[1] On 22 January 2025 S was sentenced to six years and nine months’ imprisonment by Judge Harding in respect of the following charges, to which S pleaded guilty:1

(a)two charges of impeding breathing;2

(b)one representative charge of perverting the course of justice;3

1      R v [S] [2025] NZDC 1182 [Decision under appeal]. A final protection order was also made. The appellant’s name is anonymised to protect the identity of the victim.
2      Crimes Act 1961, s 189A(b)—maximum sentence seven years’ imprisonment. The sentencing Judge referred to one of the charges being of a representative nature although the Crown charge list described them both as representative. Counsel were not able to clarify the position. In any event, there are three strangulation incidents described in the summary of facts.
3      Crimes Act, s 117(e)—maximum sentence seven years’ imprisonment.

S v R [2025] NZHC 997 [30 April 2025]

(c)one charge of theft (under $500);4

(d)two charges of driving while suspended;5 and

(e)two charges of breaching an extended supervision order (ESO).6

[2] S appeals his sentence on the basis it is manifestly excessive as the overall starting point was too high, and no adjustment was made for totality.

[3] The Crown opposes the appeal and say the sentence is not manifestly excessive.

[4]For the reasons set out below, I dismiss the appeal.

The offending

Strangulation and theft

[5] The victim is S’s former partner. At the time of the offending, a non-association order was in place preventing S from being within 20 metres of her home.

[6] On 9 December 2023, S spent the day at the victim’s home as she was unwell and had requested his help to look after their young daughter. When the victim was in the shower, S looked at her phone and became upset with some messages he saw on it. He entered the bathroom, grabbed her by the throat and pushed her up against the wall. The victim was naked. The victim was unable to breathe or speak. She felt that she was “becoming unconscious” but S let her go just before she lost consciousness. The victim’s body was “flailing about” and she could not remember much after that point. The victim describes the force used during this strangulation as a nine out of 10. She believed that S was intending to cause her to lose consciousness or kill her.

[7]S took the victim’s phone and did not return it, giving rise to the charge of theft.

4      Crimes Act, ss 219(a) and 223(d)—maximum sentence three months’ imprisonment.
5      Land Transport Act 1998, ss 32(1)(c) and 32(3)—maximum sentence three months’ imprisonment or $4,500 fine.
6      Parole Act 2002, s 107TA—maximum sentence two…

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 S v The King

Details

AGLC: S v The King [2025] NZHC 997
Case: [2025] NZHC 997
Decision Date: 30 April 2025

CaseChat Overview and Summary

S appeals against his sentence, arguing it is manifestly excessive. The appeal is dismissed. S was sentenced to six years and nine months’ imprisonment for multiple charges, including two charges of impeding breathing, perverting the course of justice, theft, and driving while disqualified and breaching an extended supervision order. The appeal court considered the sentencing process in light of the aggravating factors of the offending and the law on strangulation. It concluded that the sentence was not manifestly excessive, and was within the range reasonably available to the sentencing Judge. The appeal court found that an appropriate starting point for the strangulation charges was five years, and three years for the perverting the course of justice charge. It considered that a totality adjustment of one year and seven months’ imprisonment was appropriate, resulting in a suggested end sentence of seven years. However, the court concluded that the end sentence of six years and nine months’ imprisonment was just and within the range reasonably available to the sentencing Judge.

Orders