Judkins v Police

[2025] NZHC 2900

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2025-476-15

[2025] NZHC 2900

MEGAN FRANCES JUDKINS

v

NEW ZEALAND POLICE

Hearing (via VMR):

2 October 2025

Counsel:

J B Lovely for Appellant

A M McRae for Respondent

Judgment:

2 October 2025

ORAL JUDGMENT OF GENDALL J

[Sentence appeal]

Introduction

[1]    The appellant, Ms Megan Judkins, appeals a sentence of two years and three months’ imprisonment imposed by Judge Savage on 24 June 2025 in the Timaru District Court following her conviction on charges of:1

(a)first, injuring with intent to injure;2

(b)second, resisting Police;3

1      Police v Judkins [2025] NZDC 15031.

2      Crimes Act 1961, s 189(2)—maximum penalty: five years’ imprisonment.

3      Summary Offences Act 1981, s 23(a)—maximum penalty: three months’ imprisonment or a fine not exceeding $2,000.

JUDKINS v NEW ZEALAND POLICE [2025] NZHC 2900 [2 October 2025]

(c)third, driving contrary to an alcohol interlock licence;4 and

(d)fourth, driving with excess breath alcohol (third or subsequent).5

[2]    Ms  Judkins  appeared  for  a  Judge-alone  trial  before  Judge  Savage  on  14 February 2025. At the commencement of the trial, Ms Judkins pleaded guilty to the driving charges. She was then found guilty of the injuring with intent to injure and resisting Police charges.6

Facts

[3]    Turning to the brief factual background in this matter, Ms Judkins and the victim are married. On 21 May 2024, the victim telephoned Ms Judkins to enquire as to her whereabouts. In the course of that telephone conversation, it became apparent to the victim that Ms Judkins had been drinking.7 At 4 pm, shortly after the telephone call, Ms Judkins drove and arrived at the family home in Timaru. Her car did not have an alcohol interlock device fitted, despite Ms Judkins being subject to an alcohol interlock device condition.

[4]    I adopt the summary of the facts as found by the Judge in relation to the injuring with intent to injure offending that occurred on Ms Judkins arriving back at her address:8

[10]A fearful argument developed between these two women and in the course of that argument, [Ms Judkins] upended a kitchen table, smashed a chair and kicked over a pot plant. I say with a degree of certainty that it was a fearful argument as a portion of it was captured in the 111 call the complainant felt compelled to make. It is clear [Ms Judkins] was in a highly agitated state and was acting belligerently and threateningly. It was not pretty to listen to.

[11]The complainant’s evidence was [Ms Judkins] pushed and slapped her around, punched her repeatedly, threw her against the kitchen bench and headbutted her. The injuries suffered … include a swelling to her head, a broken nose and a fat lip as well as various other abrasions.

4      Land Transport Act 1998, ss 31(1)(b) and 32(3)—maximum penalty: three months’ imprisonment or a fine not exceeding $1,000 and a mandatory six-month disqualification period.

5      Land Transport Act, s 56(1) and (4)—maximum penalty: two years’ imprisonment or a fine not exceeding $6,000 and a mandatory 12-month disqualification period.

6      Police v Judkins [2025] NZDC 19420.

7 At [8].

8      Police v Judkins, above n 6.

[5]    The summary of facts adds that Ms Judkins threw the victim against the rubbish bins, and that the physical attack lasted for approximately 30 minutes. After the assault, Ms Judkins decamped from the address in her car.

[6]    At approximately 6 pm that day, Police located Ms Judkins at her home address. Upon being informed she was under arrest, Ms Judkins became argumentative. Whilst being placed in handcuffs, she physically struggled and attempted to  break  free.  Three  officers  were  required  to  overcome  the  force  Ms Judkins exerted.

[7]    At the Timaru Police Station, Ms Judkins returned a result of 471 micrograms of alcohol per litre of breath on an evidential breath test, clearly this suggested she had driven earlier that day with excess breath alcohol.

District Court decision

[8]    Judge Savage in the District Court took the injuring with intent to injure charge as the lead charge. The Judge considered that Ms Judkins’ offending engaged four of the aggravating factors set out in Nuku v R, the guideline judgment for offences involving the infliction of violence other than offending under s 188(1) of the Crimes Act 1961.9 These were that Ms Judkins’ assault was prolonged, it involved an attack to the head, and it involved both a degree of breach of trust and vulnerability of the victim. The Judge came to a starting point of two years’ imprisonment.

[9]Turning to the other charges, Judge Savage said:10

… in my view, [the driving charges] are quite separate from the lead charge in that it would be a judicial error if I was to consider either no uplift or imposing concurrent sentences because that would mean there would be no sting for you for yet another drink-driving offence because it would have been subsumed by the sentence that you are going to get for the assault.

[10]   For the remaining charges, the  Judge  adopted  a  global  starting  point  of 13 months’ imprisonment that took into account Ms Judkins’ criminal history. The

9      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [41] confirmed that the aggravating factors set out in R v Taueki [2005] 3 NZLR 372 at [31] apply.

10 At [4].

Judge afforded a two-month deduction  from  that  starting  point  to  account  for  Ms Judkins’ guilty pleas, bringing the total starting point to 30 months’ imprisonment. The Judge reduced that to 28 months on a totality basis, and subtracted a further month for the time Ms Judkins spent on EM bail.

[11]   Ms Judkins was sentenced to 27 months’ imprisonment on the injuring with intent to injure charge; 12 months’ imprisonment on the driving with excess breath alcohol charge to be served concurrently; and one month of imprisonment also to be served concurrently on the charge of resisting Police. All fines, which I understand to be over $1,000 in total except for reparation, were remitted.

Principles on appeal

[12]   Turning now to the principles on appeal. 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.11 As the Court of Appeal stated in Tutakangahau v R, referencing 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”.12 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, and I refer to Ripia.13

The appeal

Appellant’s submissions

[13]Turning now to the submissions I have received.

[14]   Mr Lovely, for Ms Judkins, brings this appeal on two grounds. The first is that a concurrent sentence, rather than an uplift, should have been applied as the appropriate sentencing outcome. Mr Lovely submits that the Judge erred in

11     Criminal Procedure Act 2011, ss 250(2) and 250(3).

12     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

13     Ripia v R [2011] NZCA 101 at [15].

considering that it would be a “judicial error” if Ms Judkin’s other offences were sentenced concurrently or not recognised by an uplift. Mr Lovely accepts that the charges were “different in kind” but emphasises they form a “connected series of offences” for the purposes of s 84(1) and (2) of the Sentencing Act 2002. He highlights that there was no disconnect in time between the commission of Ms Judkins’ offending (it all having been committed on the night) and that the drink driving offending prompted the argument that led to the injuring with intent to injure charge, such that the offending was interconnected, and he cites the decision in Pryor v Police.14 Had sentencing been concurrent, Ms Judkins would have either been in the realm of a community-based sentence or time-served, which Mr Lovely submits is the least restrictive sentence.15

[15]   Mr Lovely contends also that a global starting point of two years’ imprisonment is appropriate for all charges—this feeds into his second ground of appeal that the starting point adopted by the Judge in respect of the charge of injuring with intent to injure was too high.16

Respondent’s submissions

[16]   Ms McCrae, for the respondent, opposes the appeal, submitting there is no error in the sentence imposed. She submits that this is not an occasion where adopting two starting points would run the risk of the final starting point being too high and highlights that the driving charges, as Mr Lovely seems to accept, are different in kind to the violence charges. Further, she maintains that the starting point of two years’ imprisonment for the injuring with intent to injure charge is within range.17

14     Citing Pryor v Police [2022] NZHC 1011.

15     Sentencing Act, s 8(1)(g).

16     By reference to the starting points adopted in Chok v Police [2017] NZHC 1738; and Murch v R

[2024] NZHC 1283.

17     Thompson v Police [2017] NZHC 3039.

Analysis

Concurrent or cumulative sentences?

[17]   Turning to my analysis in this matter, I look first at the issue of concurrent or cumulative sentences.

[18] states:	Section	84 of the Sentencing Act, as at the time of Ms Judkins’ offending,
84	Guidance on use of cumulative and concurrent sentences of imprisonment
(1)	Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.
(2)	Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.
(3)	In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—
(a)       the time at which they occurred; or
(b)       the overall nature of the offending; or
(c)       any other relationship between the offences that the court considers relevant.

[19]The learned authors of Adams on Criminal Law opine:18

The essential point to be determined under [s 84(1)] is whether the offences are “different in kind”. If they are, it is immaterial whether they are a “connected series” as defined in subs (3).

By contrast, concurrent sentencing is applicable where the offences are both similar in kind and form a connected series.19

18     Mathew Downs (ed) Adams on Criminal Law — Sentencing (online ed, Thomson Reuters) at [SAX84.02(1)].

19     At [SAX84.01].

[20]      In R v Wharewaka, this Court held that determining whether two or more offences are different or similar in kind entails “a factual common-sense appraisal of what…the ordinary sensible New Zealander [would] make of it”.20

[21]      Here, Judge Savage recognised that the driving offending was “quite separate from the lead charge”.21 Mr Lovely accepts that the charges being considered were different in kind. I agree that the drink driving offending is clearly different in kind from the injuring charge. On a commonsense appraisal, the violence Ms Judkins perpetrated against her wife and the driving with excess breath alcohol or contrary to an interlock license are clearly distinct forms of wrongdoing.

[22]      Mr Lovely’s primary submission is that Ms Judkins’ offending is interconnected and should have been dealt with together because the injury resulted from an argument triggered by Ms Judkin’s drink driving. However, it follows from counsel’s agreement and my finding that the charges are different in kind that the connectedness of the charges alone fails to establish that the Judge should have sentenced the drink driving offending concurrently.22

[23]      Nor does Pryor v Police, a case of this Court cited by Mr Lovely, assist his argument. In that case, his Honour Justice Lang accepted that the District Court Judge erred by treating two sets of charges as separate offending and adopting a starting point for each. The key reason the District Court Judge erred was that the drug offending in both incidents was similar in kind, even though it occurred on two separate occasions.23 For reasons I have outlined above, the offending in the present case is not similar in kind.

[24]      His Honour Justice Lang’s reasoning, in my view, tends to reinforce a conclusion that cumulative sentences in a case such as the present one were appropriate when he says:24

20     R v Wharewaka HC Auckland CRI-2004-092-4373, 28 April 2005 at [47]. This Court recently applied that test in Waara v Police [2024] NZHC 1726.

21 At [4].

22     Section 84(1).

23 At [17].

24 At [17].

Global starting points will generally be appropriate where offences are of a similar kind and occur within a short space of time. This reflects the fact that, although charges may relate to separate incidents, they nevertheless reflect ongoing offending of the same type. The selection of a separate starting point for each set of charges runs the risk that the final starting point may be too high having regard to the overall culpability of the offending.

(emphasis added)

[25]      To the extent that the adoption of two starting points ran the risk of the final starting point being too high, Judge Savage here appropriately recognised this and applied a seven month downwards totality adjustment.25

[26]      Mr Lovely also contends before me that it would make no sense to impose cumulative sentences here when, in cases of drug-related spree offending, concurrent sentences are applied almost uniformly. Again, because Ms Judkins’ offending meets the criteria of being different in kind,26 that submission, in my view, has little force here.

[27]      I acknowledge that if the offences for which an offender is being sentenced are different in kind, cumulative sentences are only “generally” appropriate.27 However, I have not been provided with any reason to depart from that general rule in the present case except for the argument that Ms Judkins’ offending is a connected series of offending.

[28]      This was Ms Judkins’ fifth drink driving conviction, and she drove in contravention to an alcohol interlock licence. The Judge was entitled to, and in my view, was correct in applying a cumulative sentence on the drink driving charges.

Manifestly excessive starting point for injuring with intent to injure offending?

[29]      I turn now to the issue of whether the starting point was manifestly excessive in relation to the injuring with intent offending.

25     At [6], as required by Sentencing Act, s 85(2).

26     Sentencing Act, s 84(1).

27     Sentencing Act, s 84(1).

[30]      Mr Lovely argues that the starting point adopted here was manifestly excessive by reference to Chok v Police and Murch v R—cases he says involved more serious offending than the present case. In response, Ms McCrae submits the starting point was within range and is more similar to Thompson v Police. In my view, a rigid comparison of starting points between the cases provided by counsel and the present case is not altogether unhelpful. While similar cases may assist in determining whether the starting point was within the appropriate sentencing range, recently this Court, when sentencing for injuring with intent to injure, reminded decision-makers that the overriding focus is the guideline judgment, not cases applying the guideline judgment.28

[31]      In Chok, the appellant and his co-offender attacked one of the victims in central Wellington in the afternoon by punching his head and upper body, pulling him to the ground, then kicking him, causing him to briefly lose consciousness. The victim suffered a broken clavicle, a cut and bruised right eye, and a concussion.29 The District Court Judge adopted a starting point  of  21  months’ imprisonment  in  respect  of Mr Chok.30 The starting point imposed by the District Court was not raised as part of Mr Chok’s appeal.

[32]      I am unable to accept Mr Lovely’s submission that this was more serious than the present offending, and in any event, the circumstances of the offending are quite different. The present offending occurred in a context of an intimate relationship, was protracted, and as recognised by the District Court Judge, was aggravated by a degree of breach of trust. By contrast, the offending in Chok seems to have been a brief street assault committed jointly against a stranger, which although undoubtedly serious, was of a different character and setting. Further, the starting point adopted was not the subject of appeal, and the High Court said nothing on the matter.

[33]      In Murch, Mr Murch got into an argument with his partner and snatched her keys out of her hand, preventing her from leaving the address. Mr Murch punched the victim multiple times in the right side of her face and her head. He punched her left

28     R v Hanara [2025] NZHC 2482 at [15], citing L v R [2021] NZCA 297 at [18].

29     At [4]–[6].

30 At [12].

eye. He punched her multiple times to her back and ribcage area. He then picked her up by the neck and threw her to the ground. He kicked and stomped on her torso and legs multiple times. He then picked up a hammer and threatened to kill her with the hammer. The attack lasted approximately 15 minutes.31

[34]      On appeal to this Court, his Honour Justice McHerron considered that the District Court Judge erred in imposing cumulative sentences on the threatening to kill charge and assault charges, and that a three-year global starting point was appropriate to recognise that the family violence offending (comprising charges of threatening to kill, male assaults female, and four charges of injuring with intent to injure) occurred as one series of events.32

[35]      I take little assistance from Murch however. The fact the violence offending there was sentenced concurrently, and a global starting point adopted must means it is difficult to discern what an individual starting point for one of the charges of injuring with intent to injure would have been, as was the task of the District Court Judge in the present case.

[36]      In my view, a helpful case comparator provided, albeit with a different factual background, is Thompson v Police. In that case, Mr Thompson became angry when his partner returned to the house to collect things. He approached the victim in a way that made her think she was in danger. She ran away but came back a short time later. This pattern continued during the course of which Mr Thompson punched a hole in a bedroom door. Eventually the victim got outside, pursued by Mr Thompson. He picked up a wooden chair, chased the victim around the car, and eventually caught up with her. He felled the victim with a blow to the back of her head. She fell face forward onto the concrete causing damage to her face.33 This Court upheld a starting point of two years’ imprisonment on the charge of injuring with intent to injure.34

[37]      I accept Ms McCrae’s submission that the gravity of the offending in the present case is perhaps in some way similar to Thompson. And in the present case,

31     At [3]–[4].

32     At [35] and [41].

33 At [2].

34 At [12].

while Ms Judkins did not use a weapon, she embarked on a prolonged attack against the victim, causing not insignificant injury.

[38]      The Judge in the present case considered Ms Judkins’ offending fell within band 2 of Nuku. Under band 2, a starting point of up to three years’ imprisonment will be appropriate where three or fewer of the aggravating factors identified in Taueki are present. Seeing as the Judge accurately identified four aggravating factors present in Ms Judkins’ offending, this offending could have fallen into band 3 of Nuku. In my view, the offending in the present case was serious and justified a starting point in the range of 24 months’ imprisonment.

[39]      With that in mind, and with regard to the other cases provided by counsel, I am not persuaded that the starting point of two years’ imprisonment here was out of range. No error has occurred in the District Court Judge’s sentence here. That sentence was not manifestly excessive.

Conclusion

[40]This appeal is dismissed.

Gendall J

Solicitors:

JMJ Lawyers Limited, Timaru Crown Solicitors, Timaru