Lee-Panting v The King

[2025] NZHC 2480

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2025-412-20

[2025] NZHC 2480

BETWEEN

NATHAN ALEC LEE-PANTING

Appellant

AND

NEW ZEALAND POLICE

Respondent

CRI-2025-412-21

BETWEEN

NATHAN ALEC LEE-PANTING
Appellant

AND

THE KING

Respondent

Hearing:	25 August 2025
Appearances:	S A Saunderson-Warner for Appellant J C Collins for Respondent
Judgment:	28 August 2025
Reissued:	31 October 2025

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 28 August 2025 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

LEE-PANTING v R [2025] NZHC 2480 [28 August 2025]

Introduction

[1]    Nathan Lee-Panting has been convicted of several drug-related offences. He pleaded guilty to possession of a Class A drug (LSD) for supply,1 possession of a Class A drug (methamphetamine),2 possession of cannabis,3 two charges of failing to assist with a search power,4 two charges of wilful damage5 and one of speaking threateningly.6

[2]    On 7 March 2025, he was sentenced by Judge Turner to  two  years  and seven months’ imprisonment and ordered to pay reparations of $383.7 Mr Lee-Panting now appeals this sentence on the ground that no credits were allowed for personal mitigating factors, resulting in a manifestly excessive end sentence.

Facts

Crown charges

[3]    At about 12.20 am on 20 September 2024, police stopped a vehicle. A strong odour of cannabis was noted coming from the car and a warrantless search then occurred. The appellant was in the front passenger seat. A black bag was found under the passenger seat later found to contain 125 grams of cannabis in several plastic bags; a cannabis joint; a separate plastic bag containing 3.57 grams of methamphetamine; and a plastic bag containing 45 tabs of LSD. Also in the bag was a set of digital scales.

[4]    Police also found what they believed to be a tick-book containing names, phone numbers and bank account details of various persons. Three phones were found in the vehicle, one in the possession of the driver, Mr Durst; one in the appellant’s possession; and a third in the car itself. Both occupants were asked to supply the PIN numbers for the phones and both refused. Both occupants were arrested. Mr Durst produced further cannabis to police and $250 was found in a wallet in the appellant’s

1      Misuse of Drugs Act 1975, s 6(1)(f); maximum penalty life imprisonment.

2      Section 7(1)(a) and (2)(a); maximum penalty six months’ imprisonment or $1000 fine.

3      Section 7(1)(a) and (2)(b); maximum penalty three months’ imprisonment or $500 fine.

4      Search and Surveillance Act 2012, s 178; maximum penalty three months’ imprisonment.

5      Summary Offences Act 1981, s 11(1)(a); maximum penalty three months’ imprisonment.

6      Section 21(1)(a); maximum penalty three months’ imprisonment or $2000 fine.

7      R v Lee-Panting [2025] NZDC 5261.

possession. The phones seized were later analysed. During this process, within the phone case, police found further small plastic bags containing 182 tabs of LSD. Forensic analysis on the phones was conducted that attributed the phones to the appellant and Mr Durst as appropriate.

Police charges

[5]    The appellant and the victim had been in a relationship for about five years, but had separated about seven months prior to the offending. They have two children together.

[6]    On 30 September 2023, around 8 am, the appellant let himself into the victim’s house and woke her up. He left after being told to get out but returned 10 minutes later demanding his jacket. He called the victim’s phone multiple times while kicking the bottom of the front door. This woke the four children in the house. He yelled at the victim, threatening to smash her car. Police were called. The appellant went to the victim’s car, removed a sub-woofer and threw it on the footpath, damaging it. He then left the property. A protection order has since been issued against the appellant in favour of the victim.

[7]    On 5 January 2024, around 9.15 pm the appellant went to the second victim’s house. The victim heard noises at his back door and, believing it to be friends he had invited around, he opened the door to find four people, including the appellant. Two of the appellant’s associates forced their way through the door, grabbed the victim by the arm and pushed him up against the wall. The appellant then entered the house and went into the lounge, the victim following. Following a heated discussion, one of the associates punched the victim. Another wrapped his arm around the victim’s neck to put him in a headlock, but the victim freed himself. One associate grabbed the victim’s arm and pushed him to the couch where he was then assaulted.

[8]    The victim’s friends arrived, after which the appellant and his associates threw alcohol around the lounge, and picked up a dining room chair and smashed it. A window was broken. The appellant and another person kicked a speaker belonging to the victim. The victim and his friends asked them to stop destroying property and eventually they left.

[9]    While the victim is said to have required hospital treatment for the assaults, these injuries were not attributable to the appellant. However, the appellant faces a further charge of intentional damage as a result of these events.

District Court decision

[10]   The Judge adopted a starting point of three years’ imprisonment on the lead charge of possession for supply of LSD. This was uplifted by four months on a totality basis in respect of the other Crown charges, and two months for the police matters. The adjusted starting point of 42 months was not uplifted for previous history. A full guilty plea deduction of 25 per cent was given. The Judge acknowledged that no other mitigating factors were advanced on the appellant’s behalf. The end sentence imposed was 31 months’ imprisonment (rounded down) and equated to  two  years  and  seven months’ imprisonment. There was also a forfeiture order made in respect of the cash seized and two reparation orders in relation to the wilful damage charges, totalling $383.

Principles on appeal

[11]   Appeals against sentence are allowed as of right by s 244 of the 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.8 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”.9 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.10

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

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

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

Submissions

Appellant’s submissions

[12]   Ms Saunderson-Warner, for the appellant, submits that the sentence was manifestly excessive as no credits were allowed for personal mitigating factors. Defence counsel at sentencing did not advance any mitigating factors beyond brief reference to “perhaps 5% [credit] for addiction”. There was no Alcohol and Drug report (AOD report) before the sentencing Judge.

[13]   An AOD report has now been commissioned, and the appellant seeks to adduce it as fresh evidence on appeal. In addition to a 15 per cent credit for background and substance use issues, a 10 per cent credit is sought to recognise the impact of parental incarceration on the appellant’s children and a one-month deduction is sought to recognise compliance with restrictive bail conditions. If the end sentence is less than 24 months, the appellant seeks leave to obtain updated advice from Corrections as to the availability of the home detention address.

Respondent’s submissions

[14]   Mr Collins, for the respondent, submits the sentence is not manifestly excessive. He accepts some credit would be available to recognise the appellant’s personal background. However, he submits that any credit awarded would not render the sentence manifestly excessive given several aspects of the sentence were generous to the appellant. In particular, the sentencing approach adopted for the LSD supply charge was favourable to the defendant. Further, he submits there is no credit warranted for parental incarceration or for time spent on bail.

Analysis

Leave to adduce fresh evidence

[15]   Mr  Saunderson-Warner  seeks  to  adduce  fresh  evidence  in  support   of Mr Lee-Panting’s appeal in the form of an AOD report. The AOD report details the appellant’s turbulent childhood and later substance abuse as well as impulsivity, distractibility, risk-taking behaviours and other provisional clinical diagnoses. While

Ms Saunderson-Warner acknowledges this evidence is not ‘fresh’ as it could have been obtained prior to sentencing, she submits it is credible and that it should be admitted so the Court has the most accurate information to determine whether a deduction for personal background factors is warranted.

[16]   I have read AOD report. While obviously it is not fresh, I accept it provides cogent information about Mr Lee-Panting’s upbringing and addictions which are relevant to sentencing. In my view, the interests of justice favour its admission. I therefore give leave to adduce the report on appeal.

Should there be a credit for background and addiction?

[17]   The AOD report details the appellant’s turbulent childhood with exposure to extensive alcohol and drug use by his parents, and with the appellant and his sister often being left to manage themselves from a young age. The appellant’s parents separated when he was seven, and about a year later the appellant’s mother found a new partner who became a stabilising influence on the appellant. The death of the appellant’s stepfather in 2023 triggered “profound grief and emotional decline”. The appellant continues to have long-standing issues with emotional regulation and expressed to the report writer that the emotional neglect and eventual complete absence of his father have resulted in trauma that he had self-medicated with substance use. The report also states the appellant struggles with impulsivity, distractibility and risk-taking behaviours.

[18]   A clinical assessment undertaken in conjunction with the preparation of the AOD report has found the appellant currently meets the criteria for alcohol use disorder, cannabis use disorder, stimulant use disorder and hallucinogen (LSD) use disorder, all of which are in early remission in a controlled environment. The report writer considers provisional diagnoses of post-traumatic stress disorder (PTSD) and attention-deficit   hyperactivity   disorder   (ADHD)   are   available.   However,    Ms Saunderson-Warner acknowledges a comprehensive psychological assessment would be required before these diagnoses could be confirmed.

[19]   The report writer draws a link between the appellant’s dysfunctional childhood and his substance use and offending. In her view, the appellant had a “clinically

significant vulnerability to substance use disorder, shaped by genetic predisposition and adverse developmental influences”, saying that “parental substance abuse, inconsistent caregiving and unresolved trauma … are known to heighten addiction risk by disrupting stress-response systems and emotional regulation”.

[20]   It is clear the appellant has had a difficult upbringing and counsel are agreed that credit should be available to recognise the causal connection between this and the current offending. However, Mr Collins relies on Fraser v R11 to submit that limited weight should be placed on the provisional diagnoses of ADHD and PTSD given the report writer does not have the expertise to make a clinical diagnoses.

[21]   While I recognise that those diagnoses are provisional, I consider the report assists in understanding the impact that the appellant’s background has had on his latest decision-making processes and I acknowledge the causal connection identified by the report writer.

[22]   The position regarding addiction is more difficult. Ms Saunderson-Warner submits the appellant’s addiction was aggravated by the unresolved grief and emotional breakdown that the appellant experienced following, first, the death of his stepfather, and second, the loss of his relationship with the mother of his children. She submits that the appellant is highly remorseful. He is now abstinent from drugs and alcohol while in custody and motivated to rehabilitate, and his children provide particular motivation. Counsel submits that, had this information been before the sentencing Judge, a 15 per cent credit for personal background and addiction would have been allowed.

[23]   Mr Collins, however, submits that while the AOD report provides there could be a causal connection between addiction and the offending, this is minimised by the appellant’s subsequent denials of factual aspects he pleaded guilty to and was sentenced on. Specifically, the appellant, in the pre-sentence report, stated he was not aware of any drugs in the car except for the LSD found in his phone case. Similarly, in the AOD report, the appellant denies possession for supply, telling the report writer that he had 220 LSD tabs for personal use.

11     Fraser v R [2022] NZHC 3518 at [32].

[24]   Mr Collins relies on Kohu v R12 and submits that whatever causal connection there is between addiction and the offending, this should not reduce his culpability for the lead offence given he has not accepted that these addictions have led to any intent to supply LSD. Mr Collins submits the essential rationale provided in Zhang recognises that culpability for drug dealing behaviour is reduced by acknowledgement that an addiction to those same drugs can be a driver for that offending.13 He submits that this rationale is undermined when the appellant does not acknowledge the drug dealing.

[25]   Given the appellant’s history, particularly his chaotic early upbringing and lack of a loving, reliable father figure in his early years and the flow on effect that has had on his addictions, I consider a global deduction for personal background factors and addiction is appropriate. However, in determining the extent of this credit, I acknowledge that the clinical diagnoses are provisional and that while the appellant appears to acknowledge his addictions and desire for rehabilitation, he has been inconsistent in his acknowledgment that the LSD tabs found in his possession were for supply and that he was supplying to fund his addiction. The addiction is not thus obviously causative of the offending although his background is causatively connected to his drug use.

[26]   In my view, a 10 per cent deduction for personal background factors and resulting addiction to be warranted here.

Should there be a credit for the impacts of parental incarceration?

[27]   The appellant seeks credit for the impacts of parental incarceration on his children (aged five and six). Ms Saunderson-Warner submits the appellant lived with his children until his separation from his ex-partner (and their mother) in 2023. She informs that prior to going into custody, he had been seeing his children at least three times a week, with active engagement in their routines and caregiving. She says this was arranged on an informal basis with his ex-partner, and that, despite the protection order being in place, she promoted this contact.

12     Kohu v R [2023] NZCA 343 at [44].

13     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

[28]   Ms Saunderson-Warner submits that since his remand, the appellant has not seen his children and he understands the children have been deeply affected by his sentence. She submits that, in line with Philip v R,14 a 10 per cent credit should be allowed to reflect the impact on the appellant’s young children of their father’s imprisonment.

[29]   Mr Collins does not accept that there was any ongoing contact with the children prior to the appellant being placed in custody, nor that his incarceration has impacted his children deeply. In submitting that, he points to the victim impact statement which was filed shortly before sentencing. The parties separated in 2023 and the current wilful damage and speaking threateningly charges relate to offending against his ex-partner which occurred in the presence of their children. In the victim impact statement dated 4 March 2025, the victim expressed a hope that she could re-locate herself and the children to a new residence unknown to the appellant. A protection order is now in place in favour of the victim and her children.

[30]   Given the conflict in evidence, I place greater weight on the victim impact statement and circumstances of the protection order and offending than on the appellant’s self-reports. While Philip provided for a 10 per cent deduction where the appellant was not the primary caregiver, as is the case here, that case also states that other factors may take primacy in sentencing, including inter-familial violence.15 Here, the appellant has engaged in inter-familial violence, including violence in the presence of his children, prompting his ex-partner to say that she and the children are likely to relocate in order to distance themselves from the appellant. It appears that his offending, rather than his incarceration, has resulted in his inability to see his children. In these circumstances, it cannot be said there was an error in sentencing by failing to give a credit for the impact of parental incarceration on sentencing.

14     Philip v R [2022] NZSC 149, [2022] 1 NZLR 571.

15 At [56].

Should there be a credit for time spent on bail?

[31]   Ms Saunderson-Warner submits a credit of one month could have been awarded for the appellant having been on curfew from 7 pm to 7 am for five months between October 2024 and March 2025. This was not sought at sentencing.

[32]   Mr Collins does not accept a credit is available for time spent on bail and highlights that there was a breach of the curfew condition on 30 November 2024, and that the appellant’s sentence was not uplifted for the fact the drug offending occurred while on bail.

[33]   Given the bail conditions do not appear to have been highly restrictive, and there was both a breach of bail and further offending, I am satisfied the Judge did not err by failing to give a credit for the time spent on bail.

Is the sentence manifestly excessive?

[34]   It is common ground that where insufficient credits for discrete factors were applied at sentencing an appeal is not automatically allowed. Instead, the Court must consider whether the end sentence is manifestly excessive. In this regard, Mr Collins says that Mr Lee-Panting had the benefit of a generous approach to sentencing on the lead charge so, even if a deduction should have been given for background factors and addiction, the end sentence was not manifestly excessive.

[35]   In order to understand this submission better, it is necessary to review how the Court set the starting point for the charge of possessing LSD for supply. ln the District Court the Crown pointed out that there was a relative lack of recently decided case law involving LSD for supply in circumstances comparable to that of the appellant. The Crown also acknowledged that the decisions in Zhang16 and Berkland17 developed a more nuanced approach to sentencing for drug dealing offending which looked at not just at quantum, but role, and also at the part addiction played in the offending. The Crown referred to two Court of Appeal decisions which predated Zhang, but which gave some guidance on starting points. In R v Edwards, a starting

16     Zhang v R, above n 13.

17     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.

point of four years’ imprisonment was said to be “clearly available” where text messaging contained offers to supply 100 LSD tablets.18 In McInnes v R, the lead offending involved possession of 66 tablets of LSD for supply and a starting point of three and a half years was adopted and confirmed on appeal.19

[36]   In order to check that the starting point the Crown proposed reflected not just existing case law, but also Zhang and Berkland, the Crown looked at the “presumption amount” for supply offending. The presumption amount for methamphetamine offending is five grams, and this also represents the boundary between category one and two of Zhang, while for LSD, the presumption amount is two and a half milligrams or 25 flakes, tablets, capsules or other drug forms, each containing some quantity of the drug.20 Here, the defendant’s offending involved a total of 226 tablets or approximately nine times the presumption amount for LSD. The Crown suggested this was the equivalent of 45 grams of methamphetamine, being nine times the presumption amount for that drug and would place the offending in the middle of band two under Zhang. However, acknowledging that the appellant carried out a lesser role as a street dealer, a starting point of 36 months was proposed for the lead charge, with an uplift of four months for the other charges.

[37]   That approach was adopted by the Judge, albeit noting that it was “generous” in light of earlier Court of Appeal decisions which involved starting points of between four and five years’ imprisonment.21

[38]   Having regard to cases on LSD supply offending (including those listed in the 1997 case of Stanaway), it is apparent there is a wide range of sentences available. However, reasonably recently, the Court of Appeal in Wilson v R upheld a starting point of four years on a charge of possessing 300 LSD tablets for supply, with the Court noting that the starting point was “unremarkable”, and probably towards the bottom of the range for  similar  LSD  offending.22  In  doing  so,  it  referred  to  three decisions between 2008 and 2011 where the amounts ranged from 201 tablets to

18     R v Edwards [2009] NZCA 269 at [16].

19     McInnes v R [2011] NZCA 261 at [5], [14] and [19].

20     Misuse of Drugs Act, sch 5.

21     Referring to R v Stanaway [1997] 3 NZLR 129 (CA); and R v Reid [2014] NZHC 426, although the latter does not appear to address sentencing for LSD at all.

22     Wilson v R [2017] NZCA 342 at [8].

336 tablets, and where the starting points ranged from three years and six months through to five years.23

[39]   While a starting point of three years on the lead charge appears to be at the lower end of the available range, I cannot say it was so generous that no further deduction may be made for the background factors which have been identified as drivers of Mr Lee-Panting’s offending. This was information not available to the District Court at sentencing and, all other aspects of the sentence imposed being sound, I would allow a further 10 per cent deduction to reflect these matters. The credits afforded to Mr Lee-Panting now total 35 per cent. Deducted from the starting point of 42 months’ imprisonment, that results in an end sentence of 27 months’ imprisonment (rounded down).

Result

[40]Accordingly, the appeal is allowed.

[41]   The sentence of 31 months’ imprisonment is quashed and in its place a sentence of 27 months’ imprisonment is imposed on the charge of possession of LSD for supply.

[42]All other aspects of the sentence remain unchanged.

Solicitors:

Crown Law, Dunedin

Copy to:
S A Saunderson-Warner, Barrister, Dunedin

23 R v Faulkner HC Auckland CRI-2006-004-25880, 15 April 2008; R v Love HC Palmerston North CRI-2006—54-5597, 4 September 2009; and R v Cornelius HC Whangarei CRI-2010-027-143, 7 November 2011.