Kavanagh v Police
[2025] NZHC 2289
•13 August 2025
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2025-483-25
[2025] NZHC 2289
BETWEEN DANIEL PAUL KAVANAGH
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 5 August 2025 Appearances:
S R Oliver for Appellant
P M Lange for Respondent
Judgment:
13 August 2025
JUDGMENT OF McHERRON J
Introduction
[1] On 15 May 2025,1 Mr Daniel Kavanagh was sentenced in the District Court at Marton to five months and two weeks’ imprisonment on one charge of breaching a protection order.2
[2] Mr Kavanagh appeals this sentence. He says due process was not followed because:
(a)a complete pre-sentence report with appendices was not available to the sentencing Judge, despite having been directed under s 26A of the Sentencing Act 2002;
1 Police v Kavanagh [2025] NZDC 11834 [Decision under appeal].
2 Family Violence Act 2018, ss 9, 90(a) and 112(1)(a) and (3). Maximum penalty of three years’ imprisonment.
KAVANAGH v NEW ZEALAND POLICE [2025] NZHC 2289 [13 August 2025]
(b)the sentencing Judge failed to request submissions at sentence from Mr Kavanagh or the duty solicitor.
Background
[3] Mr Kavanagh’s ex-partner was granted a final protection order against him in late 2024. Mr Kavanagh has previous convictions for using a phone for fictitious purposes (2021), firearms (x 2, 2019), breaching community work (x 2, 2016 and 2018), and offensive and disturbing use of a telephone (x 3, 2015). He also has convictions for assault, wilful damage, driving offending and cannabis possession and cultivation.
[4] In the pre-sentence report completed on 26 March 2025, Mr Kavanagh is described as having an attitude problem with “a disregard for rules and regulations” and an “antagonistic and anti-authoritarian view towards treatment”. He has been “openly opposed to interventions and did not engage with rehabilitative treatment”. However, the writer does highlight that, despite this attitude, Mr Kavanagh complied with the standard conditions of his previous sentences.
The offending
[5] Shortly before Christmas 2024, Mr Kavanagh made a video call to his ex- partner at 9.20 pm, outside stipulated contact times. He communicated aggressively and abusively to her, both during the call and in text messages following.
What happened between entry of plea and sentence
[6] Mr Kavanagh, represented by a duty solicitor, pleaded guilty and was convicted on 23 January 2025. The Judge ordered a pre-sentence report with appendices (known informally as a PAC report),3 referred the matter to restorative justice, and set sentencing down for 14 April.
[7]The decision under appeal describes what happened next:
3 “PAC” stands for Provision of Advice to Courts.
[6]Judge Marinovich called for a pre-sentence report with appendices, which clearly the judge had in mind if not imprisonment, at the very least an electronically monitored sentence. I can say that I have got the Judge's notes for sentence available to me and he very much had imprisonment in mind, as he must have for a breach of a protection order in a case such as this or of this severity.
[7]So, he directed a pre-sentence report and as a part of that, you had to meet with a probation officer. The pre-sentence report was dated 26 March which was for the scheduled sentencing in April. It says that you failed to appear for the initial interview on 13 March but that must be a misprint because it says that at point on 13 March, you signed a written instruction to report when instructed to attend. In any event, well maybe you did not attend on 13 March, and you had already been given a written instruction to attend at that time. In any event, you did not contact Community Corrections to re-schedule or to explain your absence. Contact was made with you and the interview was re- scheduled and then you failed again to attend the re-scheduled interview on 18 March.
[8]…you failed to attend court on 14 April and you made a voluntary appearance, it is said, the following day...the Justices of the Peace allowed you bail and set matters down today for sentence.
[8] The request for “a pre-sentence report with appendices” means a pre-sentence report under s 26A of the Sentencing Act for the purpose of considering home detention. Under that provision, such a report would include:4
(a)information regarding the suitability of the proposed curfew address or home detention residence, including the safety and welfare of the occupants of the proposed curfew address or home detention residence; and
…
(b)in the case of a sentence of home detention, confirmation that the offender consents to the standard detention conditions and any special conditions recommended by the probation officer or that the court has indicated it is considering imposing.
[9] It was not in dispute that no s 26A report relating to home detention was prepared or available to the sentencing Judge.
4 Sentencing Act 2002, ss 26A(2)(a) and (c).
District Court decision
[10] I have reviewed the transcript and the recording of the legal discussion prior to sentencing. On 15 May 2025, Mr Kavanagh’s case was called at 2.24 pm. Mr Kavanagh was unrepresented at this stage:
The Court: … You appreciated that when Judge Marinovich remanded you for sentencing and he called for a pre-sentence report and appendices. I take it you appreciated from that that you were in some jeopardy?
…
Mr Kavanagh: He told me I got nothing to worry about.
The Court: I very much doubt that because if he thought that he wouldn’t have called. Judges call for reports and call for appendices, the only point in calling for appendices is if you may well be going to send the person to prison… have you been given a copy of the summary of the facts on which
you’ve pleaded guilty to?
Mr Kavanagh: [attempts to retract his plea] [ ]
The Court: Look, you can stand down in custody and there’s someone here still acting as duty lawyer we’ll get them to see you.
[11] The matter was then called last, at around 4.35 pm. Mr Oliver, the Duty Solicitor (and counsel on appeal) made the following submission:
Sir I have spoken to Mr Kavanagh as duty solicitor, had a pretty frank discussion with him, he’s aware that he’s really in the hands of the Court. He does seek a further opportunity to be assessed for EM bail. He realises the situation he is in; he’s also had me complete an application for legal aid because he realised that he probably needs a lawyer to help him the situation that he’s in.
Just by way of a bit of further information Sir, you will see he’s got a brace on his wrist. He tells me that that causes a significant amount of pain and he’s on pain medication which hasn’t helped when it comes to keeping appointments and the like. In any event Sir I’ve imparted on him the need to engage and I think it’s pretty clear to him as a result of this afternoon what the end point will be if he continues not to engage, but that being said Sir acknowledges he is in the hands of the Court today but from my position Sir I have made it as clear to him as possible the situation he’s in, what he needs to do and that its really up to the Court what’s going to happen from this point, unless you have any further questions Sir?
[12] The Judge replied he had no further questions and began delivering his formal sentencing remarks. Neither the Crown nor Mr Oliver made further submissions on sentence.
[13] The Judge assessed the offending as “right up there” for a breach of a protection order.5 He noted that the previous Judge “very much had imprisonment in mind, as he must have for a breach of a protection order in a case such as this or of this severity.”6 After discussing the pre-sentence process (see above at [7]), the Judge turned to Mr Kavanagh’s conviction history, and imposed the sentence:
[9] I turn to your list of previous convictions. What is most relevant and concerning today is three convictions in 2015 for offensive or disturbing use of a telephone; and in 2021, used a phone for fictitious purposes. You have got other breaches of court orders as well as Arms Act 1983 offending for which you received home detention in 2019. So all in all, Mr Kavanagh, because of that home detention sentence, you well knew the process. You well knew what pre-sentence reports were all about. You knew what appendices were about and home detention or community detention reports.
[l0] Well, I am not going to adjourn this matter today. This is the second date in which sentencing has been scheduled. You well knew what you were facing. So, the sentence will be as follows. In my view the lowest possible starting point that could be taken of a protection order which involved this level of personal, denigrating, misogynistic abuse of a victim is six months' imprisonment. That is uplifted by one month for your previous convictions. There will be credit of one-and-a-half months for your guilty plea and the end sentence is one of five months two weeks' imprisonment.
[11] There will be standard release conditions but no special release conditions, and that will be for six months after the sentence expiry date.
Approach to sentence appeal
[14] I must allow the appeal if I am satisfied that, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed.7
[15] Whether a sentence is manifestly excessive is assessed by reference to the end result, rather than the process by which it was reached.8 I should not “tinker” or
5 Decision under appeal, above n 1, at [4].
6 At [6].
7 Criminal Procedure Act 2011, s 250.
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; Ripia v R [2011] NZCA 101.
intervene with the end sentence if the end sentence is within range.9 In borderline cases, “the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight.”10
[16] The Court does not start afresh or simply substitute its own opinion for that of the original sentencer.11 If there is a material error in the sentencing process, the Court will then form its own view of the appropriate sentence.12
[17] R v Palmer confirmed the same approach applies to an appeal argued on the basis the sentencing court should have commuted a sentence of imprisonment to home detention.13
Grounds of appeal
[18]I have formulated the appellant’s arguments as follows:
(a)Was it an error for Mr Kavanagh to be sentenced on the basis of an incomplete pre-sentence report?
(b)Was Mr Kavanagh deprived of the right to be heard on sentence?
(c)Was the sentence manifestly excessive?
Should the District Court have proceeded without a home detention report?
What does the law require?
[19] Section 16 of the Sentencing Act dictates that the court must have regard to the desirability of keeping offenders in the community. The Court must not impose a sentence of imprisonment unless it is satisfied that the purposes of sentencing (s 7(1)(a) to (c), (e), (f) or (g)) cannot be achieved by a sentence other than imprisonment and no other sentence would be consistent with the principles in s 8.
9 R v Boyd (2004) 21 CRNZ 169 at [38].
10 R v D (CA 253/2008) [2008] NZCA 254 at [66].
11 At [30].
12 Tutakangahau v R, above n 11, at [30] citing Te Aho v R [2013] NZCA 47 at [30].
13 R v Palmer [2016] NZCA 541. See also Sentencing Act, s 80J.
The Sentencing Act provides that a court considering a sentence of home detention must direct the preparation of a pre-sentence report.14 Section 17 (imprisonment may be imposed if offender unlikely to comply with other options) also supports the requirement in both the Act and the cases to call for a pre-sentence report on home detention where that is being considered. Such a report is likely to inform a judge’s decision that home detention is unsuitable.
[20] Beginning with In re Moulin,15 re-stated by the Court of Appeal in R v Harriman,16 affirmed in Fowler v R,17 and consistently followed,18 the cases say if a pre-sentence report on home detention is directed, it is a material error to proceed to sentence without consideration of that report. A custodial sentence should only be imposed in rare circumstances without the benefit of a pre-sentence report.19
Arguments
[21] Mr Oliver submits that the Judge’s non-compliance with the clear and consistent principles expressed in the case law and the Sentencing Act constitutes a fundamental error, and the sentence must be reassessed with the benefit of a full report.
[22] For the New Zealand Police, Ms Lange responsibly accepts that it is generally not open to a Court to proceed with the imposition of an alternative sentence, having ordered and received an incomplete pre-sentence report. The appropriate course is to adjourn the matter until receipt of a complete report.20
14 Sentencing Act, s 26A(1) and (2).
15 In re Moulin [1943] NZLR 325 at 327 (SC) per Myers CJ.
16 R v Harriman [2009] NZCA 156. Also see the cases cited within at [20].
17 Fowler v R [2016] NZCA 233.
18 See Sefesi v Police HC Wellington CRI-2010-485-68, 17 August 2010; Greacan v R [2016] NZHC 2015; Waitere-Tutaki v Police [2025] NZHC 1275.
19 R v Harriman, above n 16 at [19].
20 Citing R v Harriman, above n 19; and Greacan v R, above n 18.
My assessment
[23] I acknowledge the case law establishes the usual position. However, it is important also to note that the processes of the Court cannot be held hostage by defendants who refuse to comply, especially in a family violence context.21
[24] The carve out for “exceptional circumstances” in Harriman must be considered on a “case by case basis”.22 Failure to attend the initial sentencing hearing or difficulties establishing attendance at a pre-sentence report interview are, on their own, insufficient reasons for the Court to dispense with considering a pre-sentence report.23 This interpretation is grounded in the observation in Fowler that the reasoning in Harriman applies “wherever the information available to the sentencing Judge is inadequate to make a properly informed decision about whether to sentence someone to imprisonment”.24 If the report unequivocally concluded that the individual had failed to engage or comply with arrangements for its compilation, a sentencing judge would be empowered to make the decision that imprisonment is the only option. In such circumstances a judge could be adequately informed by the lack of a s 26A report itself.
[25] However, where the lack of report occurs from no fault of the defendant,25 or there is dispute as to where or from whom the issues arose,26 or reasons are raised but not ventilated,27 the Court should adjourn.
[26] The sentencing Judge clearly placed Mr Kavanagh in the first category, but I find there were red flags here that supported an adjournment until greater clarity could be achieved. I am not persuaded that there is much substance in Mr Kavanagh’s position that his ability to comply with appointments was impacted by his self-reported struggle with reading and remembering, and the taking of pain medication. But it
21 See Molly Hurley “Legally Justified Abuse? Protecting against abusive litigation in family law proceedings in New Zealand” (2024) 9 NZWLJ 191 at 192.
22 Harriman, above n 19, at [21].
23 See the recent decision of Waitere-Tutaki v Police, above n 18, at [34] and [35].
24 Fowler v R, above n 17, at [31] citing R v Harriman, above n 19.
25 As in Greacen, above n 18, at [2].
26 As in Sefesi v Police, above n 18.
27 See Venn v Police [2024] NZHC 1932 at [7].
would be remiss, when presented with these contentions from the bar, to not investigate them further.
[27] Other errors flow from the decision to proceed — the Judge did not squarely consider home detention despite imposing a short-term sentence,28 or address the desirability of keeping the appellant in the community as articulated by s 16 of the Sentencing Act.
[28] I agree with Ms Lange that the Judge implicitly found home detention to be inappropriate on the basis of the appellant’s criminal history, lack of genuine rehabilitation efforts, repeated failures to appear in court, and continued non- engagement with probation. I agree that the criminal history raises some concerns. From my reading of the material, the other considerations also likely have a factual foundation. But again, that level of certainty or clarity was not squarely before the Judge.
[29] Moreover, the Judge’s comments that “the only point in calling for appendices is if you may well be going to send the person to prison” and the reference to the draft notes of the Judge who took Mr Kavanagh’s plea, wrongly suggests that the decision was pre-ordained at that earlier stage. I do not accept that, despite the Judge calling for appendices, there was never any intention to consider home detention as an option. Rather, the opposite is true: if a judge has called for a relevant report under s 26A, an offender has a legitimate expectation that home detention or community detention will be further considered.
[30] There is no presumption that either imprisonment or home detention is to be preferred, but the judge must identify which option is the least restrictive taking into account all the purposes of sentencing.29 In all the circumstances, to do so implicitly without the benefit of the information that had been called for was an error.
28 See Papa v Police [2019] NZHC 1209 at [10].
29 R v Vhavha [2009] NZCA 588 at [31].
Was Mr Kavanagh deprived on the right to be heard on sentence?
[31] I accept Mr Oliver’s argument, as articulated in R v van Yzendoorn, that sentencing forms part of a trial, and that defendants must be given the opportunity to provide counsel instruction on mitigating matters.30
[32] Because Mr Kavanagh at that point had engaged (or appeared to have engaged) the duty solicitor, the Judge did not need to ask Mr Kavanagh directly for a submission. He had legal representation from a lawyer, who spoke to the Judge prior to the sentencing beginning and offered submissions in mitigation, such as concerning the brace on Mr Kavanagh’s wrist. Therefore I find Mr Kavanagh was not deprived of the right to be heard.
[33] But I suggest, prior to commencing the sentencing, the Judge should have indicated he planned to proceed in the absence of a home detention report, and ask counsel whether there was any objection to that.
[34] With the benefit of hindsight, it would have been helpful too if the duty solicitor had made a specific and direct submission that sentencing should not proceed in the absence of a full PAC report, including in respect of s 26A considerations, rather than repeating that the matter was “in the court’s hands”.31 Unfortunately, that submission appears to have encouraged a busy list Judge at the end of a long day of sentencing to fall into the error of taking the more direct, rather than the procedurally correct but more circuitous, route.
Was the sentence manifestly excessive?
[35] The Crown reminds me that the focus of a sentence appeal must be on the correctness of the end result and not the process by which the sentence was reached. Ms Lange submits the end sentence remains “unaffected” and is not open to challenge. I do not consider this argument is tenable. Without a report under s 26A or clarity on the circumstances underpinning Mr Kavanagh’s failures to attend or to engage with
30 R v van Yzendoorn [2002] 3 NZLR 758 (CA) at [28].
31 I mean no criticism here. Duty solicitors perform essential work in our communities with little time to prepare and often under considerable pressure.
the report writing process, I cannot be sure that a sentence of imprisonment was to be preferred, or best met the purposes and principles of sentencing.
[36] Therefore, I conclude there were material errors in the process that in these circumstances mean this Court on appeal cannot assess the validity of the end sentence, and so, the appeal must be allowed.
[37] That should not be taken as a suggestion a sentence of imprisonment was inappropriate. But any such sentence needed to be properly informed by the information that had been called for.
Result
[38] I allow the appeal. However, I emphasise that Mr Kavanagh’s success on appeal has nothing to do with the validity of the protection order, and the validity of the conviction entered for that breach.
[39] Sentencing is remitted to the District Court with a direction that it obtains a further pre-sentence report with a home detention report under s 26A before sentencing Mr Kavanagh afresh.32 I refer to my observations at [24] if a report is not available. But based on what he told me at the appeal hearing, I trust Mr Kavanagh will now engage with the process.
[40] I do not have the District Court’s decision granting Mr Kavanagh bail pending the outcome of his appeal. I direct that his bail continue on the same conditions pending sentence.
McHerron J
Solicitors:
Treadwell Gordon Solicitors, Whanganui for Appellant C&M Legal, Whanganui for Respondent
32 Criminal Procedure Act 2011, s 251(2)(c).
0
12
0