for destruction, and the uplift was applied to the entire sentence, not just the sentence for that charge.
Respondent’s submissions
[12] Ms Fulton, for the respondent, submits the deductions applied were appropriate, and the uplift justified. Further, with reference to case law, she submits it would have been open to the Judge to adopt greater starting points for the offences and consequently, the end sentence cannot be said to be outside the permissible range.
Analysis
Starting points
[13] While the appellant does not challenge the starting points on appeal, the respondent submits the starting points adopted could have been greater. As that is relevant to whether the end sentence is manifestly excessive, I consider this aspect of the Judge’s decision as well.
10 Wynyard v R [2023] NZCA 449 at [56].
[14] In respect of the wounding with intent to injure charge, the Judge properly relied on the Court of Appeal decision in Nuku v R, being the guideline judgment for offending under s 188(2).11 He noted the serious aggravating factor of an attack to the head and the moderately aggravating factors of serious injury and the fact the victim was attempting to leave when he was hit. Other aggravating factors were the breach of the Police Safety Order and the fact the violence occurred in front of the appellant’s two children. This combination clearly places it in the upper reaches of band two (up to three years’ imprisonment) or the lower reaches of band three (two to seven years’ imprisonment). Two years and six months was clearly within range.
[15] This is confirmed by the fact that in Rihia v R, where the defendant committed a one-punch assault in an argument with a known associate instantly rendering the victim unconscious, and the victim suffered a fractured skull, bruising to the brain and post-traumatic amnesia, a starting point of two years and six months’ imprisonment was imposed.12 Here, the level of harm sustained is comparable, but the offending has the additional factors of the breach of the Police Safety Order, the fact the victim was trying to leave, and that the offending occurred in the presence of the appellant’s children.
[16] Considering these additional aggravating factors, I am satisfied that the starting point of two years and six months was toward the lower end of the available range, but it overstates matters to describe it as “lenient”.
[17] On the charge of possession of an offensive weapon, the respondent relies on Sherlock v Police13 and Gray v Police14 to submit a starting point of approximately 12 months was appropriate. In Sherlock, an uplift of four months was adopted for the possession of an expandable baton found in the offender’s vehicle in a police search. In Gray, the offender was seen, at two different times, holding a weapon while verbally assaulting a victim. On one instance he held a long-handled sledgehammer above his head and the second time picked up a wooden broom and threatened to hit an officer with it. The Judge adopted starting points of nine and 10 months’ imprisonment for
11 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
12 Rihia v R [2016] NZCA 90.
13 Sherlock v Police [2021] NZHC 110.
14 Gray v Police HC Dunedin CRI-2011-412-33, 25 November 2011.
the respective charges of possession of an offensive weapon. These offences occurred when the maximum penalty was two years’ imprisonment, not three.
[18] It is difficult to find comparable cases where possession of an offensive weapon is a standalone charge. Cases which involve other charges tend to be unhelpful as the sentence imposed on that charge is constrained to reflect totality considerations. Here, the circumstances were less serious than Gray as the weapon was less inherently dangerous than a long handled sledgehammer and there was no threat to an officer. With reference to these cases, and having regard to the subsequent increase to the maximum penalty to three years, I again consider the sentence imposed was within range, albeit towards the lower end.
Parental incarceration
[19]The Judge adopted a five per cent deduction for parental incarceration.
[20] Deductions for parental incarceration can be provided to reflect the importance of children growing up in a familial environment, the remorse or rehabilitative steps taken, whether the defendant is the primary caregiver, the nature and seriousness of the offending, the loss of a supportive presence in the home, and the strength of the bond with the child and impact of imprisonment.15
[21] The Supreme Court has accepted that there may be other factors in this consideration which take primacy, including issues of inter-familial violence.16 For example, the Court of Appeal in Mau v R made no deduction for the impact of parental incarceration where the defendant was the subject of a protection order made in favour of his partner and children, he had two convictions for assaulting his partner and there were numerous family violence callouts to their home address.17
[22] Here, there is evidence of concern regarding the appellant’s family harm history. He was serving a sentence of intensive supervision at the time of offending
15 Allen v R [2024] NZHC 1972 at [38], citing Philip v R, above n 7, at [56]; T v R [2023] NZCA 221 at [25(b)]; and Johnson v Police [2023] NZHC 3748 at [22].
16 Philip v R, above n 7 at [56].
17 Mau v R [2021] NZCA 106 at [36]–[41].
for assaulting his partner. He has been the subject of 24 family harm callouts involving the same party. The family home was also deemed unsuitable for the purposes of a home detention sentence for reasons similar to those in Mau. I also note, as Ms Fulton points out that, the children are in the care of their mother and are in a familial environment with a supportive presence.
[23] Taking all these factors into consideration, and despite the appellant’s obvious involvement in his children’s life, I am satisfied that the five per cent deduction for parental incarceration given by the Judge was appropriate.
Remorse
[24] I accept that the appellant has taken a number of steps to demonstrate remorse, which qualify as tangible evidence of remorse beyond that inherent in his guilty plea.18 I also note that, where established, remorse can attract discrete deductions of between five and 15 per cent.19 Here the offers to make amends were not accepted by the victim meaning the appellant’s full commitment to making amends was not able to be assessed. That is not his fault. However, it means it is difficult to judge whether the remorse offered warrants a higher deduction than that given. I do not consider the Judge erred in only allowing a five per cent deduction for remorse.
Alcohol and drug report
[25] The appellant seeks a 15 per cent deduction for factors raised in the AOD report, relying on Carr v R and suggesting the five per cent awarded was insufficient.
[26] The assessment of an appropriate allowance to recognise matters in a s 27 report is very fact specific.20 Deductions for personal factors may be tempered by the heightened need to denounce the appellant’s conduct, to protect the community, and to recognise the lower likelihood of rehabilitation.21
18 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [24].
19 Poi v R [2015] NZCA 300; A v R [2018] NZHC 543; and Cavaney v R [2022] NZHC 1807.
20 Carr v R, above n 9, at [63].
21 Carroll v Police [2023] NZHC 3293 at [28].
[27] Here, I concur with the Judge’s conclusion that there was “a causative connection between background factors, relative lack of education, substance abuse and various other factors … outlined in the reports” with the current offending. However, that said, to the extent that his offending may be directly attributable to drug use at the time, that of course cannot be taken into account by virtue of s 9(3) of the Sentencing Act 2002. Nevertheless, there are a range of background factors which would explain his tendency to engage in violence and anti-social behaviour. In my view, a higher deduction could have been given for these background factors but I cannot say that five per cent was plainly too little.
Uplift for previous convictions
[28] A criminal history, in and of itself, does not justify an uplift. It must have a bearing on the blameworthiness of the present offending or the increased need for further deterrence.22 However, care must also be taken to ensure the uplift does not re-punish the defendant given the earlier offending will have already attracted a penalty. That said, an uplift of 6.7 per cent has been held to be within range23 and an uplift of 27 per cent lay “toward … the limit of what was permissible”.24
[29] The respondent submits that while the Judge appears to have imposed the five per cent uplift for the previous conviction of possession of an offensive weapon alone, the uplift is appropriate when considering all the appellant’s previous convictions.
[30] The Judge appears to have imposed this uplift solely because of the previous offensive weapon charge, as he states “some increase is warranted, given that you have a conviction for possession of an offensive weapon in 2023.”25 However, I am not satisfied it was warranted as a result of this conviction alone. If it had been, I consider the uplift would have been too high particularly in light of the sentence imposed on the earlier charges.26 However, Mr Bates has a reasonably extensive criminal history commencing in 2010 in the Youth Court. There are convictions for common assault,
22 Reedy v Police [2015] NZHC 1069 at [18].
23 R v Taitapanui [2021] NZCA 161 at [33].
24 Farrell v R [2024] NZCA 482 at [16].
25 R v Bates, above n 1, at [24].
26 Although that does not automatically mean the end sentence is excessive.
behaving threateningly, possessing an offensive weapon, assault on a person in a family relationship and aggravated robbery. Looking at his history of violence offending cumulatively, and in light of the further convictions for which he was sentenced, I do not consider the five per cent uplift was out of range.
Conclusion
[31] Looked at in totality, I am satisfied that the end sentence of two years’ imprisonment was not in error. While there are aspects of this sentence where the Judge could have considered a greater deduction (in particular, in relation to the matters traversed in the AOD report), the end sentence could not be described as manifestly excessive.
Result
[32]The appeal is dismissed.
Solicitors:
Crown Solicitor, Christchurch
Copy to:
K Gray, Barrister, Christchurch
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