High Court Judgments of Public Interest

Sentencing on pleas to a representative charge of sexual violation by unlawful sexual connection, and a charge of sexual conduct by doing an indecent act on a child under 12 years of age for habitual offending against two distantly-related young girls at family gatherings. 

Aggravating factors of offending - serious long-term emotional and psychological harm resulting, comprehensive abuse of position of trust, repetitive nature of offending, degradation and cruelty in isolating the girl and directing her actions, victim vulnerability, premeditation, offending as a continuation of a propensity for such offending - means culpability solidly within band two or lower end of band three of R v AM (CA27 /2009) [2010] NZCA 114, [2010] 2 NZLR 750. Cusp of the two bands taken, a nine year starting point. One year uplift for prior offending of a similar nature. 10 percent discount for guilty plea. No discount for contended deprived background. End determinate sentence of nine years imprisonment (broken down, six for sexual violation by unlawful sexual connection, and three for sexual conduct with a child under 12 years of age). 

Minimum period of imprisonment of five years imposed because defendant's experience in custody alone seems unlikely to deter, the prospect of release into the community perhaps as soon as late next year insufficient to hold defendant accountable, or properly to denounce conduct, or to protect the community from the defendant. 

Satisfied the above determinate sentence otherwise to be imposed would not provide adequate protection for society from defendant as unreliable for post-release supervision. Determinate sentence therefore not preferable to a preventive detention sentence. Sentenced to preventive detention. 

Murder of 2 children. Jury rejected defence of insanity. Section 104 engaged starting point MPI of 22 years. Reduced to 17 years to take account of mental state at time. Sentence of life imprisonment with 17 years MPI. Neither life imprisonment nor MPI of 17 years manifestly unjust. Order under CPMIP Act to be detained as special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992.

Appeal against sentence for offending under the Insolvency Act 2006. Starting point of four years correct although, on appeal, the Court would have imposed a starting point of two years and six months on both concealing charges and applied a higher uplift for the managing a business charge. Uplifts applied for personal aggravating circumstances well principled and in range. No discount for psychological issues as the evidence is not fresh, it does not represent reduced moral culpability for the offending nor would his mental health issues require a reduced sentence as it may be unduly punitive. The Judge correctly imposed a cumulative sentence on an earlier set of offending as two distinct sets of offending that occurred at different times and inflicted loss on different groups of people, with the present offending occurring while subject to EM bail on the earlier offending. Further 18-month adjustment for totality as notional cumulative sentence disproportionate to the gravity of both sets of offending and beyond what is necessary to serve the purposes of sentencing in the circumstances. Cumulative sentence amended to six years and eight months. Appeal allowed in part. 

Sentencing - the offender had pleaded guilty to a charge of manslaughter - the charge was laid after the brakes on a truck the offender was driving failed and it ran downhill, killing a road construction worker who was working in its path - the offender should not have been driving the vehicle as it had been deemed not roadworthy six years earlier and should not have been on the road - HELD that the aggravating factors in the offending justified a starting point of four years imprisonment - discount of eight months (approximately 15 per cent) to reflect late guilty plea - further discount of seven months (or just over 15 per cent) to reflect remorse, rehabilitative measures the offender had undertaken and an emotional harm reparation payment in the sum of $20,000 the offender had agreed to pay to the victim's family - end sentence of three years imprisonment.

Defendant was charged with attempted murder after deliberately hitting a cyclist with his car.  He entered a plea of not guilty by virtue of insanity.  

Held: Defendant was labouring under a disease of the mind at the time of the attack, in terms of the definition of insanity under s 23 of the Crimes Act 1961. This resulted in a finding that the relevant acts were proven but that the defendant was not criminally responsible for those acts on account of insanity, under s 20(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CP(MIP) Act). 

Held: Disposition order made that the defendant be treated as a patient under s 25(1)(a) of the CP(MIP) Act and s 30 of the Mental Health (Compulsory Assessment and Treatment) Act 1992, and be detained as an inpatient for the purposes of treatment. 

Sentencing of Mark Jefferson for the manslaughter of his close friend and long-time mentor Stuart Stobie. Mr Jefferson had misidentified Mr Stobie as a deer through a thermal scope on a rifle while hunting in the Kaiangaroa Forest at 1 am and had shot and killed him. Mr Jefferson and Mr Stobie were hunting illegally in the forest at the time. Furthermore, Mr Jefferson did not have a firearms license and by venturing into the bush and firing the gun unsupervised he was unlawfully in possession of a firearm. The additional aggravating features were failure to identify his target or check the firing zone; use of cannabis beforehand; initially lying to the police that Mr Stobie had accidentally shot himself and the extensive wider victim impact. 

A starting point of five years' imprisonment was adopted. Three months was added on for Mr Jefferson's eight previous firearms licensing convictions. Reductions totally 27 months' for guilty plea (25%), clear and genuine remorse and participation in restorative justice (15%) and, to a very limited extent previous good character, as demonstrated in the small Minginui community, (3%) were allowed bringing the final sentence to three years' imprisonment. 

Without notice interlocutory application for interim orders to prevent US Laser Class Association acting on its purported termination of a sale and purchase agreement and to require reinstatement of Australian Performance Sailcraft as Approved Builder of Laser sail boats to a previous position and withdraw statements.  Issues of contract interpretation are not capable of present resolution and their lack of resolution offers the applicant a tenable basis upon which it might be able to succeed at trial. It accordingly has a serious case for trial. Balance of convenience also favours the applicant with a substantial part of its business to be significantly affected by cancellation. Least irremediable prejudice is to restore the status quo ante. Pending further order of the Court, orders not to take steps to implement purported termination of agreement and to reinstate applicant to its previous position. Direction for agreed neutral statement for publication in same media as previous communications. Costs reserved. 

Sentencing of Myles Bruce for 31 charges of sexual and violence related offending. Convictions entered following a Judge-alone trial earlier in the year. Offending occurred against five former partners, over a 15-year period. 

The offending involved multiple incidents of sexual violence including multiple rapes of four of the victims, multiple threats to kill, and physical violence. Mr Bruce would berate, verbally abuse, and pester the victims until they were left with no other choice but to submit to his demands. 

The Court imposed a sentence of 19 years' imprisonment for all the offending with a minimum period of imprisonment of 10 years. On the basis of psychologists reports before the Court, Mr Bruce's risk of further offending is assessed as high. This is exacerbated by his refusal to acknowledge any wrongdoing. By a fine margin, the Court declined a sentence of preventive detention on the basis that the lengthy finite sentence, with the possibility of an extended supervision order for a further I0 years, provided adequate protection for future intimate partners. 

The plaintiff has filed a claim against the defendants for trade mark infringement; breaching the Fair Trading Act 1986, and passing off. The claim concerns representations made in consequence of a promotional partnership between the defendants. The plaintiff sought an interim injunction (pending trial).

HELD: The application was declined. The Court accepted there is a serious issue to be tried but found the balance of convenience and overall justice of the case did not favour interim relief.

Sentence of four years' imprisonment imposed for one charge of manslaughter (Crimes Act 1961, ss 171 and 66(2)). 

Defendant, L, and co-defendant, TM, went into victim's sleep-out in Palmerston North to rob him of methamphetamine. When co-defendants dissatisfied with what they were given, TM presented firearm in sleep-out and threatened victim. L remained in sleepout and rifled through drawers. TM intentionally discharged firearm and murdered victim (s 168). Held, no evidence that L knew of firearm before entering sleep-out, but also that he did not leave sleep-out after firearm presented. Sentenced on basis that L only became aware of firearm when presented in sleep-out, but in that knowledge continued to participate in robbery, knowing it was a probable consequence that TM would cause serious injury to victim with firearm. L not merely a reluctant participant in robbery. 

Relevant circumstances: aggravated robbery context, unlawful entry of private dwelling, more than one offender, use of gang patches for intimidation, presence of firearm, death of victim. 

Held, L's culpability similar to R v Burke [2021] NZHC 136 (starting point of six years and six months) and R v Bush [2018] NZHC 1354 (starting point of seven years and six months). Starting point of seven years' imprisonment adopted. Ten per cent discount given for willingness to plead to manslaughter three weeks before trial, (offer was rejected by Crown). Discount of 15 per cent for youth applied. L aged 19 at time of offending which had hallmarks of youth offending. 

Five per cent discount for impact of incarceration on young children applied (Campbell v R [2020] NZCA 356; Philip v R [2022] NZSC 149). Credit of 10 months given for 16 months on electronically-monitored bail with 24/7 curfew aside from specific activities. End sentence of four years' imprisonment. No minimum period of imprisonment imposed, due to youth, lack of previous convictions, and low risk of reoffending 

5entencing of Kaytee Tahau for the murder of Saralee Moke and assaulting Renee Bevan with a weapon. At the time of the offending, Ms Tahau was living at a holiday park in Northland. Ms Tahau was being visited by her partner, Ms Bevan, from Australia; and her cousin, Ms Moke. Leading up to the night in question, there was some tension between the three and especially between Ms Tahau and Ms Bevan with Ms Tahau accusing Ms Bevan of having a thing for Ms Moke. On the night of the offending, all three had been drinking. Later that evening violence broke out during which Ms Tahau was violent towards both Ms Bevan and Ms Moke. This included hitting Ms Bevan over the head with a broken mirror from which the assault with a weapon charge arose. During the violence, there were brief periods of respite. However, during one such intermission, Ms Tahau retrieved a 30 cm knife and when another scuffle broke out between her and Ms Moke she stabbed Ms Moke twice (in the abdomen and arm through to her lung) causing her death. Ms Moke pleaded guilty to the charges on the first day of her scheduled trial on the basis of a reckless and not intentional murder. 

Here, there was no reason why a sentence of life imprisonment was inappropriate. On the basis of similar cases, a starting point of an 11-year minimum period of imprisonment was adopted. This was uplifted by one year for the assault with a weapon. It was then reduced by six months for Ms Tahau's guilty plea and a further six months for her personal circumstances. The end sentence was life imprisonment with an MPI of 11 years. 

Sentencing of Abel Wira for the manslaughter of his close friend Neville Thomson. Mr Wira lived on Mr Thomson's property and owned a pack of dangerous bullmastiff dogs. There were six adult dogs and 17 puppies. On 4 August 2022, Mr Wira left the property leaving Mr Thomson alone with the dogs. Mr Wira left some of the more dangerous dogs inside a rundown caravan on the property. The caravan did not have a handle or lock. Instead, Mr Wira attempted to secure the caravan by placing a wooden stump (a chopping block) outside the caravan door (and possibly loosely tying the door shut with some string). He said he had put the dogs in the caravan before without incident. This time, the dogs had not been fed for two days. Tragically, while Mr Wira was out, the dogs escaped and mauled Mr Thomson to death. Mr Wira's conviction at trial for manslaughter was on the basis that he failed to take reasonable care to ensure the dangerous dogs did not endanger human life; his failure was a gross one; and his failure was a cause of Mr Thomson's death.

This was the first sentencing for manslaughter involving a dangerous animal in New Zealand. Accordingly, case law was of limited assistance. But applying first principles a starting point of four years' imprisonment was adopted. A six-month reduction was appropriate for Mr Wira's remorse and assistance to the authorities. This brought the end sentence to three years' and six months' imprisonment. 

A jury found Mr Biddle and Mr Rapana guilty of murder and Mr Gage and Mr Tapara guilty of manslaughter. The defendants were members of Whakatane-based Aotearoa chapter of the Tribesman gang: Mr Rapana was the president, Mr Gage was the vice president, Mr Biddle was the sergeant at arms and Mr Tapara was a patched member. They learned that Mr Hohua had made unauthorised purchases using the chapter's bank account, and agreed to punish him. Mr Hohua was taken to the chapter's meeting place next to Mr Rapana's home. 

Mr Biddle and Mr Rapana were sentenced to life imprisonment. They were found equally culpable: with Mr Biddle taking part in the actual assault and Mr Rapana, despite possibly being surprised by the severity of the assault, arranging and authorising it. The starting minimum period of imprisonment for both defendants was set at 13 years' imprisonment. The aggravating features included premeditation, the number of offenders, victim vulnerability and the practice of disciplinary enforcement by violence. There were no mitigating features. Taking into account Mr Biddle's personal circumstances, which included a severely deprived childhood, the Court imposed a minimum period of imprisonment of 12 years. The minimum period of imprisonment of 13 years was maintained for Mr Rapana as his personal factors did not mitigate his culpability. Despite having an abusive childhood and previous substance abuse disorders, he been substance-free for nearly 20 years and held a leadership role in the gang.

Similar aggravating features were relevant in the case of Mr Gage and Mr Tapara. However, Mr Gage was sentenced on the basis that he did not physically assault the deceased. Mr Tapara was also unlikely to have caused the fatal injury. A starting point of six and half years was adopted for Mr Tapara, with Mr Gage receiving a starting point of five and a half years. Mr Gage had a difficult childhood, witnessing family and gang violence, and abusing alcohol and cannabis from the age of 10. He received a sentence of five years' imprisonment. Mr Tapara received a final sentence of four years and six months which included the following reductions: 10 per cent for his age of 20 at the time of the offending, 5 per cent for previous good character, 10 per cent for deprived background and six-months for the 30 months he had spent on EM bail. 

Penalty for breaches of obligations of $5,060,000 imposed on Christchurch Casinos Ltd.

Application for judicial review and declaratory judgment in respect of decisions made by Cabinet establishing a redress scheme for survivors of torture of the Child and Adolescent Unit of Lake Alice Psychiatric Hospital. The application is brought on the grounds that the redress scheme does not comply with s 9 of the New Zealand Bill of Rights Act 1990, nor New Zealand's obligations under international law. Applicant says the redress scheme should be set aside, and declarations made as to its non-compliance. The High Court found that the international instruments advanced by the applicant are not binding legal frameworks against which the Cabinet decisions can be measured. Application dismissed.

This case relates to the subdivision development of a 900-hectare block of coastal land at Weiti Bay just south of the Whangaparaoa Peninsula, north of Auckland. The initial landowner was Green & Mccahill Holdings Ltd. That company, along with its land, was purchased by a Taiwanese family company in 1991. One of the senior directors of that company was Mr Tong-Kuang Liu.

In 2005, Mr Evan Williams, a qualified lawyer and experienced property developer, showed interest in acquiring the land to develop it. Subsequently, Williams Land Ltd (one of Mr Williams' companies) entered into "Call" and "Put" option agreements with GMHL giving WLL the option to purchase the land for an agreed price under a formula (which depended on the number of consents obtained for development on the land). GMHL could also require the purchase of the land. Despite several extensions and a fresh option, the option agreements came to an end by mid-2010.

However, Mr Williams was still interested in some form of arrangement to develop the land. And Mr Liu, for the landowner, was still interested in selling. A series of agreements were executed allowing the development of the land and its purchase in stages upon the release of developed titles to purchasers. Mr Williams' companies were not to receive any return until agreed prices had been paid to GMHL.

In June 2012, a limited partnership (the Weiti Development Limited Partnership (WDLP)) was formed to be the development entity. The general partner was an entity controlled by Mr Williams. There were two limited partners. Mr Liu controlled the 60 per cent limited partner. Mr Williams controlled the 40 per cent limited partner. This entity became the development entity from that point onwards. An 18-year development period was envisaged. Under an amended development agreement WDLP took on the rights and obligations previously held by one of Mr Williams' companies in respect of the development including payments to GMHL for its land.

From December 2012, WDLP then entered into a series of loans to fund the development. The first loan was a small loan from GMHL itself. However, in August 2013 WDLP entered into its first commercial loan which was secured by a mortgage over part of GMHL's land. This loan was for predevelopment work and was replaced by another one in 2014.

Crucially, in August/September 2015, WDLP entered into a major loan to fund the construction of the first 150 lots within the development. This loan was provided by two separate lenders, and GMHL again agreed to mortgage part of its land to secure the loans. The arrangements between the parties were documented as a quadripartite deed. There were a total of three, successive quadripartite deeds, each swapping out the junior lender. Under the second quadripartite deed, GMHL agreed to mortgage a further part of its land. Under the third quadripartite deed, the senior lender remained the BNZ and the junior lender was Lambton Quay.

By early 2019, most of the initial, first stage, 150-lot subdivision development was complete and many of the lots had been sold. However, insufficient revenue had been generated to pay off the loans and it had become clear that GMHL would not be able to be paid the agreed payment for the first section of its land. At this stage, the relationship between Mr Williams and Mr Liu irretrievably broke down.

GMHL refused to co-operate and effectively "tanked" the development.

In June 2019, Lambton Quay bought out the BNZ's debt to strengthen its own position. It then undertook mortgagee sale action. GMHL confidently expected there would be no interest in that part of its land which was mortgaged. Its strategy was to buy back the land from the mortgagee at a much-reduced price.

The mortgaged land was advertised for mortgagee sale but (as expected by GMHL) no satisfactory offers were received from the wider public.

Ultimately, Lambton Quay accepted an offer from Mr Williams funded by an overseas financier, Clearwater. The proposal involved Mr Williams incorporating three new companies (the second through fourth defendants) which respectively purchased the mortgaged land. It also purchased the residual debt left owing by GMHL after the purchase price of the land was deducted from the debt.

GMHL smelt a rat and suspected shady dealings by the mortgagee.

GMHL brought four causes of action. The first and second alleged negligent misstatement and misleading conduct under the Fair Trading Act 1986 respectively against Mr Williams personally. The third alleged that Lambton Quay had breached its mortgagee sale duties when selling the mortgaged properties. Consequential relief was sought against Mr Williams' new companies and Clearwater.

Finally, the fourth cause of action sought an equitable contribution by Mr Williams to GMHL under a personal guarantee Mr Williams had provided for $1.5 million under the BNZ loan.

The fourth defendant, Ara Weiti Investments Ltd also brought a counterclaim for a judgment sum in respect of the residual debt.

HELD: All four of GMHL's causes of action were unsuccessful.

Under the negligent misstatement cause of action, all of the alleged misstatements were properly characterised as opinions/predictions or forecasts as to future events. For GMHL to establish they were misstatements it had to be shown that they were not reasonably based at the time. However, all of the financial forecasts (as to the development's success) were reasonably based (and honestly held) and and could not be shown to be misrepresentations. In any case, Mr Williams did not owe a personal duty of care to GMHL in the circumstances of the complicated contractual arrangements between the parties. It was also unclear whether any misstatement was causative of loss. Finally, the proper measure of that loss was in dispute, given that GMHL had incorrectly claimed for contractual expectation loss rather than tort based reliance loss.

Under the Fair Trading Act misleading conduct cause of action, a similar conclusion was reached. None of Mr Williams' conduct, properly characterised, was misleading or deceptive; and if it had been it was not causative of loss.

Under the mortgagee sale cause of action, Lambton Quay had shown that it complied with its duty under s 176 of the Property Law Act to take reasonable care to obtain the best price reasonably attainable through the mortgagee sale. Lambton Quay had also complied with all of its equitable duties including the requirement to act for a proper purpose.

Under the guarantee cause of action, GMHL could not claim a contribution from Mr Williams' because its own dirty hands had triggered the mortgagee sale. The doctrine of contribution is equitable and equity will not assist one with dirty hands.

The counterclaim succeeded. The main issue under the counterclaim was the value of the residual debt. Specifically the question was whether Lambton Quay had been entitled to charge interest up and until a law change in January 2020, because it had for some time not been registered under the Financial Service Providers (Registration and Dispute Resolution) Act 2008. It was held that Lambton Quay was entitled to charge interest for this period. Judgment was given for the full amount of the residual debt plus interest. This was because the particular lending arrangement here meant the loan fell within a regulatory exemption to the section of the Credit Contracts and Consumer Finance Act 2003 that would otherwise have prevented interest being charged.

Unsuccessful application for interim relief pending substantive judicial review off decision to ban greyhound racing in New Zealand. Held, the relief sought would breach the principle of non interference; Cabinet's decision to ban greyhound racing is not subject to any legal yardsticks, and there is no statutory duty to consult the RIB; even if there was some duty to consult the RIB, there is not a strong case that it required the Minister to go beyond the RIB information he and his officials obtained and presented to Cabinet; the Executive is not unlawfully implementing the ban without legislative authority by requiring members of greyhound racing clubs to cease greyhound racing while it is still lawful; and the evidence linking the consequences to the aspects of the decision that are now pleaded to be reviewable is weak.

Application for judicial review of Minister of Justice’s decision to surrender Mr Dotcom to the United States to face charges associated with an alleged conspiracy in relation to Megaupload.  The decision was challenged on several grounds, including that the Minister erred in finding that no mandatory or discretionary restrictions under ss 7 and 8 of the Extradition Act 1999 prevented surrender in the circumstances, and that the Minister’s decision was unreasonable.  Mr Dotcom also challenged the decision of the Commissioner of Police not to lay charges against him in New Zealand, when his two alleged co-offenders had been charged and sentenced domestically.  The primary focus of Mr Dotcom’s submissions was that he would be subject to disproportionately severe treatment if surrendered to the United States, given the disparity between his likely sentence if convicted in the United States compared to New Zealand, and the disparity between the likely United States sentence and the sentences received by his co-offenders.  
Application for adjournment to enable further medical reports to be obtained and for Mr Dotcom to apply to the Minister for reconsideration of the Surrender Decision consequent on a medical event in November 2024, declined.  The application was sought on the same grounds as an earlier application and the interests of justice did not support an adjournment. 

Held: The Minister did not violate any mandatory restrictions under s 7 of the Extradition Act in reaching his surrender decision.  There was no evidence to support his allegations that the United States prosecution was politically motivated or carried out for an otherwise improper purpose, such as to appease copyright holders. Nor was there any evidence of bad faith or abuse of process on the part of New Zealand or United States officials.    Similarly, the Minister did not fail to take into account any discretionary restrictions on surrender under s 8.  Mr Dotcom’s claim that he would face disproportionately severe treatment if surrendered was not made out, as his likely sentence in the United States would not be so severe as to shock the conscience of properly informed New Zealanders, nor did it amount to an irreducible life sentence.  Nor was the Minister’s decision unreasonable on this basis.  
The Commissioner’s decision not to prosecute Mr Dotcom in New Zealand was a proper exercise of the Police’s discretion.  There were different circumstances that applied to Mr Dotcom compared to his alleged co-offenders, for instance that they had offered to plead guilty to the New Zealand charges in exchange for providing assistance in the United States’ prosecution of Mr Dotcom.  There was no suggestion the Commissioner was biased or unreasonable in reaching that decision.  Furthermore, the Minister was entitled to rely on the Police’s explanation for that decision in determining whether Mr Dotcom should be surrendered.   

Application for judicial review declined.