Kavanagh v Police - [2025] NZHC 2289

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kavanagh v Police

Details

AGLC: Kavanagh v Police [2025] NZHC 2289
Case: [2025] NZHC 2289
Decision Date: 13 August 2025

CaseChat Overview and Summary

In Kavanagh v Police, the appellant, Daniel Kavanagh, appealed the sentence imposed on him by the District Court, which sentenced him to five months and two weeks’ imprisonment for breaching a protection order. Kavanagh argued that the sentence was flawed due to the absence of a complete pre-sentence report, particularly one under section 26A of the Sentencing Act 2002, and that he was not given the opportunity to be heard on the sentence. The appeal hinged on whether these procedural errors warranted a reassessment of the sentence.

The court considered whether the absence of a section 26A pre-sentence report constituted a material error, which would require the sentence to be reassessed. The court noted that while it is generally an error to proceed to sentence without such a report, there are exceptions where the defendant’s non-compliance is at fault. However, in this case, the court found that there were sufficient red flags to warrant an adjournment until the report was obtained. The court also determined that the sentencing judge did not adequately consider home detention as an alternative to imprisonment, despite imposing a short-term sentence. Furthermore, the court found that Kavanagh’s right to be heard was not infringed upon as he had legal representation who made submissions on his behalf.

The court concluded that the procedural errors in the sentencing process meant that the appeal should be allowed. The sentence was remitted to the District Court with a direction to obtain a further pre-sentence report, including a section 26A home detention report, before re-sentencing Kavanagh. Kavanagh’s bail conditions were to remain unchanged pending the re-sentencing.

Orders