Popham v Police - [2025] NZHC 2650

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2025-412-56

[2025] NZHC 2650

BETWEEN
NICHOLAS ALAN POPHAM

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 11 September 2025

Appearances:

K E Tohill for Appellant (via VMR)

J C Collins for Respondent (via VMR)

Judgment:

12 September 2025

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 12 September 2025 at 9.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

POPHAM v NEW ZEALAND POLICE [2025] NZHC 2650 [12 September 2025]

Introduction

[1] Nicholas Popham (aged 35) has pleaded guilty to three charges of wilful damage,1 two charges of speaking threateningly,2 and charges of common assault,3 assault in a family relationship,4 and driving while suspended.5 On 23 July 2025, he was sentenced by Judge Smith to five months’ home detention.6 Mr Popham now appeals his sentence on the grounds there was an error in calculating the deduction for time already spent in custody when sentencing him to home detention, and so the end sentence was manifestly excessive.

Facts

[2] On 27 May 2024, Mr Popham was served with a licence suspension. On 2 June 2024, police stopped a vehicle in Gibbston and Mr Popham was confirmed to be the driver.

[3] On 21 August 2024, Mr Popham was living with his partner and their three and a half-year-old son. There had been a deterioration in his relationship, and his partner had told him she did not want to be in the relationship anymore.

[4] For the purposes of this appeal, it is not necessary to detail the offending against the victim, particularly as the starting point is not challenged. Suffice to say Mr Popham physically attacked the victim several times, at one stage pulling her hair so hard some came out. He also broke her phone, burnt some of her clothing, damaged her vehicle and threatened her, including while holding a knife.

District Court decision

[5] The Judge adopted a starting point of 12 months’ imprisonment for the assault on a person in a family relationship with an uplift of three months for the further

1      Summary Offences Act 1981, s 11(1)(a); maximum penalty three months’ imprisonment or $2000 fine.
2      Section 21(1)(a); maximum penalty three months’ imprisonment or $2000 fine.
3      Crimes Act 1961, s 196; maximum penalty one year’s imprisonment.
4      Section 194A; maximum penalty two years’ imprisonment.
5      Land Transport Act 1998, s 32(1)(c) and (3); maximum penalty three months’ imprisonment or
$4,500 fine.
6      Police v Popham [2025] NZDC 17470.

assault charge, three months for the wilful damage charges, two for the speaking threateningly and one for the driving while suspended. The adjusted starting point was 21 months’ imprisonment. This was reduced by 25 per cent for his guilty pleas, which resulted in a nominal prison sentence of 16 months. The Judge assessed totality and made no amends to this sentence.

[6]When considering time in custody and on restrictive bail, the Judge held:

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.

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Details

Case: [2025] NZHC 2650
Decision Date: 12 September 2025

CaseChat Overview and Summary

Nicholas Alan Popham has appealed against his sentence, arguing that there was an error in calculating the deduction for the time he spent in custody while awaiting trial and on restrictive bail, resulting in a sentence that was manifestly excessive. The sentence in question was a total of five months' home detention for various charges, including assault in a family relationship, wilful damage, speaking threateningly, and driving while suspended. The District Court had imposed a nominal prison sentence of 16 months, reduced by 25% for early guilty pleas, and then further reduced to 10 months after accounting for time in custody and restrictive bail. However, when converting this to home detention, the District Court halved the sentence to five months without properly accounting for the full credit for time served. The appeal focused on whether the calculation of the time spent in custody and on restrictive bail was correctly applied.

The court considered the principles of sentencing and the appropriate method for calculating a credit for time spent in custody when converting a sentence to home detention. The court found that the District Court had erred in its calculation by not fully crediting the time spent in custody. The court held that the appropriate approach is to first halve the nominal prison sentence to convert it to a home detention sentence and then deduct the time spent in custody from this new sentence. The court concluded that the correct approach, as outlined in R v Tai, results in a sentence of one month's home detention, which it deemed to be manifestly excessive compared to the five months' home detention originally imposed.

The appeal was allowed, and the sentences of five months and three months' home detention were quashed and substituted with a sentence of one month's home detention on all charges. The court emphasized the importance of correctly calculating the credit for time spent in custody when imposing a sentence of home detention to ensure that the sentence is just and not manifestly excessive.

Orders