IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE	
CRI-2024-483-11
[2024] NZHC 3490	

BETWEEN	SOLICITOR-GENERAL
Appellant	
AND	KEVIN JOHN CROSS
Respondent	

Hearing:	19 November 2024	
Counsel:	S C Baker and T Zhang for Appellant D M Goodlet for Respondent	
Judgment:	21 November 2024	

JUDGMENT OF RADICH J

[1]	Kevin Cross pleaded guilty to a charge of causing grievous bodily harm with intent to do so,1 and a charge of reckless driving causing injury.2 He was sentenced in the District Court at Taihape to 12 months’ home detention on 26 August 2024.3

[2]	The Crown brings an appeal from the sentencing decision on the grounds that a full custodial term was the least restrictive outcome available given the nature and circumstances of the offending. It says that the starting point was inadequate, the discounts applied were excessive, and the end sentence of home detention is manifestly inadequate.

1	Crimes Act 1961, s 188(1) — maximum penalty 14 years’ imprisonment.
2	Land Transport Act 1998, s 36(1)(a) — maximum penalty five years’ imprisonment, or $20,000 fine; and mandatory disqualification from holding or obtaining a driver licence for 1 year or more.
3	R v Cross [2024] NZDC 20911 [sentencing notes].

SOLICITOR-GENERAL v CROSS [2024] NZHC 3490 [21 November 2024]

Background

Summary of the offending

[3]	Mr Cross and the victim both lived and worked on farms in Rangiwahia. They were known to each other within that community.

[4]	On 1 May 2024, Mr Cross was driving his vehicle on the same road as the victim. They passed each other, travelling in opposite directions. Mr Cross slowed his vehicle and performed a U-turn, so that he was travelling in the same direction as the victim.

[5]	Concerned about Mr Cross’s possible actions, the victim pulled into a driveway of one of his paddocks. He got out of his vehicle and opened the gate so that he could drive into the paddock. As the victim was getting back into his vehicle, Mr Cross drove into the back of the victim’s vehicle at speed. The collision caused the victim’s head to hit the windscreen. And it caused substantial damage to the front of Mr Cross’s own vehicle, including to the bull bar. This conduct gave rise to the charge of reckless driving causing injury.

[6]	While the victim was lying on the ground, after having been struck by the vehicle, Mr Cross approached him carrying an object believed to be a wooden post or pipe. Mr Cross struck the victim a number of times to his face and head using the object, and left him lying face down in a stream. Mr Cross then drove back to his farm and parked his vehicle in a shed that was not visible from the road. This conduct gave rise to the charge of causing grievous bodily harm with intent.

[7]	The victim sustained fractures to his left femur, right forearm, and left eye socket, and he sustained three deep lacerations to his head which required multiple staples. He required surgery to repair the fractures to his eye socket and femur, and had a full rod inserted into his leg which will remain in place for life. He was in hospital for seven days and wheelchair-bound for six weeks. At the time of sentencing,

the victim was still having constant trouble with his knee and was unable to walk unaided.4

Background circumstances

[8]	Context for the offending is provided through an understanding of an incident that took place nine months earlier. On 12 August 2023, two of Mr Cross’s sons, along with some other teenagers, were out spotlighting on his farm. While they were out, a firearm was discharged in their direction. It came from the victim’s neighbouring property. The teenagers were concerned that someone could have been hurt, and three of them went over to the property, where the victim and a number of other male adults were drinking, to ask about it.

[9]	The victim then directed a string of verbal abuse towards Mr Cross’s son, invoking racial slurs and name calling. Mr Cross’s son became angry and punched the victim. According to Mr Cross’s son and the other witnesses, the victim then punched Mr Cross’s son, knocking him to the ground, and then continued to hit him a number of times while he was on the ground. Mr Cross’s son suffered a split lip, chips to his teeth, and multiple bruises to his face.5

[10]	The events were reported to the police for investigation. They resulted in the victim receiving a warning for discharging the firearm near a dwelling, and Mr Cross’s son receiving a warning for his initial assault on the victim.

Decision on appeal

[11]	The Judge summarised the purposes and principles of sentencing which, here, centred upon the need for accountability, promoting a sense of responsibility, and deterrence. She added that the least restrictive appropriate outcome needed to be imposed.6

4	Sentencing notes, above n 3, at [8].
5	These events were not proven nor the subject of any official charges, however they are outlined in the Judge’s sentencing notes at [38]–[41], and in the submissions of both parties.
6	Sentencing notes, above n 3, at [17].

[12]	The Judge referred to the bands in the guideline judgment of the Court of Appeal in R v Taueki for serious violent offending.7 She noted that both parties agreed that attacks to the head, the use of a weapon, and serious injury were relevant aggravating factors — observing overlap between them.8 Furthermore, while the victim’s injuries had not been life-threatening, they had “permanently changed his life”.9 An aggravating factor, the Judge found, was the fact that there were two separate acts of violence; the first attack made the victim vulnerable to the second.10 She did not accept that premeditation was a relevant factor, but, rather, saw Mr Cross as having “reached breaking point” that day.11

[13]	The Judge saw the most relevant cases as being Hape v R,12 where a starting point of five and a half years’ imprisonment was taken, and Clover v R.13 The additional factor here — use of a weapon — required, the Judge thought, that a starting point of six years’ imprisonment be taken.14

[14]	The Judge saw a full credit of 25 per cent as being warranted for Mr Cross’s early guilty pleas (which was not in dispute).15 She then applied a further reduction of 10 per cent for Mr Cross’s remorse, willingness to attend restorative justice, and for his offer to pay reparation to the victim.16

[15]	The Judge went on then to apply a further discount of 11 months (approximately 15 per cent) for Mr Cross’s many years of previous good character,17 noting that he had no previous convictions whatsoever.18 She had received 26 written references in support of Mr Cross, which described him as an honest, hardworking man; someone who was a good father, and a kind and respectful neighbour.19 He was

7	At [18], citing R v Taueki [2005] 3 NZLR 372 (CA).
8	Sentencing notes, above n 3, at [22].
9	At [24].
10	At [25].
11	At [26].
12	Hape v R [2015] NZCA 187.
13	Clover v R [2024] NZHC 919, where a six-year starting point was taken.
14	Sentencing notes, above n 3, at [28].
15	At [29].
16	At [30].
17	At [36].
18	At [31].
19	At [32].

described also as being an “incredibly good stockman”,20 and a number of referees described the offending as being “completely out of character”.21

[16]	The Judge applied a further discount of 12 months, being slightly over 15 per cent, for Mr Cross’s personal background factors. In doing so, she described the background circumstances that I have summarised in [8]–[10] above. While the Judge did not consider that these earlier events amounted to provocation in terms of Taueki, she treated the circumstances as a mitigating factor, and saw it as “valid context” because of the “distress and frustration” the events had caused Mr Cross in the lead up to his offending.22 The Judge took into account also the significant impact that a sentence of imprisonment would have in terms of Mr Cross’s employment and on his dependent children.23

[17]	That brought the end sentence to two years’ imprisonment.24 The Judge decided to commute the sentence to one of home detention, at an address in Tokomaru Bay, where Mr Cross would have the support of his whānau.25 In doing so, the Judge noted that, in her view, the circumstances of the offending were such that Mr Cross had behaved in a way that he was “never likely to do again”.26 A sentence of 12 months’ home detention was imposed.27

[18]	The Judge ordered Mr Cross to pay reparation of $4,417 for the victim’s lost wages and physiotherapy appointments, as well as $2,500 for emotional harm.28 She declined to make a firearms prohibition order, noting that the offending, although involving serious violence, had not involved firearms, and was “a one-off incident in an otherwise blameless life”.29

20	At [33].
21	At [34].
22	At [44].
23	At [45] and [46].
24	At [48].
25	At [50].
26	At [49].
27	At [54].
28	At [56].
29	At [58].

Approach on appeal

[19]	The appeal is brought under s 246 of the Criminal Procedure Act 2011. The Court must allow the appeal only if it is satisfied that there was an error in the sentence and that a different sentence should be imposed.30 Generally, an appellate court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.31 The focus is on whether the sentence imposed is within the available range, rather than the process by which the outcome was reached.32

[20]	As this is a Crown appeal, the sentence will only be increased if it is manifestly inadequate or based upon a wrong principle.33 The purpose of a Crown appeal is “to maintain consistency in the application of sentencing principles in those cases that fall clearly below established sentencing levels”.34 Crown appeals are not for borderline cases.

[21]	The concept of “manifestly inadequate” has been described in the following way:35

Whether a sentence can be said to be manifestly inadequate turns firstly on the maximum sentence for the particular offence; then on a consideration of comparable sentences, to the extent that those are considered to be appropriate; and above all, the focus is required to be on the totality of the offending and the culpability of the offender in the particular case.

[22]	The court will be more reluctant to increase than to reduce a sentence, and it will require more compelling justification in order to do so.36 Furthermore, if the appeal seeks to substitute a term of imprisonment for a non-custodial sentence, the court will be “reluctant to interfere if this would cause injustice to the offender”,

30	Criminal Procedure Act 2011, s 250(2).
31	Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
32	Tutakangahau v R, above n 31, at [36].
33	R v Ormsby-Turner [2023] NZCA 601 at [5].
34	Simon France (ed) Adams on Criminal Law — Sentencing (online ed, Thomson Reuters) at [SAB5.09]; and McCaslin-Whitehead v R [2023] NZCA 259 at [29].
35	R v Wilson [2004] 3 NZLR 606 (CA) at [41], cited with approval in McCaslin-Whitehead v R, above n 34, at [30].
36	McCaslin-Whitehead v R, above n 34, at [31].

especially where the offender has been complying with the non-custodial conditions set.37

Starting point

[23]	In R v Taueki, the guideline judgment for serious violent offending, the Court of Appeal described a number of aggravating and mitigating factors, which can be drawn upon in order to determine the appropriate starting point in a given case.38 The Court emphasised that it is necessary, not only to identify the presence of the factors, but to evaluate the seriousness of the particular factors in the circumstances.39

[24]	The Taueki sentencing bands are as follows:

(a)	Band one (3–6 years’ imprisonment):40 offending involving violence at the lower end of the spectrum of grievous bodily harm offences. Where none of the aggravating factors are present, a starting point at the bottom end of this band would normally be called for. Where one or more of those factors is present, a higher starting point is required.

(b)	Band two (5–10 years’ imprisonment):41 grievous bodily harm offending which features two or three of the aggravating factors.

(c)	Band three (9–14 years’ imprisonment):42 serious offending which has three or more aggravating factors, where the combination of aggravating features is particularly grave.

[25]	In adopting a starting point  of six  years’ imprisonment,  the Judge placed  Mr Cross’s offending at a crossover point between Taueki bands one and two. The Crown submits that the offending is properly characterised as falling within the middle of band two. Both parties agree that the aggravating factors present in the case include

37	R v Ormsby-Turner, above n 33, at [89], citing R v Donaldson (1997) 14 CRNZ 537 (CA) at 550.
38	R v Taueki, above n 7, at [31].
39	At [30].
40	At [36]–[37].
41	At [38]–[39].
42	At [40]–[41].

extreme violence, serious injury, use of a weapon, and attacks to the head. On that basis, I see the Judge’s starting point as being in range. However, the Crown says that additional factors involving the vulnerability of the victim, and vigilantism are relevant also.

Vulnerability of the victim

[26]	In Taueki, the Court of Appeal indicated that, where a victim is particularly vulnerable, this will be an aggravating feature of the offending. It gave examples of where the victim is a child, disabled in some way, or otherwise defenceless, or where there is a disparity in size or strength between the attacker and the victim.43

[27]	The Crown submits that, at the time the offence of causing grievous bodily harm occurred, the victim was vulnerable as a result of having been hit by Mr Cross’s vehicle which, in turn, caused him to hit his head and fall to the ground. It is possible that the victim’s leg was broken at that stage. As noted by the Judge, this made the victim “vulnerable to [Mr Cross’s] further attack and unable to defend himself”.44

[28]	Ms Goodlet, for Mr Cross, submits that care must be taken when vulnerability is advanced based on factors that arise during an assault, rather than those that exist before it. She notes that the Crown did not advance this ground at sentencing and, in fact, the Crown submissions distinguished this case from Setu v R, on the basis that the offending there had involved a vulnerable victim who was asleep with her children beside her.45 Ms Goodlet says that that it is supposition to suggest that the victim’s leg was broken initially, and that there was no evidence about that other than a comment made by the victim’s parents.

[29]	The Judge did take into account the fact that there were two instances of serious violence involved in the offending; the first of which left the victim vulnerable to the second. This was a factor in Hape v R too, where the offender punched the victim in the face, causing him to fall to the ground and become unconscious, and then kicked

43	At [31(i)].
44	Sentencing notes, above n 3, at [25].
45	Setu v R [2017] NZHC 1839.

him with full force in the face.46 However, I do not consider that this factor adds considerably to the other aggravating factors. I see the vulnerability of the victim as being linked closely with the extreme violence and serious injury inflicted, rather than being a pre-existing factor.

Vigilante action

[30]	Vigilante action is identified as an aggravating feature in Taeuki, and is described as follows:47

… Where the serious violence results from the actions of one or more persons taking the law into their own hands, acting out of revenge or using stand-over tactics for the enforcement of other obligations, that will also be an aggravating feature.

[31]	The Crown submits that Mr Cross’s targeting of the victim was a form of vigilantism, stemming from the fact that the victim had caused harm to his child and may have shot in the direction of his son’s group. It says that Mr Cross was acting out of revenge, citing passages from the s 27 report:

I had not seen him since he beat up my son. I lost it and saw red. … The moment I attacked [the victim] I felt a huge release. Before that I could just feel mounting frustration and disbelief about how everything was not being handled. My body was blowing up.

…

I would like some justice done. I accept what I did was wrong, but why was [the victim] allowed to use a high-powered rifle to shoot at 7 children of which 2 were mine?

…

For many months Mr Cross said he had waited for the police to act on the shooting of the children and when he was told that they were going to do nothing he said he felt even more hopeless and frustrated. Then when [the victim] had driven past him waving and pulling faces, he could no longer see reason, and had turned his vehicle and given chase.

[32]	The Crown submits that the Judge erred in taking this background into account as a mitigating factor, despite finding that provocation was not made out, and says that it is properly characterised as an aggravating feature.

46	Hape v R, above n 12, at [5].
47	R v Taueki, above n 7, at [31(m)].

[33]	Ms Goodlet submits that, often, vigilante action and premeditation may be considered together, and that the Court was correct in its assessment of the evidence on the issue. She says that this was not a case of Mr Cross taking the law into his own hands but, rather, of him having lost his temper when he saw the victim for the first time since the incident with his sons. She submits that it is common for there to be a pre-existing bad relationship or grievance between an attacker and a victim, and that this does not necessarily amount to vigilante action.

[34]	Ms Goodlet refers to Heke v R, which was relied on by the Crown at sentencing.48 The context of the violent offending in that case was ongoing discord between siblings. However, vigilante action was not raised as an aggravating feature.

[35]	In my view, the offending does not constitute vigilante action as described in Taeuki. Rather, as described by the Judge, I see the earlier events as having caused Mr Cross to reach a “breaking point” at which his anger overcame him. While it has been suggested that Mr Cross’s frustration arose out of a feeling that police had not properly brought the victim to justice for his earlier actions, as I see it, that is only part of the picture and was not a primary motivator for Mr Cross’s actions.

Other aggravating features

[36]	The Crown accepts that extreme violence, serious injury, use of a weapon, and attacks to the head are factors that overlap to some extent. However, it notes that, as the Judge observed, the offending was “extremely violent”, involving not only the use of a vehicle to inflict injury, but Mr Cross striking the victim’s face and head with a weapon several times, in circumstances in which the victim was unable to properly defend himself. The injuries sustained by the victim have “permanently changed his life, particularly the impact of the broken femur, not just on his mobility and his ability to work but on his quality of life”.49

48	Heke v R [2019] NZCA 256.
49	Sentencing notes, above n 3, at [24].

Was the starting point within range?

[37]	The Crown submits that, without taking an unduly mathematical approach, the offending must fall at least within the middle of band two, if not towards the top end of that band. It contends that a starting point of at least seven years was required for the grievous bodily harm offending alone.

[38]	Ms Goodlet submits that the starting point of six years’ imprisonment was within range, and consistent in particular with Hape v R, which involved similar aggravating features of serious violence: an attack to the head while the victim was defenceless on the ground, with significant harm being caused.

[39]	The Crown notes that the reckless driving causing injury charge was not incorporated into the sentence in any operative way. It says that, taking totality into account, a minimum three-month uplift to the starting point for the reckless driving charge was required. That would see an overall starting point of seven years and three months’ imprisonment.50

[40]	However, the Judge did take into account the fact that there were two separate instances of violence in reaching the starting point. She assessed the sequence of events as a whole. Overall, I consider the starting point of six years’ imprisonment for both sets of offending, while generous towards Mr Cross, was within the range available to the Judge.

Personal mitigating factors

[41]	The Crown does not dispute the full credit given for Mr Cross’s guilty plea.

Good character and remorse

[42]	The Court of Appeal has noted that credit awarded for an offender’s previous good character is “very much a matter of impression”.51 The following considerations have been identified as being relevant to the assessment:52

50	The Crown cites the case of Cottle v Police [2018] NZHC 1928 in support of this proposition.
51	R v Hockley [2009] NZCA 74 at [32].
52	Manawaiti v R [2013] NZCA 88 at [19]; and Parkin v R [2018] NZCA 404 at [16].

(a)	the length of period for which the person had good character;

(b)	the extent to which good character is based only on the absence of convictions and includes positive contributions to society; and

(c)	the need for any discount to be proportionate to the overall sentence.

[43]	In Poi v R, the Court of Appeal observed that a discount of 15 per cent for good character is “well beyond the norm”.53

[44]	The Crown submits that Mr Cross’s previous good character does not warrant a credit at the upper end of the available range. It says that his 17-year successful career in farming and being described as a kind and considerate neighbour do not amount to the sort of “positive contributions to society” that justify a reduction of   15 per cent.

[45]	While the Crown accepts that Mr Cross’s offers to engage in restorative justice and to pay reparation demonstrate genuine remorse, it notes that the PAC report observed that “Mr Cross appeared more remorseful for the current circumstances he finds himself in rather than expressing remorse for his actions and the severe harm he inflicted on the victim”. It submits that the Judge erred in giving a discount of 10 per cent for remorse, restorative justice, and reparation offers in addition to the 15 per cent reduction for good character, noting that both discounts are underpinned by similar rationales.54 It says that this was a case where “closely related or interrelated mitigating features are artificially disaggregated, then each awarded full and discrete discounts to achieve a desired result”,55 and that a combined discount of no more than 20 per cent was warranted.

[46]	Ms Goodlet submits that the Judge had sound experience working in the Taihape community and had the benefit of seeing Mr Cross and his supporters, as well as the victim’s family, in court. She says that, in a small rural community, information

53	Poi v R [2015] NZCA 300 at [8].
54	See R v Cook [2021] NZHC 1609 at [38]; and R v Jordan [2024] NZHC 1810 at [33], where the two discounts were combined.
55	R v LB [2020] NZHC 94 at [53].

relating, for example, to the way in which Mr Cross would check on and assist his elderly neighbours, is sufficient to show a positive contribution to that community.

[47]	It is apparent to me, from the testimonials provided, that Mr Cross is genuinely kind and compassionate. They show that he has a strong and loving bond with his children. He is described as being honest and humble.

[48]	I agree with Ms Goodlet’s submissions, and with the view of the Judge, that Mr Cross’s previous good character included making positive contributions to his community. Therefore, while the discount of 15 per cent was certainly at the upper end, the Judge did not err in making the reduction. Furthermore, I do not see those contributions as overlapping with Mr Cross’s remorse or with the fact that he was willing to attend restorative justice and to make reparation, as is suggested by the Crown. The factors are different and I do not see the Judge as having erred in applying a separate reduction of 10 per cent in recognition of that. I observe also that Mr Cross has made payments required of him in accordance with the Judge’s reparation orders.

Personal mitigating circumstances

[49]	The Judge applied a discount of 12 months, being “slightly over 15 per cent”, for personal factors. The discount was applied having regard to the victim’s attack on Mr Cross’s son, and to the adverse impact of imprisonment on Mr Cross’s employment and on his children.

[50]	Mr Cross shares custody with his ex-partner of their four children, who at the time of sentencing were aged nine, 12, 16 and 19.

[51]	The Crown submits, as mentioned, that no reduction was warranted for the impact of imprisonment on Mr Cross’s employment, as this is not a relevant consideration in sentencing. Furthermore, it submits that only a modest reduction of five per cent was available for the impact on his children. The Crown accepts that a custodial sentence may have a disproportionately adverse impact on his two youngest children, given that they are in their most formative years. However, it suggests that an assessment would require a further evidential foundation rather than being able to be based upon self-reporting. It refers to R v Griffiths, where a reduction of five per

cent was applied where there was no independent evidence of the impact of imprisonment on the offender’s daughter.56

[52]	I accept what Ms Goodlet says about Mr Cross being a good father to his children and providing significant support for them. The Supreme Court has held in Phillip v R that a discount of 10 per cent for the effect of sentencing on the offender’s young child was appropriate57 and, when combined with Mr Cross’s circumstances as a whole, there is as I see it a sufficient basis for the approach the Judge has taken.

[53]	Equally, I see it as having been in order for the Judge to have taken the incident between the victim and Mr Cross’s children into account. It might better have been considered as a mitigating factor relating to the offending, rather than a personal mitigating factor. However, as mentioned, the principal issue on appeal is whether the overall sentence was manifestly inadequate, rather than the particular route by which the Judge reached the sentence.

[54]	While, again, these discounts were at the upper end, I do not consider they resulted in a sentence that failed to account for the gravity of the offending.

Overall adequacy of sentence

[55]	The Court may impose a sentence of home detention where the offender would otherwise receive a short-term sentence of imprisonment,58 only if it is satisfied that the purpose or purposes for which the sentence is imposed cannot be achieved by any less restrictive sentence or combination or sentences.59

[56]	Under s 16 of the Sentencing Act 2002, when considering the imposition of a sentence of imprisonment, the Court must have regard to the desirability of keeping offenders in the community as far as is practicable and consonant with the safety of the community. In particular, a Court must not impose a sentence of imprisonment unless it is satisfied that:60

56	R v Griffiths [2023] NZHC 357 at [45] and [48].
57	Phillip v R [2022] NZSC 149, [2022] 1 NZLR 571.
58	Sentencing Act 2002, ss 4 and 15A(1)(b).
59	Section 15A(1)(a).
60	Section 16(2).

(a)	a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and

(b)	those purposes cannot be achieved by a sentence other than imprisonment; and

(c)	no other sentence would be consistent with the application of the principles in section 8 to the particular case.

[57]	However, s 17 provides that nothing in pt 1 of the Act limits the discretion of a court to impose a sentence of imprisonment on an offender if the court is satisfied on reasonable grounds that the offender is unlikely to comply with any other available sentence.

[58]	The Court of Appeal in Doolan v R made the following observations:61

[38]	… In our view the critical point is that the sentencing decision as between imprisonment or home detention involves a discretionary exercise that necessarily engages all of the principles and purposes in ss 7 and 8 in the Sentencing Act. Those provisions of the Sentencing Act do not accord greater weight to factors such as denunciation or deterrence than the personal circumstances of the offender. The relative weight to be given to the principles and purposes of the Act is left to be determined by the sentencing judge in all the circumstances of the case.

[39]	In terms of appellate review of such sentencing decisions, the court on appeal must focus, as with other appeals against sentence, on the identification of error, having regard to the discretionary nature of the decision.

[59]	The Crown submits that the end sentence of 12 months’ home detention is not proportionate with Mr Cross’s culpability and the seriousness of his offending. It says that the Court must stand back and consider whether the discounts have resulted in a sentence that is not in proportion with that gravity.62 It says that the serious nature of the offending here, involving two separate acts of violence, meant that a custodial sentence was the least restrictive outcome that was appropriate in the circumstances.

[60]	The Crown says that an appropriate sentence is well above the two-year threshold where home detention can be considered. The appropriate approach, it says, is to take a starting point of seven years and three months’ imprisonment, and to apply

61	Doolan v R [2011] NZCA 542 (footnotes omitted).
62	McCaslin-Whitehead v R, above n 34, at [61]–[65].

reductions of 25 per cent for the guilty plea, 20 per cent for good character and remorse, and five per cent for the adverse impact of imprisonment on Mr Cross’s two dependent children, so as to come to an end sentence of no less than three years and seven months’ imprisonment. The Judge’s approach, it is said, was in error in principle and departed from accepted sentencing principles. It says that substituting a sentence of imprisonment would not result in an injustice. Even if an end sentence of two years’ imprisonment was available, the Crown submits that it should not have been commuted to home detention.

[61]	Mr Cross’s actions were particularly violent and he must be held accountable for them. But this is not a case in which Mr Cross is likely to reoffend; just as he had not offended previously. While not for a moment minimising the significance of the offending, it was a one-off incident, due to events past, on the part of a person who is of particularly good character, who is a valuable member of the community, who is truly remorseful and who has dependent children.

[62]	Mr Cross’s behaviour is denounced appropriately through the term of home detention imposed by the Judge. It is a significant restriction of liberty in its own right. Rehabilitation can be achieved through the sentence imposed. It would in my view be impeded in prison. Standing back and looking at all relevant matters as a whole, this is not a case which in my view would warrant a term of imprisonment.

[63]	The conclusion I have reached is that, while the starting point and discounts applied by the Judge were generous, they did not result in a sentence that was manifestly inadequate. An end point sentence of 12 months’ home detention with six months’ post detention standard and special conditions and just under $7,000 in reparation is in my view within an appropriate range.

[64]	The Crown says disqualification from driving (discussed below) should not be taken into account in considering the overall nature and extent of the sentence imposed. As the Crown says, it is a mandatory requirement under s 36(2)(b) of the Land Transport Act 1988 in the circumstances here. I do not take that into account directly but I do acknowledge the detrimental impact that it will have on Mr Cross given his home detention in Tokomaru Bay.

Disqualification

[65]	Under s 36(2)(b) of the Land Transport Act, the Judge was required to disqualify Mr Cross from holding or obtaining a driver’s licence for one year or more.

[66]	Under s 81 of the Land Transport Act, the Court does have a discretion not to make a disqualification order, for special reasons.

[67]	However, in this case, the question of disqualification was not addressed at the District Court, either in submissions,63 or by the Court. That was an error. An order does need to be made under s 36(2)(b) and this appeal will be allowed to that extent.

Conclusion

[68]	It might be said that the sentence I will uphold is at the outer perimeter of the available range but, in my view, it does remain within it. It was not manifestly inadequate or based upon a wrong principle.

[69]	The appeal is allowed to the extent discussed in [65] above. Accordingly, I make an order of the Land Transport Act 1998 disqualifying Mr Cross from holding or obtaining a driver’s licence for a period of one year from the date of this decision.

[70]	Otherwise, the appeal is dismissed.

Radich J

Solicitors:
Crown Law, Wellington for Appellant
Debbie Goodlet, Whanganui for Respondent

63	Although it is understood that mention was made of it in a footnote in the Crown’s submissions in the District Court.