Tudor v Police
[2025] NZHC 2275
•12 August 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2025-409-129
[2025] NZHC 2275
BETWEEN HAYDEN MATHEW TUDOR
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 7 August 2025 Appearances:
B S T Moore for Appellant G L Collett for Respondent
Judgment:
12 August 2025
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 12 August 2025 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
TUDOR v NEW ZEALAND POLICE [2025] NZHC 2275 [12 August 2025]
Introduction
[1] Hayden Tudor pleaded guilty on four charges of assault with intent to injure1 and one charge of assault on a child.2 On 20 May 2025, he was sentenced by Judge Orchard to 19 months and two weeks’ imprisonment.3 Mr Tudor now appeals that sentence on the ground the Judge erred by not granting leave to Mr Tudor to apply for home detention to a residential rehabilitation programme and the end sentence was resultingly manifestly excessive.
Facts
[2] The appellant was sentenced on violence charges committed against his partner, which also included an assault on her son when he tried to stop the assault on his mother. The charges arose from events on 12 March 2025, with the assaults on his partner including pulling her by the hair, punching her repeatedly in the head and stomach and pushing her head into a brick wall. The charge against his partner’s child involved pulling him by his hair and slapping him once in the face with an open hand.
District Court decision
[3] The Judge considered there were significant aggravating features of the offending, including that the offending took place in the victim’s home; that it was a sustained and very serious assault, which focussed on the victim’s head; that it occurred in front of her two children; and that the appellant pursued the victim when she fled, and tried to dissuade her from phoning the police.
[4] A starting point of 24 months imprisonment was adopted, with a two-month uplift for his previous history of violence. A 25 per cent credit was allowed for the early guilty plea. No further credit was extended, with the Judge rejecting the submission that credit ought to be allowed for a preparedness to attend rehabilitation.
1 Crimes Act 1961, s 193; maximum penalty three years’ imprisonment.
2 Section 194(a); maximum penalty two years’ imprisonment.
3 Police v Tudor [2025] NZDC 11186.
[5] While there were conflicting findings between the pre-sentence report and the Alcohol and Drug report (AOD report), the Judge preferred the pre-sentence report, noting “[t]he report writer … is an independent professional and the Courts are entitled to accept what they say as being accurate.”4 The Judge accepted that despite his expressed regret for the way he had behaved, that had “not translated into any positive move to address [his] offending attitude and sense of entitlement”.5 The Judge was also critical of Mr Tudor’s statement to the pre-sentence report writer that he struggled to believe he was entirely to blame, saying “[his] partner knew [he] was an alcohol[ic] when they first started the relationship so she knew what [he] was like”.6
[6] The Judge also declined leave to apply for home detention for the same reasons that she declined to extend credit for the preparedness to engage in rehabilitation. She also said:7
[T]he nature of this assault is so serious that purposes of denunciation which really means punishment, and deterrence, particularly of you, should take precedence over anything and for that reason I am not prepared to grant you leave to apply for home detention. You can serve your sentence and then you can look at rehabilitation if you are sincere.
Principles on appeal
[7] 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
4 At [15].
5 At [11].
6 At [12].
7 At [17].
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
[8] Mr Moore, for the appellant, submits the Judge erred by not granting leave to Mr Tudor to apply for home detention to a residential rehabilitation programme. He submits the Judge erred in adopting the conclusions of the pre-sentence report over those of the AOD report.
[9] Odyssey House has now confirmed a placement for Mr Tudor in its residential rehabilitation facility with an admission date of 9 September 2025. Mr Moore seeks to adduce fresh evidence from Odyssey House confirming this placement. Mr Moore advises that the appellant has consciously not sought further credit for the causal connection between his addiction, the offending, and his motivation to take rehabilitative steps. On appeal, he only seeks leave to apply for home detention.
[10] If leave is not granted, then on Mr Tudor’s release date (currently scheduled for 3 January 2026), Mr Moore submits Mr Tudor will remain untreated for his alcohol addiction; be released with limited support; and he will likely have to wait to be admitted to an intake at Odyssey House. Mr Moore submits this combination will lead to a high risk of relapse and will likely undo any progress made during Mr Tudor’s period of detox. In light of this, Mr Moore submits home detention should be granted to allow Mr Tudor to attend structured rehabilitation.
Respondent’s submissions
[11] Ms Collett, for the respondent, submits there was no error in the District Court decision. The Judge considered whether to grant leave to apply to home detention but concluded this was not an appropriate sentence and declined to do so. Ms Collett submits the Judge did not err; the appellant has a lengthy history of violence, and has previously received several rehabilitative sentences, which were intended to address the causes of his offending. Having come before the Court yet again for similar offending, the Judge was entitled to prioritise the sentencing principles of denunciation and deterrence, over the appellant’s expressed commitment to rehabilitate.
Analysis
Leave to adduce fresh evidence
[12] Mr Moore seeks to adduce fresh evidence on appeal, namely the letter from Odyssey House confirming that placement is available and the conditions that Mr Tudor will be under. This was not available at the time of sentencing. Odyssey House has a protocol that it will not assess a client if there is an active referral to an alternative residential rehab provider. At the time of sentencing, Mr Tudor had an active referral to St Marks, which was ultimately declined.
[13] This application is not opposed. I am also satisfied the letter is fresh and relevant, and I grant leave to adduce it on appeal.
Leave to apply for home detention
[14] The only ground of appeal was whether the Judge erred by not granting leave to Mr Tudor to apply for home detention to a residential rehabilitation programme. Where a short sentence of imprisonment is imposed and there is no error apparent in coming to that sentence, the only issue is whether the appellant would have had a sentence of home detention imposed if a suitable residence had been available at sentencing.11
[15] The Judge specifically considered leave to apply for home detention under s 80I of the Sentencing Act 2002. At sentencing there was no appropriate address for home detention, and the Judge declined to grant leave for the reasons set out at [6] above and noting that:12
You can serve your sentence and then you can look at rehabilitation if you are sincere. There will be opportunities for you to take that up and I suppose at least a sentence of imprisonment will give you hopefully a period of time where you are, of necessity, abstinent and perhaps that will give you more clarity in your thinking than you presently have.
11 Sentencing Act 2002, s 80I; and Deacon v Police [2024] NZHC 2576 at [39].
12 Police v Tudor, above n 3, at [17].
[16] On appeal, Mr Moore first raises concerns with the Judge’s adoption of the pre-sentence report’s findings. While the AOD report says Mr Tudor “seems remorseful”, the pre-sentence report says he has a “lack of insight”, although it also said he took “full responsibility” for his offending. Mr Moore submits the reports, therefore, provide conflicting information and the findings of the AOD report should be preferred as the findings within the pre-sentence report are contradictory; and the AOD report writer has specialist knowledge. The AOD report consistently found Mr Tudor remorseful and genuinely motivated to address his addiction. The AOD report writer identified Mr Tudor’s anxiety was a withdrawal symptom, and recommended medication to assist. In contrast, Mr Moore submitted the pre-sentence report writer opined this was a mental health issue.13
[17] While Mr Moore submits that the pre-sentence report write makes contradictory findings, saying that “[a]lthough Mr Tudor was hesitant at first he did eventually accept responsibility for his actions but struggled to believe that he was entirely to blame”, however “[w]hen canvassing the Summary of Facts Mr Tudor did not dispute them and took full responsibility and at no time did he try to diminish his actions”, I do not read these statements as necessarily contradictory. Where the pre-sentence report writer records that Mr Tudor did not deny the offending had occurred and “at no time … tr[ied] to diminish his actions” that was in specific reference to the summary of facts. The report makes clear that the responsibility taken by Mr Tudor for the behaviour that prompted those actions was not consistent throughout the interview. Instead, Mr Tudor believes that “things happen” to him and he “struggled to believe he was entirely to blame”.
[18] Similarly, I do not find there is any notable inconsistency in the pre-sentence report regarding rehabilitation. The report writer notes that while “Mr Tudor purports regret for the way he behaved” and “presents as wanting to make changes” to his unstructured lifestyle, “this [had] not translated into any positive move to address his offending attitudes”. The AOD report, in contrast, simply says that Mr Tudor appeared genuine in his desire to make significant changes to his alcohol use. While I accept the two reports do not reach exactly the same conclusions, the Judge was entitled to
13 Although I could not find such a statement in the pre-sentence report.
prefer one over the other, particularly when it seems Mr Tudor’s attitudes to his offending were examined in more detail by the pre-sentence report writer.
[19] In terms of his rehabilitative potential, Mr Moore advises that Mr Tudor has acknowledged a longstanding addiction to alcohol, and while he has not previously received substantive assistance with this or had a period of substantial detox to address these issues, he has now identified his problematic use of alcohol and its driving force behind his offending, and that he wants to address his addiction, not simply express remorse.
[20] Mr Tudor has a lengthy list of convictions for family violence and general violence offending. Although the most recent was in 2019 for threatening behaviour and assaulting police, the remainder of his violence convictions occurred between 1995 and 2018 and include two convictions for breaches of protection orders, one of threatening to kill, five male assaults female, one wilful damage, four common assaults and one assault with a weapon.
[21] After considering the appellant’s previous convictions and the pre-sentence report, the Judge was not prepared to give credit for willingness to engage in rehabilitation. Ms Collett submits this was open to the Judge given the number of rehabilitative sentences imposed previously on the appellant, with special conditions tailored to address the risk of re-offending, and the lack of impact these had on the appellant. Ms Collett relies on Roberts v Police where this Court held it was entitled, in appropriate cases, to consider an applicant to be disqualified from a sentence of home detention simply by reason of a poor record of past compliance.14
[22] Here, the respondent accepts that Mr Tudor does not have poor compliance with past sentences. However, he has had many opportunities to engage in rehabilitative treatment and he has not done so. He was sentenced to imprisonment in 1995 and 1999. He was sentenced to supervision with a special condition to attend a stopping violence programme in 2012. He was sentenced to home detention (which was imposed by a small margin) on family violence offending in 2013 with a special condition not to possess or consume alcohol and warned he needed to address the
14 Roberts v Police HC Whangarei, CRI-2008-488-70, 17 December 2008 at [8].
causes of his violent offending. Since then, he has engaged in further low-level offending and was sentenced to supervision in 2019.
[23] On reviewing the appellant’s criminal history since then, I accept that the appellant has not taken previous opportunities to change and his current motivation for rehabilitation was fairly described by the Judge as “parachute repairs” prior to sentencing. However, I also accept that, unlike in Oltaches v Police, which Ms Collett referred to, there had been no specific opportunity to undertake a drug and alcohol programme before.15
[24] The real issue therefore is whether the Judge erred in assessing that deterrence and denunciation should take precedence over what Mr Moore says are the interests of the victims, protection of the public and supporting Mr Tudor’s rehabilitation by allowing leave to apply for home detention so Mr Tudor can attend a rehabilitative facility such as Odyssey House.
[25] While at the time of sentencing there was no suitable residence available to the appellant, it is apparent from the sentencing notes that it was not the reason why leave under s 80I was not granted. The defendant’s submissions at sentencing specifically sought leave to apply for home detention should a residential programme become available. Instead, the Judge determined that if the appellant’s desire to rehabilitate was sincere, then it could be attended to following the completion of sentence. To assist, she imposed all the special conditions recommended in the pre-sentence report including attendance at an alcohol and drug treatment programme.
[26] I consider that in doing this, the Judge gave sufficient regard to the sentencing purposes of rehabilitation and reintegration of the offender while acknowledging the history and the seriousness of his family violence offending.
[27] Consequently, I do not find the Judge erred by not granting leave to apply for home detention under s 80I.
15 Oltaches v Police [2021] NZHC 908 at [17].
Result
[28]The appeal is dismissed.
Solicitors:
Public Defence Service, Christchurch Crown Solicitor, Christchurch
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