Herk v Police
[2025] NZHC 1183
•15 May 2025
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CRI-2025-442-000009
[2025] NZHC 1183
BETWEEN RORY RICHARD HERK
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 1 May 2025 Appearances:
E J Riddell for Appellant
D W Baxter for Respondent
Judgment:
15 May 2025
JUDGMENT OF PRESTON J
This is a redacted version of the judgment for publication
This judgment was delivered by me on 15 May 2025 at 3.00 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
HERK v NEW ZEALAND POLICE [2025] NZHC 1183 [15 May 2025]
Introduction
[1] Rory Richard Herk (age 42) appeals, as manifestly excessive, the sentence imposed by Judge Snell in the District Court of two years’ and nine months’ imprisonment on the following charges:1
(a)possession for supply of a class C controlled drug, namely cannabis;2
(b)possession of a class A controlled drug, namely methamphetamine;3
(c)possession of a drug utensil;4
(d)possession of a class C controlled drug, namely cannabis;5
(e)dangerous driving;6
(f)driving while suspended (third or subsequent) (x 3);7
(g)dishonestly using a vehicle;8
(h)unlawfully getting onto a motorbike;9
(i)without lawful authority having an offensive weapon in public (x 2);10
(j)carrying an imitation firearm;11
(k)failing to answer bail (x 3);12
1 NZ Police v Herk [2024] NZDC 25679.
2 Misuse of Drugs Act, s 6(1)(f); maximum penalty eight years’ imprisonment.
3 Section 7(1)(a) and subs (2); maximum penalty six months’ imprisonment or $1,000 fine.
4 Section 13(1)(a) and subs (3); maximum penalty one year imprisonment or $500 fine.
5 Section 7(1)(a) and subs (2); maximum penalty three months’ imprisonment or $500 fine.
6 Land Transport Act 1998, s 35(1)(b); maximum penalty three months’ imprisonment or $4,500 fine.
7 Section 32(1)(c) and subs (4); maximum penalty two years’ imprisonment or $6,000 fine.
8 Crimes Act 1961, s 226(1); maximum penalty seven years’ imprisonment.
9 Section 226(2); maximum penalty two years’ imprisonment.
10 Section 202A(4)(a); maximum penalty three years’ imprisonment.
11 Arms Act 1983, s 46(1); maximum penalty one year imprisonment or $4,000 fine.
12 Bail Act 2000, s 38(b); maximum penalty one year imprisonment or $2,000 fine.
A spree of offending
[2] The offending commenced initially with three driving incidents over two weeks in December 2023, before further various offending on four separate occasions in March, April, June and July 2024.
[3] Over this latter period, having been granted bail on the charges he was then facing, Mr Herk also failed to answer his bail on three separate occasions.
[4] I adopt the outline of the offending as set out in the Judge’s sentencing remarks:13
…
[2] The factual circumstances of his alleged offending start off with the dangerous driving charge. The defendant was driving on State Highway 60 which is the coastal highway in the main arterial route between Richmond and Motueka. The posted speed limit was 80 kilometres per hour. The defendant was riding a motorbike and locked by police on radar at 173 kilometres per hour which is quite a bit over double the speed limit. The police attempted to stop the defendant by following him with red and blue flashing lights and a siren, but it is potentially possible that he did not see the police car and he was not stopped until about two kilometres further up the road by another police car that was stationed there.
[3] The next summary in relation to matters relates to driving whilst suspended or revoked. The defendant has three previous convictions relating to the offence of driving whilst disqualified, suspended or revoked. On Tuesday, 12 December 2023, he was suspended from driving a motor vehicle until Tuesday, 9 January for driving at excessive speed as I have already indicated. On 24 December, ignoring that 28-day suspension, the defendant was the driver and sole occupant of a Mitsubishi Diamante motor vehicle. This, too, was stopped for speeding. He was travelling at 128 kilometres per hour in a 100 kilometre per hour zone, also on the coastal highway near Māpua. He was stopped. Checks confirmed that he was suspended from the earlier driving incident.
[4] The next matter is another driving whilst suspended and this occurred just a few days later at 3.18 am in the morning on 31 December. The defendant was driving a Mitsubishi motor vehicle on Sandhurst Drive on Papamoa Beach. He provided his details and inquiries had confirmed that he was a suspended driver.
[5] The next matter relates to the possession of an offensive weapon, possession of cannabis plant simpliciter, the unlawful carrying of an imitation firearm and the unlawful getting into, or onto, a motor vehicle. This relates to the defendant and his association with a motorbike, a KTM Duke 390, registration number [redacted]. That was reported stolen on [12] March. At
13 NZ Police v Herk, above n 1, at [2]–[10].
about 11.20 am on Monday, 18 March, so very shortly after it had been stolen, the defendant was at Lady Elizabeth Lane in Wellington. He was standing next to the parked motorbike, the motorbike had no registration plate. The motorbike had the defendant’s jacket and helmet on it. He had ridden that motorbike to Lady Elizabeth Lane in Wellington from Tauranga.
[6] Inquiries into the motorbike’s VIN number revealed the registration plate to be [redacted] and it was noted that this was a stolen motorbike. The defendant was searched pursuant to his arrest and he had 8.46 grams of cannabis on him. He also had a homemade hatchet in his backpack and a black and silver spraypainted BB gun. The defendant had no lawful authority or reasonable excuse to be in possession of the homemade hatchet, nor did he have any lawful authority, proper or sufficient purpose to carry the spraypainted BB gun. In explanation, the defendant stated that he saw the KTM motorbike in the driveway of a drug house with a bolt on the ignition and he took it. He said that he carried the homemade hatchet and BB gun to use when he took drugs from drug dealers.
[7] In terms of the next matter in time, this relates to the unlawful taking of a motor vehicle. At about 9.30 am on 12 April 2024, the victim was in town. She had driven her Toyota Corolla into town and had gone to the Westpac bank in the Richmond Mall. Regrettably, the keys to that car had fallen out of her pocket onto the seat in the waiting area. About eight minutes after she had been there, the defendant entered the Westpac bank and saw the keys on the seat. He sat next to the keys for approximately 10 seconds before picking them up and leaving the bank. He exited the mall and entered the carpark pressing the buttons on the keys. The victim’s vehicle lights flashed on as the defendant walked past. Approximately eight minutes later, the defendant entered the victim’s vehicle and left the carpark in that vehicle. I note that there was no loss because that vehicle was recovered relatively soon after it had been taken.
[8] The next matter relates to possession of methamphetamine and a utensil for the consumption of methamphetamine. On 16 June 2024, the defendant was the passenger in a Nissan Navara motor vehicle being driven on Gascoigne Street in Blenheim. The vehicle was stopped by police and a search of the vehicle was undertaken. Located in the defendant’s bag was a clear snap lock bag containing about 0.2 grams of methamphetamine, and located in the centre console of the vehicle was a glass methamphetamine pipe which he is charged with on the basis that it is for personal consumption.
[9] The next matters occurred in relation to the driving suspended, possession for supply of cannabis plant and possession of an offensive weapon. The defendant on 12 December was stopped and suspended from driving until 9 January. Again, he was then suspended further after that. The circumstances that occurred on this occasion are that on Thursday 11 July, police observed a red motorbike travelling towards the Upper Moutere township near Neudorf Road in Tasman. The motorbike had no number plate. Police attempted to get close to the motorbike to stop it but it disappeared from view. Police patrolled the general area to no avail. About 20 minutes later, a resident from Upper Moutere contacted police after they discovered a person on their property with a motorbike. The rider initially spoke to the resident, discarding his backpack before picking it up and riding off back to the Moutere Highway and headed south towards Richmond.
[10] A police patrol has waited outside the cider brewery on the Moutere Highway where they observed the rider of the bike, activated their red and blue flashing lights and the rider stopped nearby. The rider had his backpack on and placed it at his feet while talking to police. Police confirmed the identity of the rider as the defendant, he had bail conditions not to drive a motor vehicle and he was also suspended from driving at the time. He was subsequently arrested and transported to Nelson Police Station along with his property. Whilst being processed, his bag was checked and police located a large zip lock bag containing cannabis head material, digital scales, a large knife with an approximate 150 millimetre curved blade, an overall length of 290 millimetres, and a laptop computer. The cannabis was weighed and it weighed 202 grams, or 7.12 ounces. The defendant acknowledged that the cannabis and contents of the bag were his.
The sentencing
[5] Mr Herk’s counsel in the District Court (not counsel on the appeal) contended for “[a]n end sentence of around 21.2 - 23.1 months imprisonment and 27.5 months - 30 months [as] not out of range”.14 Counsel sought credit of 15 to 20 per cent for guilty pleas and a further deduction on the basis that Mr Herk’s opiate and cannabis addiction was linked to the offending.
[6] The Judge regarded the possession of cannabis for supply the lead offence, adopting a two-year starting point. He placed the offending at the lower end of category two of Terewi15 as a commercial possession for supply, observing:16
The aggravating features of that matter are the possession of scales, the knife and the 202 grams of head material in the snap lock bag. I note that subsequent searches have indicated the carriage of weapons on more than one occasion and cash.
[7] Turning then to analyse the other offending, the Judge applied (totality adjusted) uplifts for these, as follows:
14 With particular reference to, but without further comparative analysis applying the cases to Mr Herk’s case: Smith v R [2022] NZCA 606; Shufflebotham v NZ Police [2015] NZHC 3114; Hunuhunu v NZ Police [2013] NZHC 1746; NZ Police v Campbell [2017] NZDC 19556; Police v Clements [2017] NZDC 2578; Police v Tahapeehi [2016] NZDC 17256; Wright v Police [2012] NZHC 493; Ratu v Police [2022] NZHC 3450; Police v Davis [2016] NZDC 17338; R v Emery [2012] NZHC 2933; Hare-Hure v Police [2023] NZHC 3456; and Woodstock v Police [2019] NZHC 2070.
15 R v Terewi [1999] 3 NZLR 62 (CA).
16 NZ Police v Herk, above n 1, at [18].
(a)six-month uplift for the three offences of driving whilst disqualified (third or subsequent), having regard to the comments of Whata J in Samson,17 and noting “[the appellant] was utterly in disregard of being suspended, he was ignoring matters and continuing to offend on bail”;
(b)six-month uplift for the unlawful taking of the motor vehicle and unlawfully getting onto a motorbike;18
(c)two-month uplift for the weapons charges; and
(d)a further two months for dangerous driving, possession of cannabis, possession of methamphetamine, possession of a drug utensil and the three failures to answer bail.
[8] This added to three years’ four months’ imprisonment. The Judge considered that, before adjustment for totality, together with all the other offending in the spree a combined starting point of five years would have been indicated.
[9] There was a further uplift of four months applied to reflect the aggravating features of the offending: Mr Herk’s previous offending (34 previous convictions) and the fact that a significant proportion of the current offending was committed on bail.
[10] Observing that Mr Herk’s guilty pleas were not entered at the earliest stage in relation to most of the offending, the Judge allowed a 17 and a half per cent deduction as a midway point between the range of 15 and 20 per cent which he deemed appropriate.
[11] The Judge declined to grant the 25 to 30 per cent deduction Mr Herk sought in respect of his addiction and head injury. He considered Mr Herk’s addiction lacked the necessary causal nexus to the offending:19
17 Having regard to Whata J’s comments in Samson v Police [2015] NZHC 748.
18 Adjusted from an indicative starting point of 20 months for the two offences.
19 NZ Police v Herk, above n 1, at [26]; see also Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
This was the defendant on an initial binge of drug use, I do not know whether he was using drugs in a lot of the other offending. He clearly has a background of drug use with cannabis and methamphetamine, but I am not so sure that that is causative of his offending and has a genuine nexus such as that contemplated in Zhang where someone is involved in drug dealing as a way of facilitating their drug addiction. This is quite different, this is a spree of offending which not all of (sic) was committed under the influence of drugs, although I accept some was.
[12] The Judge noted he had only “minimal” information on the impact of the head injury on the offending, but accepted it would make Mr Herk more impulsive, particularly when exacerbated by methamphetamine use, affording 10 per cent reduction on this basis. The combined deductions of 27 and a half per cent (of three years four months), equalling 11 months, were deducted from the three years eight months adjusted starting point resulting in an end sentence of two years’ nine months’ imprisonment.20
[13] Mr Herk was disqualified from holding a driver’s licence for a period of two years from sentencing date to account for the dangerous driving and driving whilst suspended charges, and various offences committed whilst driving in breach of bail and orders not to be driving a motor vehicle.
Approach on sentence appeal
[14] An appeal against sentence must only be allowed if the court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.21 The court must dismiss the appeal in any other case.22
[15] In determining whether a sentence is manifestly excessive, the focus is on the sentence actually imposed, rather than the process by which the sentence is reached.23 The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.
20 The end sentence was imposed on the possession of cannabis for supply, with all other charges to be served concurrently: six months on each driving while disqualified charge; and two months on all other charges.
21 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
22 Criminal Procedural Act 2011, s 250(3).23 Tutakangahau v R, above n 21, at [36]. See also R v Smyth [2017] NZCA 530 citing R v Terewi,
above n 15.
Appeal out of time
[16] The appeal was filed out of time.24 Ms Riddell explained this was due to Mr Herk instructing new counsel and time being required to consider the sentencing decision. Mr Baxter for the respondent did not oppose.
[17]It is appropriate to extend time in the interests of justice.25
Parties’ positions
[18]Mr Herk challenges the sentence as manifestly excessive.
[19] Ms Riddell on his behalf argues the starting point for possession of cannabis for supply was too high, as were the uplifts for most of the other charges (some are not challenged), and insufficient credit was given for personal mitigating factors.
[20] The respondent supports the starting point as available and appropriate on the facts, consistent with Terewi, Mr Baxter citing Connolly v R and Crouch v Police in support.26 Counsel submits the combined totality adjusted uplifts as not manifestly excessive and given the aggravating features of the offending no error is disclosed by the four-month uplift in that regard. The deductions afforded were appropriately available, Mr Baxter submitting that while the appellant has a background of drug use, there was no evidence this was causative of his offending in the sense contemplated by the Court of Appeal in Zhang.27
Analysis
Was the starting point on the lead charge too high?
[21] The guideline judgment for cannabis offending, as the Judge recognised, is R v Terewi.28 Although Ms Riddell does not dispute the placement of the offending in category two of Terewi, she notes that the 2017 Court of Appeal decision of Smyth has
24 The notice of appeal was lodged 6 weeks out of time.
25 Criminal Procedure Act 2011, ss 244(1) and 248(4)(a).
26 R v Terewi, above n 15; Connolly v R [2022] NZCA 499; and Crouch v Police [2025] NZHC 739.
27 Zhang v R, above n 19.
28 R v Terewi, above n 15.
stated that authority may be outdated and should be reconsidered.29 However, that case, and a 2022 decision of that Court in Smith both declined to overturn Terewi.30 In light of this it is not open for this Court to determine whether Terewi remains good law.
[22]Category two of Terewi:31
… encompasses small-scale cultivation of cannabis plant for commercial purpose, [i.e.] with the object of deriving profit. The starting point for sentencing is generally between two and four years but where sales are infrequent and of very limited extent a lower starting point may be justified.
[23] Ms Riddell is correct that a guideline judgment is not to be applied in a mechanistic way32—and I highlight Terewi explicitly allows for such discretion.33 The question is whether the Judge did so in this case, in fixing a starting point of two years with reference to Terewi. I am not persuaded he did.
[24] Ms Riddell contends the starting point was too high, on the facts here. She argues a starting point of 15 months’ imprisonment is appropriate, citing four cases in support: Devereux v Police,34 Mowberry v R,35 R v McGilp,36 and R v Rauhihi.37
[25] I adopt counsel’s summary, with some amendment, of the first three cases as were set out by the Court of Appeal in Smith v R:38
(a)Devereux v Police—one of the appellants was found in possession of
110.74 grams of cannabis alongside scales, $3,120 in cash, a knife and a BB gun. There could be “no question of the commerciality”, albeit “low level”.39 Mander J considered a starting point of 18 months’
29 Smyth v R, above n 23, at [17].
30 Smith v R [2022] NZCA 606 at [12] which held Terewi should “apply as originally formulated.”
31 R v Terewi, above n 15, at [4].
32 Zhang v R, above n 19,at [48].
33 R v Terewi, above n 15, at [4]. This has been reiterated in R v Edmonds CA23/02, 28 May 2002 at [9] and R v McGilp (2006) 23 CRNZ 526 (CA) at [19].
34 Devereux v Police [2017] NZHC 167.
35 Mowberry v R [2012] NZHC 969.
36 R v McGilp, above n 33, at [3].
37 R v Rauhihi HC Palmerston North CRI-2008-031-1438, 1 May 2009.
38 Smith v R, above n 30, at [16].
39 At [34].
imprisonment appropriate.40 A six-month uplift was applied to reflect the presence of weapons.
(b)Mowberry v R41—police seized a total of 57 cannabis plants from the appellant’s address. While the appellant purported that it was for personal use, Gendall J agreed with the sentencing judge that the potential yield of cannabis was too great to be only for personal use.42 Taking into account the “basic” character of the operation and the “very minor” degree of commerciality, Gendall J adopted a starting point of 18 months’ imprisonment.43
(c)R v McGilp44—the appellant was found in possession of 201 grams of cannabis, 98 cannabis cuttings and 58 cannabis plants. The appellant’s brother’s diary recorded sales netting about $3,320, although the Judge found that $1,600 worth of sales were “inconclusive”.45 The Court did not disturb a starting point of “between 15 and 18 months’ imprisonment”.46 The low starting point was justified in this case because of exceptional circumstances being the appellant’s lack of previous convictions, insight into offending and wish to engage in employment.47
[26] In the fourth decision, R v Rauhihi48 the defendant was found with 29 growing cannabis plants, 16 mature plants hanging to dry, stumps of cannabis plants indicating a previous harvest, and a further 326 grams of cannabis material. Police also located a semi-automatic rifle and BB pistol at the address. The Judge considered the level of commerciality was small,49 imposing a sentence of 15 months’ imprisonment.50 A six- month uplift was applied to reflect the presence of firearms.
40 At [36].
41 Mowberry v R, above n 35.
42 At [3], [6] and [9].
43 At [10].
44 R v McGilp, above n 41, at [3].
45 At [3].
46 At [7] and [19].
47 At [6].
48 R v Rauhihi HC Palmerston North CRI-2008-031-001438, 1 May 2009.
49 At [20].
50 At [25].
[27] Mr Baxter submits the offending is most comparable to that in Connolly v R, where the appellant was found with a commercial quantity of cannabis—150 grams of dried cannabis head in five snap lock bags—along with electric scales.51 On appeal, Mr Connolly challenged the notional two year starting point adopted, which was adjusted for totality and applied as an uplift as the drug offending was incidental to the lead offending of arson and burglary. The Court of Appeal noted other cases in which a two-year starting point was adopted including lesser and greater amounts of cannabis head and/or plants, and noted, also, that there were also a number of cases of low-level dealing where lower starting points were adopted.52 The Court found that while a lower starting point could have been adopted, a starting point of up to two years was available.
[28] Here, Mr Herk was in possession of a greater amount of cannabis than in Connolly—over seven times the presumption for supply. Relevantly, he was also carrying a knife. It is true, as Ms Riddell submits, the case is not on all fours with the decision in Couch also cited by the respondent which involved an unloaded sawn-off shotgun kept in the appellant’s home where drugs were located. Nonetheless the 290mm knife, which Mr Herk explained as his “go to” knife, used for everything but which he didn’t realise was in his bag with the drugs, aggravated the offending as the Judge recognised.53 I note, also Mr Herk provided inconsistent explanations in relation to the knife to the probation officer and was subsequently found to be unlawfully in possession of two weapons, the hatchet and a BB gun which he admitted carrying to use when he took drugs from drug dealers.
[29] I conclude that the starting point for the possession of cannabis for supply, while it may be regarded as stern and noting the range of cases to which Ms Riddell refers where lower starting points were adopted or affirmed, nonetheless was available to the Judge in accordance with Terewi.
51 Connolly v R, above n 26, at [3]–[8]. Mr Connolly was also found to be in possession of 19 cannabis plants but was found not guilty on a charge of cultivation of cannabis.
52 At [33], that range being from six months to 18 months.
53 Crouch v Police, above n 26, at [2].
Were the uplifts for the remaining charges too high?
[30] The challenge to the uplifts for all the other offending is directed to the uplifts in respect of the two charges of unlawfully taking the motor vehicle in Tasman and unlawfully getting on the motorcycle, and the uplifts for the disqualified driving charges.
[31] As noted, Mr Herk does not dispute the two-month uplift for the weapons charges, nor the two-month uplift for dangerous driving, possession of cannabis simpliciter, possession of methamphetamine simpliciter and possession of the utensils, and the three discrete breaches of bail.
[32] As the respondent submits, the Judge’s indication was that absent the totality adjustment the overall sentence would have been around five years. A totality adjustment of just over 55% was applied therefore, from the combined starting points for standalone offences.
Unlawful taking charges
[33] Ms Riddell next submits the Judge erred in finding a notional starting point of 16 months’ imprisonment for the unlawful taking of the motor vehicle of the disabled driver. Counsel argues the notional starting point should have been nine months’ which should have then resulted in an uplift of less than six months’ imprisonment when combined with the charge of unlawfully getting upon the motorbike. Ms Riddell helpfully points me to numerous cases for this kind of offending.54 The submission appears to be that Mr Herk’s offending was less serious because the motor vehicle was only taken for a short time and the offence did not result in damage to the vehicle. However, Mr Herk brazenly took the victim’s keys and the car, which he confesses he only got out of when he noticed the disability card. Further, the unlawfully getting upon a motorbike charge was serious in the circumstances, given Mr Herk took the bike in Tauranga before driving it, without registration plate, from there to Wellington.
54 See for example O’Rourke v Police [2016] NZHC 273; Skeens v Police [2022] NZHC 875; and
Porter v R [2024] NZHC 1955.
[34] While the combined notional starting point of 20 months imprisonment may have been too high, for the reasons discussed the six-month uplift actually applied to reflect both vehicle dishonesty offences was within range and not manifestly excessive.
Disqualified driving uplift
[35] Ms Riddell submits the uplift of six months for driving the charges of driving whilst suspended was too high and should have been only a four-month uplift.
[36] As counsel identifies, at one stage of the sentencing remarks the Judge wrongly characterised these charges as Mr Herk’s fifth, sixth and seventh convictions, although as is seen in the excerpt set out at [3] above, earlier in his remarks Judge Snell noted the correct position: that Mr Herk had three previous convictions of this type. The later reference may be explained by the incorrect description with the summary of facts, which suggested there were four such previous convictions. In any event I do not consider any error is disclosed. While I accept there are key differences between the case of Samson v Police relied on by the Judge and Mr Herk’s offending, Ms Riddell did not point me to any more analogous case law on this issue.55 However when I consider previous cases with offences under s 32(1)(c) and 32(4) the notional starting point of eight to 10 months, with an applied uplift of six months for two offences is well within range.56
The uplift for offending on bail and previous convictions
[37] The Judge applied a four-month uplift for two aggravating features of the offending—prior (relevant) history and offending on bail and in breach of conditions.
[38] Ms Riddell challenges the uplift for the latter aspect as “stern”. She points to Mr Herk’s lack of recent convictions and that Mr Herk’s driving whilst disqualified convictions were already factored into the driving whilst suspended charges as was
55 Samson v Police, above n 17.
56 See for example Liaina v Police [2025] NZHC 568 where a 26-month starting point was considered appropriate for two driving whilst disqualified charges. See also Apiata v Police [2016] NZHC 3119 which contains an appendix of previous cases and starting points for this offending.
the fact it occurred on bail. Counsel also argues there is some double counting as the failure to answer bail charges were dealt with in a separate uplift. Ms Riddell argues a two-month uplift was appropriate for the offending whilst on bail, which she submits was the key aggravating factor in Mr Herk’s case.
[39] Mr Herk has 34 prior convictions; as the Judge described mainly for non- compliance, dishonesty, driving offending, and drug related. As noted, there are three previous convictions for driving whilst disqualified.
[40] Although the most recent previous offending was in 2017, it was plainly open to the Judge to factor this history into an uplift given the nature of Mr Herk’s various further offending. The uplift is further warranted for the offences which occurred on bail and proportionate given the very light uplift which was given for the three charges of failing to answer bail. Weighing these factors, I accept a combined four-month uplift was within range notwithstanding any appearance of double counting by the Judge given all offences across the seven-month spree, except the initial dangerous driving and two driving while suspended charges, were committed whilst Mr Herk was on bail.
Were insufficient reductions applied for personal mitigating factors?
Deductions
[41] The Judge applied a reduction of 27.5 per cent in respect of personal mitigating factors: 17.5 per cent for pleas and 10 per cent to recognise the contribution of Mr Herk’s previous head injury some eight to 10 years ago, particularly when exacerbated by use of methamphetamine. Ms Riddell submits the guilty plea credit was low but does not argue it should have been higher. However, counsel submits there was insufficient deduction for mitigating personal factors, which in total should have warranted a deduction of 35–40 per cent, in her submission arguing:
Mr Herk’s spree type offending involved poor decision making which was impulsive. The A&D report writer considered there was a link between his head injury and previous substance abuse and his offending. The offending was triggered by the death of someone close to him which caused him to completely go off the rails. It is clear there is a causal connection between what has occurred in his past and the offending and more discount could have been afforded for this.
[42] Mr Baxter submits there was no evidence that Mr Herk’s background of drug use was causative of the offending in the sense contemplated by Zhang.57
[43] I accept, as Mr Baxter argues, the Judge recognised the impact of the head injury and its effect appropriately in context:58
There is the head injury which I have minimal information about other than it makes this defendant more impulsive, particularly when exacerbated by drug use using methamphetamine. I would have thought each of those factors was relatively common sense.
[44] Elsewhere in his sentencing remarks the Judge referred to the addiction advice before the court, and noted that Mr Herk seems to have “an aspect of normalising his substance use” with an unusual cannabis habit that he has managed to control, and, similarly, has been using methamphetamine for a long period while often seemingly having that under control, albeit the Judge observed the use of those drugs is “utterly unhelpful to [Mr Herk’s] existence in the community.”59
[45] This offending began as noted with the three driving offences during December 2025, proximate to the personal loss which Mr Herk explained to the report writer triggered that behaviour. However, I note the extended period of time and the nature of the various offending thereafter and the aspects of Mr Herk’s substance use habits evident from the addiction material the Judge reviewed. Absent any clear evidence of causal connection between previous substance-abuse, his head-injury and the latter offending, I find no error was made by the Judge in allowing the 10 per cent deduction.
[46]No deduction was given for remorse or rehabilitative prospects.
[47] Ms Riddell points to Mr Herk’s remorse as demonstrated in the PAC report and a willingness to “put things right”. With the benefit of the late appeal, counsel referred also in written submissions to his noted positive conduct in Waikeria Prison and participation in a Drug Treatment Programme (DTP) there. At the hearing however, counsel clarified that this has not yet occurred, but that Mr Herk has undertaken other rehabilitative programme and is due to commence the DTP in June.
57 Zhang v R, above n 19.
58 NZ Police v Herk, above n 1, at [26].
59 At [13].
[48] Mr Baxter submits the mere expression of remorse does not automatically warrant credit and further deductions for remorse are not warranted in the circumstances with reference to the observation of the Court of Appeal in Kohu v R:60
It is now well established that a discrete discount for remorse will be appropriate where a “proper and robust evaluation of all the circumstances” demonstrates that an offender is remorseful. Remorse need not be extraordinary, although it must be genuine. The onus is on the defendant to show it is so. This Court has previously stated that it will look for “tangible evidence, such as engagement in restorative justice processes”. Other examples include the voluntary payment of reparation, and efforts to remedy harm to the community. Where established, remorse tends to attract a discrete discount of between five and 15 per cent.
[49] On rehabilitative prospects, Mr Baxter submits deductions should be reserved for those who have taken significant steps to rehabilitation and who provide they have taken meaningful steps to address their risk of reoffending.61 Mr Baxter does not consider Mr Herk’s willingness to rehabilitate as reaching the threshold of considerable rehabilitative work.
[50] On the one hand there were no concrete demonstrations of remorse beyond the repeated expressions of remorse to the report writers and expressed willingness to seek help and “put things right” to which Ms Riddell points.
[51] On the other hand, and given the significant period of time between Mr Herk’s previous offending and current offending, the signs of remorse were considered by the pre-sentence report writer as genuine and prospects of rehabilitation should be taken seriously. This Court has the benefit of further information not available to the Judge on that issue. Further, as the Judge recognised, Mr Herk was willing to undertake restorative justice and there was no information before the Court as to why this could not take place. Mr Herk does display promising rehabilitative prospects. He has a pro-social relationship with the mother of his two children. This partner is against Mr Herk’s drug use and was willing to have Mr Herk reside with her if he were given a community-based sentence or home detention. Mr Herk has previously worked as a
60 Kohu v R [2023] NZCA 343 at [40].
61 Berkland v R [2022] NZSC 143 at [159]–[160] where “exceptional” rehabilitative actions were afforded a 10 per cent deduction.
builder and has an offer of employment from a previous employer. These are pro- social and positive signs which give the Court some cautious confidence that Mr Herk, at 42 years of age, recognises that he must address these issues if he is not to find himself before the court again.
[52] In relation to Mr Herk’s rehabilitative prospects, he self-reported as being previously addicted to opiates following prescription of opiates for a knee injury, yet he was successfully able to undertake treatment on the methadone programme and reports as no longer suffering from this addiction. This previous display of motivation to change provides hope in Mr Herk’s ability to address his substance-abuse issues, which he is set to commence in June, as I am told.
[53] I have found this the most difficult aspect of the appeal. I accept counsel’s submission that Mr Herk’s remorse and rehabilitative prospects did warrant recognition, which I would indicate at five per cent. However, an adjustment of that magnitude could only be described as tinkering in the context of this appeal.
[54]Accordingly, the overall sentence is not shown to be manifestly excessive.
Result
[55]The appeal is dismissed.
………………………………………
Preston J
Solicitors:
Crown Solicitor, Nelson
Counsel:
E J Riddell, Barrister, Nelson
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