Nicholl v The King

[2024] NZHC 1638

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE CHILDREN.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-73

[2024] NZHC 1638

BETWEEN

RICKY WILLIAM NICHOLL

Appellant

AND

THE KING

Respondent

Hearing:	5 June 2024
Appearances:	K J Beaton KC for the Appellant G L Collett for the Respondent
Judgment:	20 June 2024

JUDGMENT OF ROBINSON J

[Sentence appeal]

Solicitors/Counsel:

K J Beaton KC, Christchurch Crown Solicitor, Christchurch

NICHOLL v R [2024] NZHC 1638 [20 June 2024]

Introduction

[1]        On 1 November 2023 Mr Ricky Nicholl accepted a sentence indication and pleaded guilty to the following charges:

(a)two charges of being a party to dangerous driving causing death;1

(b)being a party to dangerous driving causing injury;2 and

(c)attempting to pervert the course of justice.3

[2]        Judge Lynch indicated a starting point of three years and six months’ imprisonment on the driving charges, with an uplift of six months for attempting to pervert the course of justice. Judge Lynch also indicated a discount of 12.5 per cent for the appellant’s guilty plea.

[3]        On 5 March 2024 Judge Lynch sentenced the appellant to two years, five months and two weeks’ imprisonment.4 In doing so the Judge:

(a)applied a five per cent uplift for the appellant’s previous convictions (and an additional charge of operating a vehicle with sustained loss of traction); and

(b)allowed credits of 43 per cent for personal mitigating factors, including the indicated 12.5 per cent discount for the appellant’s guilty plea.

[4]        Judge Lynch also convicted and discharged the appellant on a charge of driving a motor vehicle with sustained loss of traction.5

[5]The appellant appeals his sentence.

1      Land Transport Act 1998, s 36AA(1)(b). Maximum penalty of 10 years’ imprisonment or a

$20,000 fine.

2      Land Transport Act, s 36(1)(a). Maximum penalty of five years’ imprisonment or a $20,000 fine.

3      Crimes Act 1961, s 117(e). Maximum penalty of seven years’ imprisonment.

4      R v Nicholl [2024] NZDC 4651.

5      Land Transport Act, s 36A(1)(c). Maximum penalty of five years’ imprisonment or a $20,000 fine; and minimum one year disqualification from holding or obtaining a driver license.

Background

The relationships

[6]        The appellant was involved in dangerous driving which tragically caused the death of his cousin, Mark Nicholl Junior, and a family friend, William Clark.

[7]        The appellant was charged as a party to the principal offending of Shannon Nicholl, who is the appellant’s cousin and Mark Nicholl Jnr’s brother. Shannon Nicholl suffered severe head injuries in the incident. He was found unfit to stand trial.

[8]        The appellant was also charged alongside his uncle Mark Nicholl Senior. Mr Nicholl Snr is the father of Mark Nicholl Jnr and Shannon Nicholl. Mr Nicholl Snr was also charged as a party to his son Shannon’s principal offending. Mr Nicholl Snr declined a sentence indication and was acquitted after a jury trial in November 2023.

The offending

[9]        The facts as accepted by the appellant through his guilty pleas are accurately summarised in Ms Beaton KC’s written submissions.6

[10]      On 25 September 2021 a number of friends and family, including the appellant and the victims, gathered to socialise at a bar. The group left the bar in four vehicles and intended to travel in convoy to a second gathering at another location.

[11]      At that point, the appellant was the passenger in a Jeep motor vehicle which was driven by Matthew Gibbons, an employee of the appellant. The appellant was suspended from driving due to the accumulation of demerit points.

[12]      Shannon  Nicholl  was  driving  a  Subaru  vehicle  with  three  passengers. Mr Nicholl Snr was driving a Holden vehicle. Shannon Nicholl had been sidling his Subaru alongside Mr Nicholl Snr’s Holden at traffic lights and, at times, accelerating away from the lights quickly.

6      As agreed with counsel, after hearing the appeal I viewed the relevant video footage that was also viewed by the sentencing judge.

[13]      All vehicles stopped at the next set of lights at the intersection of State Highway 1 and Halswell Junction Road. Matthew Gibbons and the appellant swapped seats so that the appellant could drive the Jeep. The appellant got in the driver’s seat. The distance from this point to the crash site is a little over one kilometre.

[14]      The appellant’s Jeep was third in the row of vehicles navigating the intersection. All three cars were speeding. The appellant then increased his speed to overtake Mr Nicholl Snr’s Holden. He then overtook Shannon Nicholl’s Subaru as the road began to divide into multiple lanes heading toward the next intersection. During this passing manoeuvre Shannon Nicholl moved his Subaru into the left lane, and the appellant moved his Jeep into the centre lane. The traffic light was green, and the appellant drove through the intersection just ahead of Shannon Nicholl’s vehicle. There was a bump in the road after the intersection which the appellant deposed caused him to not have full control of the Jeep momentarily.

[15]      Shannon Nicholl then lost control of his Subaru approximately 38 meters after the intersection. It spun and crashed into an oncoming vehicle. Two passengers in the Subaru were killed and another was injured.

[16]      The appellant and Matthew Gibbons continued on and stopped at a gas station about 750 metres past the crash site. They swapped back to their original seating positions. Mr Gibbons then drove them to the next location for the intended rendezvous with the group.

[17]      The appellant maintains that at this stage neither he nor Matthew Gibbons realised the crash had occurred behind them. He has filed an affidavit to that effect. The summary of facts to which the appellant pleaded guilty does not suggest otherwise.

Legal principles

[18]      The court must allow an appeal if it is satisfied that there was an error in the sentence imposed and that a different sentence should be imposed.7 The court’s focus

7      Criminal Procedure Act 2011, s 250(2).

is on the end sentence. If the process by which a sentencing judge arrives at the end sentence was flawed but the sentence can nonetheless be properly justified by accepted sentencing principles, then the appeal court will not intervene.8 Otherwise the court must dismiss the appeal.9

Further evidence

[19]      The appellant seeks leave to adduce fresh evidence on appeal, namely an updating affidavit from the appellant’s wife, Ms Nicholl, concerning the impact of his incarceration on their young son and on their business. As discussed further below,10 a ground of the appellant’s appeal is that the Judge did not give sufficient credit for this, while noting that the impact of incarceration on the child was “untested” at that time.11 The Crown does not oppose Ms Nicholl’s affidavit being admitted on appeal.

[20]      I am satisfied that Ms Nicholl’s affidavit is sufficiently fresh and credible to be admitted on appeal.   I take into account the decisions of the Court of Appeal in      C (CA153/2023) v Police12 and Ah Tong v R13 issued after the appellant was sentenced and confirming that sentencing courts must consider the impact of imprisonment on a defendant’s children. Ms Nicholl’s affidavit is updating evidence in relation to that issue.

Appellant’s submissions - Summary

[21]In summary, Ms Beaton submits that:

(a)The combined starting point of four years for the driving offences and the attempt to pervert the course of justice was stern and at the very upper limit of the available range.

(b)The Judge erred in imposing an uplift of five per cent for personal aggravating factors.

8      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33] and [36].

9      Criminal Procedure Act, s 250(3).

10     At [69] – [83].

11     R v Nicholl, above n 4, at [81].

12     C (CA153/2023) v Police [2024] NZCA 136.

13     Ah Tong v R [2024] NZCA 144.

(c)The Judge erred in his assessment of the percentage credits that should have been available for the appellant’s mitigating personal factors.

(d)This combination of errors led to a sentence that was manifestly excessive. The appropriate end point should have been no more than two years’ imprisonment.

[22]      Ms Beaton submits the end sentence should be converted to home detention. Ms Beaton emphasises the adverse impact of imprisonment on the appellant’s business and dependent staff, and the positive effect that the appellant’s family and employment have on his own mental health and prospects of rehabilitation.

Starting point

[23]      At the sentence indication the Judge indicated a starting point of three years six months’ imprisonment for the driving charges and added an additional six months for the attempting to pervert the course of justice charge. In his indication the Judge discussed how he had reached that total starting point, including by reference to Gacitua v R, which provides a list of aggravating and mitigating factors in cases involving dangerous driving that caused death.14 The appellant accepted the starting point. He does not challenge it on appeal, although Ms Beaton submits that it was stern and at the very upper limit of the available range.

[24]      The Judge recorded at sentencing that he did not see any need to alter his indicated starting point, commenting that “if anything, even on a totality basis, on reflection I may have been a little low on the uplift for the attempts to pervert the course of justice”.15 Returning to the Gacitua v R factors, the Judge assessed that the appellant’s offending fell “into the low end of the high culpability range. It is much more than simply moderate culpability”.16

[25]      Ms Beaton submits that the Judge’s comments at [60(c)-(d)] of his sentencing notes indicate that, following the jury trial of the appellant’s co-defendant, the Judge

14     Gacitua v R [2013] NZCA 234.

15     R v Nicholl, above n 4, at [62].

16 At [61].

may have formed the view that the appellant’s role in the offending was more significant than can fairly be taken from the summary of facts that the appellant accepted when he pleaded guilty.

[26]      In particular, Ms Beaton says the Judge’s comments that “had [the appellant] not engaged in the racing it is likely the tragedy would not have happened at all”17 is incorrect and unfair. She says this was not a submission made by the Crown at the sentence indication hearing; and is inconsistent with the fact that Shannon Nicholl and Mr Nicholl Snr were racing before the appellant began driving.

[27]      Similarly, Ms Beaton submits that it was unfair and incorrect of the Judge to find that the appellant behaved irresponsibly by failing to stop after Shannon Nicholl crashed.18 Ms Beaton points out that this was not alleged in the summary of facts and was a disputed issue discussed in detail at the sentence indication. She says the appellant confirmed in his affidavit that he was unaware the accident had occurred, and this is consistent with what he and Mr Gibbons both told Police at the time.

[28]      Ms Beaton also submits that the Judge referred in his sentencing notes to aggravating factors (speed and injury to others) that went beyond the accepted summary of facts. Ms Beaton submits the Judge must have taken into account evidence adduced at Mr Nicholl Snr’s trial, but which was not disclosed to the appellant or relied upon by the Crown at the sentencing indication.

[29]      Although the Judge did not alter his starting point, Ms Beaton suggests the Judge’s views of the appellant’s culpability may account for what she submits is the stern approach the Judge took in calculating credits for mitigating factors. Ms Beaton submits that this Court should keep these natural justice issues in mind when assessing the appellant’s culpability, the approach to mitigating factors and the application of the purposes and principles of sentencing.

17     At [60(c)].

18     At [60(d)].

Adjustments

Uplift for previous criminal convictions

[30]      The Judge correctly noted19 that sentencing judges are required to take into account an offender’s previous convictions.20 However, it is well-established that any increase in sentence should not merely be for the presence of previous convictions.21 The purpose of considering previous convictions is to account for indicators of character and culpability, the need for a greater deterrence response or as an indicator of a risk of reoffending.22

[31]      The Judge noted counsel’s submission that, in light of an expert psychiatrist’s report filed by the appellant, there should be no uplift because the appellant’s previous convictions are unlikely to serve the purpose of protecting the public. Counsel submitted that the focus should be on rehabilitation and that any uplift was proportionate to the starting point.23

[32]The appellant’s relevant previous convictions are:

Offence date	Offence	Sentence
May 2021	Exceeded 80km/h in a gazetted area	$700 fine plus court costs
October 2016	Sustained loss of traction	7 weeks’ imprisonment, imposed in February 2020 after a review of a community-based sentence imposed in May 2017
February 2012	Drove while license suspended	Disqualified from driving for six months

19 At [63].

20     Sentencing Act 2002, s 9(1)(j).

21     R v Casey [1931] NZLR 594 (CA) at 597.

22     Reedy v Police [2015] NZHC 1069 at [19].

23     Te Hau v R [2013] NZCA 431 at [18].

July 2008	Driving while disqualified	$600 fine, disqualified from driving for six months
November 2009	Sustained loss of traction	70 hours community work, disqualified from driving for six months
December 2009	Reckless driving	120     hours     community work,    disqualified    from driving for six months

[33]      The appellant also has a history of traffic infringement offences attracting demerit points between 2007 and 2002. As noted, he was suspended from driving at the time of his offending. The appellant was also before the Judge for sentencing on a charge of sustained loss of traction committed in August 2022 while he was on bail.

[34]In making the uplift the Judge concluded that:24

Plainly, [the appellant] does have some tendency to commit driving offences. However, some are getting older. The most recent was in 2021, the excessive speed conviction but not overlooking that there is now the sustained loss of traction committed after the crash and while on bail. I am satisfied given the matters discussed, that a small uplift of five per cent is required to take account of the previous convictions and the offending while on bail. There are no other relevant factors to consider in respect of uplifting the starting point.

[35]      Ms Beaton accepts the five per cent uplift (which equates to 2.4 months) is modest but submits it is disproportionate. Ms Beaton says this is not a serious history of offending, with the convictions being dealt with by way of fine or community based sentences (other than the reviewed sentence in 2020). Ms Beaton submits that imposing an uplift of imprisonment on account of those relatively minor offences is punishing the appellant twice.

24     R v Nicholl, above n 4, at [65].

[36]      Ms Beaton acknowledges that offending on bail is relevant but submits that this was at the very lowest end of the scale and would never have attracted a sentence of imprisonment on a standalone basis.

[37] Ms Beaton also refers to Dr Foulds’ expert opinion (discussed in more detail at [61] below) that for some time the appellant has been under-treated for his attention deficit hyperactivity disorder (ADHD), which largely explains any anti-social personality traits he might exhibit.

[38]      I do not consider that the Judge erred in applying the five per cent uplift. I accept Ms Collett’s submission for the Crown that the appellant’s previous offending, despite being at the lower end of the scale, is repetitive and indicates a tendency to commit the type of offending which led to the appellant being sentenced.25 The uplift takes into account the sentencing purposes of protecting the community as well as deterring and denouncing the appellant’s conduct.

Insufficient credit for personal mitigating factors

[39]The appellant sought and obtained credit for each of the following factors:

(a)Guilty plea: The sentence indication was one week before trial. The Judge indicated a credit of 12.5 per cent which the appellant accepted. It is not challenged on appeal.

(b)Remorse: The Judge gave a credit of 10 per cent taking into account remorse, the voluntary reparation payment of $5,000 and a willingness to engage in a restorative justice process. On appeal the appellant submits this was inadequate and should have been 15 – 20 per cent.

(c)Mental health/neurodiversity: The Judge gave a discount of 10 per cent. On appeal the appellant submits that this was inadequate and should have been 15 per cent.

25     Citing Jones v R [2021] NZCA 402 at [33].

(d)Prospects of rehabilitation: The Judge gave a discount of three per cent. There is no challenge on appeal.

(e)Impact of imprisonment on dependent child: The Judge gave a credit of 7.5 per cent. On appeal, the appellant submits that this was inadequate and should have been 10 – 15 per cent.

(f)Impact of imprisonment on appellant’s business: No specific discount was given for this. On appeal, the appellant submits it should have mitigated the length and type of sentence.

[40]I deal with each of these in turn.

Remorse, reparation and willingness to participate in restorative justice

[41]      The Judge accepted that the appellant was genuinely remorseful and had suffered with the loss of close family members and a friend because of the offending.26 The Judge applied a global discount of 10 per cent to reflect remorse, his willingness to participate in a restorative justice conference (which did not take place in the end) and his offer to make a reparation payment of $5,000.27

[42]      Ms Beaton submits this was manifestly inadequate. She says a discount in the range of 15 to 20 per cent was appropriate.

[43]      Counsel refers to the appellant’s affidavit and letters of apology in which he expresses remorse for his part in the offending and the loss suffered. In her affidavit Ms Nicholl also observes the impact the offending has had on the appellant. The author of the Provision of Advice to Courts (PAC) report also confirms the appellant’s remorse.

26 At [71].

27 At [72].

[44]      Ms Beaton points to various authorities where discounts greater than 10 per cent were applied for remorse: McMillan v Police,28 Brampton v Police,29 Xiao v Police,30 Edmonds v R,31 and R v Grace.32

[45]      McMillan v Police: On appeal, a credit of 11 per cent for remorse was increased to 20 per cent. The appellant was sentenced for two counts of driving with excess blood alcohol causing death and driving with excess blood alcohol causing injury. The appellant had crossed the centre line and collided with an oncoming vehicle. The other driver died at the scene and her daughters, aged five and seven, suffered severe injuries including head injuries, some bleeding of the brain, broken bones and lacerations. A restorative justice conference was convened between the appellant and some of the victims. The appellant expressed his remorse directly and in a letter. He paid $20,000 reparation.

[46]      Brampton v Police: The appellant was sentenced for driving with excess breath alcohol causing death, and failing to stop after an accident to ascertain injury. The District Court allowed a 10 per cent credit for remorse and two months credit (approximately three per cent) for the restrictive nature of his bail curfew conditions pending sentence. Thomas J described the credit for remorse as “modest” but observed that if this had been the only issue on appeal she would have been minded not to interfere with the sentence. However, given that her Honour had previously determined to reduce the starting point she considered it was also appropriate that “the appellant’s extensive remorse is recognised by a discount of 15 per cent, to include his bail situation”.33

[47]      Xiao v Police: The appellant was sentenced for dangerous driving causing death. The Probation Officer considered the appellant to be genuinely remorseful. She had written a letter of apology to the victim’s family and was willing to engage in restorative justice. She was described as upset and withdrawn following the accident. Accordingly, the District Court Judge applied a 35 per cent credit “for [the appellant’s]

28     McMillan v Police [2014] NZHC 150.

29     Brampton v Police [2015] NZHC 2618.

30     Xiao v Police [2016] NZHC 1947.

31     Edmonds v R [2020] NZHC 662.

32     R v Grace [2020] NZHC 3145.

33     Brampton v Police, above n 29, at [57].

personal mitigating factors including her remorse and an offer of $10,000 in reparation”. The High Court quashed the sentence of imprisonment and substituted home detention. The starting point and credits applied were not disturbed on appeal.

[48]      Edmonds v R: The appellant pleaded guilty to driving a vehicle causing death while under the influence of alcohol. From a starting point of 3.5 years’ imprisonment, the District Court Judge reduced the sentence by five months for what the Judge accepted was genuine remorse (approximately 12 per cent). An additional six months was deducted for other matters, and 25 per cent for a guilty plea. The High Court held the starting point was “somewhat high” but determined the end point of one year and nine months was not manifestly excessive.  The credits were not disturbed on appeal.

[49]      R v Grace: The defendant was sentenced for driving with excess blood alcohol causing death, driving with excess blood alcohol causing injury and driving while disqualified. The offending caused the death of the defendant’s four-year-old son. From a starting point of four years, the Court applied a reduction of 20 per cent for her remorse and to reflect the “on-going grief which is as difficult a punishment as any the Court could impose”. A further 10 per cent reduction was made for her prospects of rehabilitation considering the adversity suffered, and 25 per cent credit for her guilty plea. Ten months’ home detention was ultimately imposed.

[50]      Ms Beaton submits that the appellant’s genuine remorse coupled with ongoing grief is similar to the circumstances in Grace where a 20 per cent reduction was applied for those factors. She says that in Edmonds, the Judge treated the appellant’s insight with caution yet still applied a 12 per cent  discount for genuine  remorse.  Ms Beaton says that the evidence of remorse in the present case is, at the very least, comparable to the evidence of remorse present in Brampton, where 15 per cent was applied. She also says that the present case has some similarities with McMillan in that the remorse is comparable and has been accepted by the family of one of the deceased, Mark Nicholl Jnr.

[51]      Overall, Ms Beaton submits that in order to be consistent with the above cases the Judge should have given a discount of 15 to 20 per cent for the appellant’s remorse,

grief, willingness to participate in restorative justice and the offer to pay $5,000 emotional harm reparation.

[52]      Ms Collett submits that the 10 per cent discount for these factors granted by the sentencing Judge was within range and beyond challenge. She refers to the recent case of Kohu v R34 in which the Court of Appeal commented that “[w]here established, remorse tends to attract a discrete discount of between five and 15 per cent”.

Analysis

[53]      It is well established that separate credit should be given for genuine remorse.35 Whether genuine remorse is demonstrated is necessarily evaluative and is a question of fact and judgment.36

[54]      I accept the Crown’s submission that the 10 per cent discount for remorse, reparation and engagement in the restorative justice process was well within the range available to him.

[55]      The Judge noted the submission of counsel for the appellant at sentencing (not Ms Beaton) that the appellant should receive an eight per cent credit for his genuine remorse and a further five per cent to take into account both his offer to attend a restorative justice conference and make an emotional harm payment of $5,000.37 The Crown submitted that a combined discount of 13 per cent was excessive and that a discount of 5 to 10 per cent was appropriate.38

[56]      The Judge stated that the discounts for remorse ordinarily warrant discrete discounts between five to eight per cent.39 His Honour considered that the appellant’s remorse was similar to that expressed by the defendant in Rowles v R40 where the Court

34     Kohu v R [2023] NZCA 343.

35     Sentencing Act, s 9(2)(f); and Hessell v R [2010] NZSC 135.

36     Sweeney v R [2023] NZCA 417 at [18].

37     R v Nicholl, above n 4, at [70].

38 At [71].

39 Citing McArthur v R [2013] NZCA 600 at [13] – [14]; Watene v R [2014] NZCA 381 at [18]; and Poi v R [2015] NZCA 300 at [7] – [8], referred to in Hajnal-Huata v New Zealand Police [2020] NZHC 468 at [40].

40 Rowles v R [2016] NZCA 208.

of Appeal allowed a credit of eight per cent for remorse alone and ultimately settled on 10 per cent for personal factors including remorse.

[57]      In each of the cases relied upon by Ms Beaton the appellant had also been given a 25 per cent discount for pleading guilty at the earliest opportunity. On the other hand, the appellant pleaded guilty within one week of trial, and then only after a sentence indication, and previously, an unsuccessful s 147 application. In those circumstances he seeks a greater credit for remorse than the 12.5 per cent he received for his guilty plea. The Court of Appeal observed in Moses v R that the circumstance surrounding a guilty plea can also evidence a defendant’s remorse:41

… a guilty plea is not synonymous with remorse but may evidence it. The plea is an act of confession to a wrong done, and it is commonly associated with contrition and a desire for expiation. It follows that guilty plea and remorse discounts may be paired, and very often are: a defendant who pleads guilty at the earliest reasonable opportunity may also earn a remorse discount, while another who delays the plea until arraignment at trial may be denied both discounts.

[58]      That is not to suggest that the appellant ought to be denied a discount for remorse. Like Judge Lynch I accept that the appellant’s remorse is genuine. The Crown does not suggest otherwise.  However, having regard to all the circumstances I do not accept that the 10 per cent credit was so low as to be an error requiring correction on appeal.

Mental health/Neurodiversity

[59]      The appellant has a long-standing diagnosis of ADHD. Evidence filed at sentencing included a report from Dr Foulds stating that “[the appellant]’s driving offences stem from his ADHD coupled with other contextual factors”.

[60]      At sentencing, counsel for the appellant sought a credit of 15 per cent in light of this causative link.42 The Crown submitted a credit of five per cent was appropriate.

[61]      The Judge accepted there was some causal connection between the appellant’s ADHD and his offending. Although the appellant was not undiagnosed and untreated,

41     Moses v R [2020] NZCA 296 at [25].

42     R v Nicholls, above n 4, at [73].

Dr Foulds was of the view that the appellant was under-medicated, especially as the medication wore off during the day. The Judge accepted this likely exacerbated the appellant’s compulsive behaviour and poor decision making. He assessed a discount of 10 per cent to be appropriate, referring to this Court’s decision in R v Tiddy.43

Submissions

[62]      Ms Beaton submits that the 10 per cent discount was inadequate and should have been at least 15 per cent.

[63]      Ms Beaton refers to E (CA689/10) v R44 in which the Court of Appeal confirmed that discounts of between 12 per cent and 30 per cent are appropriate when mental illness has contributed to offending. The Court of Appeal noted that impaired mental function may be relevant to sentencing in various ways.45 It might reduce the offender’s moral culpability, and therefore the relevance of denunciation and general or specific deterrence46 as a sentencing objective.

[64]      Ms Beaton submits that the appellant’s decisions to get into the driver’s seat and to speed in a superior vehicle to catch up and then pass his friends were impulsive and directly linked to his ADHD. She distinguishes R v Tiddy on that basis.

[65]      Ms Collett submits that the 10 per cent discount was generous. She refers to parts of Dr Foulds’ report which, she suggests, indicate there are other factors unrelated to the appellant’s ADHD and possible under-medication that make him more prone to dangerous and risk-taking behaviour.

Analysis

[66]      In my assessment the Judge’s credit of 10 per cent to account for the appellant’s ADHD was well within the range reasonably available to him. I accept there may have been some causative link between the appellant’s ADHD and his request to get into the driver’s seat to race his cousin and his uncle. However, he was diagnosed

43     R v Tiddy [2023] NZHC 2288.

44     E (CA689/10) v R [2011] NZCA 13 at [71].

45 At [70].

46     Also citing Zhang v R [2019] NZCA 507.

with ADHD as a child and has been medicated since then. To the extent that the appellant’s offending was caused by his under-medication as an adult, the appellant’s list of previous offences should have put him on notice that this was an issue he needed to address.

Discount for impact of imprisonment on his child

[67]The appellant has two children.

[68]The appellant’s [REDACTED].47

[69]      The Judge was satisfied [REDACTED].48 He referred to the Supreme Court’s decision in Phillip v R.49 Otherwise, the Judge did not consider there was evidence that the imprisonment of the appellant would have a detrimental effect on Ms Nicholl’s ability to care for their child, beyond detrimental effects that ordinarily flow from the imprisonment of a partner and a parent. The Judge assessed a discount of 7.5 per cent to be appropriate.

Submissions

[70]      As noted above,50 Ms Nicholl filed fresh evidence on appeal. She explains that their son has deteriorated since the appellant went to prison. He has become moody and is often angry. Because the appellant’s wife is so much busier with their business, she has less time to spend with their child. In this regard she explains that she is up well before dawn to ensure their employees get work underway, but without the appellant’s involvement this can be difficult. She says income is down and there is a significant risk they will lose business.

[71]      As noted, since the appellant was sentenced on 5 March 2024, the Court of Appeal has delivered two judgments where appeals have been allowed and credits given (or increased) for the impact of imprisonment on dependent children.51 In

47     R v Nicholls, above n 4 at [80] – [81] (redacted).

48     At [81] (redacted).

49     Phillip v R [2002] NZSC 149, citing R v Harlen (2001) 18 CA NZ 582 (CA) at [22].

50 At [19].

51     C (CA153/2023) v Police, above n 12; and Ah Tong v R, above n 13.

C (CA153/2023) v Police the District and High Courts had both declined to apply such a credit because of the seriousness of the offending. Allowing a second appeal, the Court of Appeal disagreed and also allowed a 15 per cent discount to take into account the impact on the appellant’s child of being separated from the appellant. The child was being cared for by his father but had a particular bond with the appellant, his mother.

[72]      In Ah Tong the Court of Appeal considered that the sentencing Judge ought to have allowed a further discount of 10 per cent to recognise the significant adverse implications of separation for the defendant’s 11-year-old child. The Court also considered that the appellant’s rehabilitation prospects were best enhanced by him sustaining his parental role. Without the 10 per cent discount, the sentence was manifestly excessive.

[73]      Ms Beaton submits that the Judge’s reasoning in the present case understated the impact of the appellant’s incarceration on his son, and the 7.5 per cent discount was out of step with comparable case law. She also suggests that the appellant’s rehabilitation prospects will be enhanced by enabling him to properly fulfil his parental role.

Analysis

[74]      In Ah Tong, the offender was the sole parent of his 11-year-old daughter with whom he had a strong bond. His sentence of five years’ imprisonment resulted in his daughter having to live with her mother, with whom she did not have a strong relationship. The Court described this as “effectively a forced foster parent arrangement”.52

[75]      In the present case the appellant’s son remains in the care of his competent and loving mother. The Judge allowed the 7.5 per cent credit to reflect the appellant’s inherent understanding [REDACTED]. This credit might have been greater, but I accept the Crown’s submission that it was within the range reasonably available, taking into account the relevant Court of Appeal judgments since then.

52     Ah Tong v R, above n 13, at [14].

Failure to recognise the impact on the appellant’s business

[76]      Counsel for the appellant submitted to the Judge that the end sentence should be at or very close to 24 months’ imprisonment, and the Court should take into account the impact of imprisonment on the appellant’s business and convert the sentence to one of home detention. As noted, Ms Nicholl has given updating evidence about the additional burden falling to her. She says that despite her best efforts the business is suffering as a result of the appellant’s absence.

[77]      Ms Beaton submits that the Judge erred by not taking these factors into account through discrete credits or in determining the appropriate end sentence.

Analysis

[78]      Given his assessment of the personal mitigating factors the Judge had no jurisdiction to consider home detention. As the Court of Appeal has subsequently made clear in C (CA153/2023) v Police, there is no relevant concept of an end sentence being “on the cusp” of home detention. The end sentence is either eligible to be converted to home detention, or it is not.53 On the Judge’s analysis, it was not.

[79]      I accept Ms Nicholl’s evidence that the appellant’s imprisonment is having adverse consequences on her and on their business. However, for the reasons I have set out, I do not consider that the Judge erred in his analysis.

Outcome

[80]      As will always be the case, the Judge might reasonably have allowed a greater (or lesser) discount for each of the personal mitigating factors referred to above. However, for the reasons I have set out I do not consider that he erred in applying the credits he did.

[81]      In any event, when standing back and having regard to all the circumstances, I do not consider that a different sentence should be imposed. The end sentence must be what is appropriate for the individual circumstances of the offending and the

53     C (CA153/2023) v Police, above n 12, at [48].

offender, and in accordance with the purposes and principles set out in the Sentencing Act. It is the appeal Court’s role to correct errors and ultimately it is the sum of the individual parts of a sentence that must be correct.

[82]      I agree with the Judge that the sentencing principles of denunciation and deterrence are most relevant. For all the reasons set out above I am satisfied that the Judge applied the relevant principles and properly took into account the particular circumstances of the appellant and his offending. I accept the Crown’s submission that there is no error of law requiring correction, and the end sentence was within the range reasonably available.

Result

[83]The appeal is dismissed.

Robinson J