Banks v R [2024] NZCA 607 (20 November 2024)

Last Updated: 25 November 2024

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA595/2023 [2024] NZCA 607

	BETWEEN	CHRISTOPHER JAMES BANKS Appellant
	AND	THE KING Respondent

Hearing:	3 September 2024
Court:	Ellis, Peters and Downs JJ
Counsel:	M W Ryan and L J Jackson for Appellant B Hawes for Respondent
Judgment:	20 November 2024 at 1.00 pm

JUDGMENT OF THE COURT

1. The appeal against conviction is dismissed.
2. The appeal against sentence is allowed.

100. The sentence of two years and six months’ imprisonment imposed on the charge of kidnapping is set aside and a sentence of 10 months’ home detention substituted.

4. The concurrent sentence of one month’s imprisonment imposed on the charge of failing to carry out obligations in relation to a computer search is set aside and a sentence of one month’s home detention substituted.
5. These sentences of home detention are to be served at the appellant’s EM bail address and on existing conditions. The standard conditions of home detention are also to apply.

____________________________________________________________________

REASONS OF THE COURT

(Given by Peters J)

• [1] Following a jury trial in July 2023 before Judge M J Callaghan, Mr Banks was convicted of one charge of kidnapping and one of failing to carry out his obligations in relation to a computer search. The Judge sentenced Mr Banks to two years and six months’ imprisonment.^[1]
• [2] Mr Banks now appeals against conviction and sentence.

Background

• [3] We have taken the narrative that follows largely from the Judge’s sentencing notes.
• [4] At about 7pm on 25 March 2020, Mr Climo-Ryan, the complainant, was at a park in Christchurch meeting two associates.^[2] Mr Climo-Ryan had with him some items which had come into the possession of his cousin, Mr Kerris, but which had been stolen from Mr Banks.^[3]
• [5] Shortly after Mr Climo-Ryan’s arrival at the park, Mr Banks and Mr Toki arrived. The Judge was satisfied that the two associates had alerted Mr Banks and Mr Toki to Mr Climo-Ryan’s arrival.
• [6] Mr Banks and Mr Toki were wishing to talk to Mr Kerris regarding the stolen property.^[4] Believing Mr Climo-Ryan to be Mr Kerris, Mr Banks and Mr Toki bundled him into Mr Banks’ vehicle, locked the car doors, and then drove him around Christchurch for about 40 minutes. In the course of doing so, Mr Banks and Mr Toki discovered their mistake. They then drove Mr Climo-Ryan’s address, where Mr Kerris was staying, intending to locate Mr Kerris.^[5] Mr Kerris, anticipating trouble, declined to go outside to talk to Mr Banks and Mr Toki, and indeed made an escape.^[6]
• [7] Mr Banks and Mr Toki then took Mr Climo-Ryan away again in an endeavour, unsuccessful as it happened, to find Mr Kerris.^[7]
• [8] Whilst in the vehicle this second time, Mr Banks and Mr Toki insisted Mr Climo-Ryan telephone his partner as they believed there was CCTV footage recording what had occurred at the address and wished it to be deleted.^[8] Mr Climo‑Ryan’s partner said that the police were at the address.^[9] A bystander had seen Mr Climo-Ryan being bundled into Mr Banks’ vehicle and had called the police.
• [9] On learning that the police were at the address, Mr Banks and Mr Toki released Mr Climo-Ryan, and he made his way home.^[10]
• [10] The Judge was satisfied that, in the course of these events, Mr Banks and Mr Toki had each punched Mr Climo-Ryan in the face, and that Mr Toki had threatened him with a firearm.^[11]
• [11] Detective Fenton was present when Mr Climo-Ryan arrived home. He began taking a statement from Mr Climo-Ryan that evening and completed it the next day.^[12] Mr Climo-Ryan also identified Mr Banks and Mr Toki from photo montages.
• [12] The police arrested Mr Banks and Mr Toki shortly thereafter. The “failing to carry out” charge, referred to in [1] above, arose from Mr Banks’ refusal on arrest to supply the police with the passcode to his mobile phone.

Appeal against conviction

• [13] Mr Ryan, counsel for Mr Banks at trial and on appeal, submits that a miscarriage of justice has occurred as a result of the combined effect of three errors by the Judge. The first relates to the admissibility of statements from a witness and the second and third concern the Judge’s summing up.
• [14] The Court must allow an appeal against conviction if satisfied a miscarriage of justice has occurred, that is if any error, irregularity, or occurrence in or in relation to or affecting the trial has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial.^[13] A “real risk” arises if “there is a reasonable possibility another verdict would have been reached” if nothing had gone wrong.^[14]

First ground of appeal — admissibility of witness statement

• [15] This first ground of appeal arises from events which occurred several days after the trial had commenced. By this time, Mr Climo-Ryan had given evidence, and had sought to resile from his statement to Detective Fenton. The Crown case was largely based on that statement. We say more about Mr Climo-Ryan’s evidence under the second ground of appeal, but for present purposes it is enough to say that at trial Mr Climo-Ryan denied any wrongdoing by Mr Banks and Mr Toki.
• [16] Detective Lawrence, the officer in charge, gave evidence towards the end of the Crown case. Amongst other things, the detective said that she had spoken to Mr Kerris on 9 April 2020 and then again on 14 May 2020, and on both occasions he had declined to make a written statement.
• [17] It is important to note here that, at the time of the 14 May 2020 discussion, Mr Kerris was in custody on an unrelated matter. Detective Lawrence had gone to speak to Mr Kerris upon learning that he was at the police station. Although he declined to make a written statement, Mr Kerris then went on to give the detective an account of what had occurred, which she had recorded in her notebook. However, as matters stood at the time the detective was called, the Crown could not lead that evidence from her.
• [18] Mr Ryan called evidence from Mr Kerris as part of Mr Banks’ defence. The gist of Mr Kerris’s evidence-in-chief was that he had left Mr Climo-Ryan’s address when Mr Banks and Mr Toki arrived, and had stayed away for several hours.
• [19] In cross-examination, Crown counsel, Ms Mills, asked Mr Kerris about his discussions with Detective Lawrence on 14 May 2020. Mr Kerris denied that he had said anything to the detective other than that he did not wish to make a statement. Ms Mills then put to Mr Kerris the account Detective Lawrence had recorded: that he was at Mr Climo-Ryan’s address when Mr Banks and Mr Toki arrived; that Mr Toki had told Mr Kerris to come outside; that Mr Kerris had refused; that Mr Toki had something up his shirt, which Mr Kerris thought was a knife or a gun; and that Mr Kerris had made his escape over a fence. Mr Kerris again denied making any such statements to the detective.
• [20] Ms Mills then applied to recall Detective Lawrence to give evidence that Mr Kerris had indeed made those statements to her.
• [21] Mr Ryan, and Ms Kelland for Mr Toki, objected on the grounds the evidence, that is Mr Kerris’s statements, had been improperly obtained in the sense of s 30(5) of the Evidence Act 2006 (Act). The impropriety, which the Crown conceded, arose from Detective Lawrence’s failure to caution Mr Kerris before questioning him, given that he was in custody at the time. On its face, the Chief Justice’s Practice Note on Police Questioning (Practice Note) requires such a caution:
  2. Whenever a member of the police has sufficient evidence to charge a person with an offence or whenever a member of the police seeks to question a person in custody, the person must be cautioned before being invited to make a statement or answer questions. The caution to be given is:

  (a) that the person has the right to refrain from making any statement and to remain silent.

  (b) that the person has the right to consult and instruct a lawyer without delay and in private before deciding whether to answer questions and that such right may be exercised without charge under the Police Detention Legal Assistance Scheme.

  (c) that anything said by the person will be recorded and may be given in evidence.

• [22] Accepting the evidence had been obtained improperly, the Judge was required to conduct the balancing exercise provided for in s 30(2) of the Act and decide whether or not to exclude the evidence.
• [23] For present purposes, the relevant parts of s 30 of the Act are:

30 Improperly obtained evidence

(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if—

(a) the defendant ... against whom the evidence is offered raises ... the issue of whether the evidence was improperly obtained ...

...

(2) The Judge must—

(a) find, on the balance of probabilities, whether or not the evidence was improperly obtained; and

(b) if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety and takes proper account of the need for an effective and credible system of justice.

(3) For the purposes of subsection (2), the court may, among any other matters, have regard to the following:

(a) the importance of any right breached by the impropriety and the seriousness of the intrusion on it:

(b) the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:

(c) the nature and quality of the improperly obtained evidence:

(d) the seriousness of the offence with which the defendant is charged:

(e) whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:

(f) whether there are alternative remedies to exclusion of the evidence that can adequately provide redress to the defendant:

(g) whether the impropriety was necessary to avoid apprehended physical danger to the Police or others:

(h) whether there was any urgency in obtaining the improperly obtained evidence.

(4) The Judge must exclude any improperly obtained evidence if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety.

[24] The Judge declined to exclude the evidence.^[15] Although the detective ought to have known to caution Mr Kerris, her initial enquiry was whether he had changed his mind about making a statement. In response to that enquiry, Mr Kerris volunteered his account of events. Accordingly, the intrusion on Mr Kerris’s rights was at a “low level” and neither deliberate, reckless, nor in bad faith.^[16]

• [25] Other matters which the Judge took into account included that the alleged offending was serious; that no alternative remedy to exclusion could provide redress to Mr Banks and Mr Toki; the evidence was probative of an issue before the jury (namely whether Mr Climo-Ryan’s statement to Detective Fenton was accurate); and that the evidence was not unfairly prejudicial.^[17]

Submissions

• [26] Mr Ryan acknowledges the serious nature of the offending but submits the other s 30(3) criteria favoured exclusion of the evidence. Mr Ryan submits the Judge erred particularly in his assessment of the seriousness of the detective’s breach of the Practice Note and the intrusion on Mr Kerris’s rights. Mr Ryan submits that the detective was reckless, and that her breach might even be considered deliberate, if it is assumed that she would have been familiar with the requirements of the Practice Note. As the Judge recognised, no remedy beyond exclusion of the evidence could provide redress to Mr Banks, and there was also a significant issue as to whether the detective’s account of what Mr Kerris had said was reliable. Mr Kerris did not have an opportunity to read what the detective had recorded, nor did the detective read it back to him, and nor had Mr Kerris signed the detective’s notebook.
• [27] Mr Hawes, Crown counsel on appeal, submits the Judge’s decision was correct, essentially for the reasons the Judge gave. He also notes that the Crown did not seek to lead the evidence but rather to use it for rebuttal purposes. Mr Hawes also submits that the status of a person in custody is a relevant factor in assessing the seriousness of the breach. Mr Kerris was a witness and, in fact, aspects of Mr Climo‑Ryan’s statement of 25 March 2020 suggest that Mr Kerris himself may have been kidnapped.

Discussion

• [28] We do not have to decide whether the Practice Note required the detective to caution Mr Kerris before she spoke to him on 14 May 2020. Suffice to say that the Judge did not err in admitting the evidence.
• [29] We agree with the Judge that any breach there may have been was “low level”, given that, as the Crown says, the detective was talking to Mr Kerris in regard to a matter in which he was not a suspect but a witness, if not a potential complainant. Moreover, the impropriety was not against Mr Banks or Mr Toki but against a third party. As to the evidence itself, it was probative of an important part of the Crown case, as it supported the allegation of the presence of a weapon and, as Mr Hawes submits, it was led in rebuttal.
• [30] We accept that only exclusion was sufficient redress from Mr Banks and Mr Toki’s perspective. However, that consideration is outweighed by the others to which we have referred. The Judge’s decision to admit the evidence was correct.

Second ground of appeal — reliability direction

• [31] To put this second ground of appeal in context, it is necessary to say more about Mr Climo-Ryan’s evidence at trial.
• [32] Mr Climo-Ryan’s evidence-in-chief was wholly inconsistent with his statement to Detective Fenton. Mr Climo-Ryan not only sought to resile from that statement, but to give evidence consistent with subsequent statements he had made to two private investigators, one engaged by each defendant.
• [33] The gist of Mr Climo-Ryan’s evidence at trial and his later statements was that, at the time of the events in issue, he had been on a “drug-fuelled bender” (not accepted by the Crown) and indeed had been on that bender for several days prior. Mr Climo‑Ryan also said that much of his statement to Detective Fenton was invention; that he had not been kidnapped; that he had not been assaulted or threatened with a firearm; and that he had gone willingly with Mr Banks and Mr Toki.
• [34] Mr Climo-Ryan’s departures from his statement to Detective Fenton were such that the Judge declared him to be hostile and allowed Ms Mills to cross-examine him.^[18]
• [35] It was also clear that Mr Climo-Ryan was a reluctant witness. He gave evidence behind a screen, stated that he did not wish to give evidence, and Detective Lawrence gave evidence that Mr Climo-Ryan had told her “he was worried about his safety and the implications of giving evidence”.
• [36] Accordingly, Mr Climo-Ryan’s credibility and reliability were in issue and, as the Judge recognised, it was necessary to address those matters in some detail in the summing up and to warn the jury in accordance with s 122 of the Act.
• [37] The relevant parts of s 122 provide:
  122. Judicial directions about evidence which may be unreliable

(1) If, in a criminal proceeding tried with a jury, the Judge is of the opinion that any evidence given in that proceeding that is admissible may nevertheless be unreliable, the Judge may warn the jury of the need for caution in deciding—

(a) whether to accept the evidence:

(b) the weight to be given to the evidence.

...

(4) It is not necessary for a Judge to use a particular form of words in giving the warning.

Submissions

• [38] In his submissions to us, Mr Ryan is critical of the manner in which the Judge summed up in respect of Mr Climo-Ryan’s evidence. Mr Ryan submits that the Judge did not give the s 122 warning in a neutral manner, and that in effect the Judge told the jury not to accept what Mr Climo-Ryan had said at trial because he feared retaliation.
• [39] Mr Ryan also submitted the Judge’s warning under s 122 fell short of what the provision requires. Although the Judge warned the jury of the need for caution in deciding whether or not to accept Mr Climo-Ryan’s evidence, he did not warn the jury to be cautious in deciding the weight to be given to the evidence, as provided for in s 122(1)(b).
• [40] Mr Ryan said the Judge’s warning went little further than an encouragement to the jury to be careful; that the direction needed to be more fulsome and refer to matters such as Mr Climo-Ryan’s evidence of drug taking; and that the Judge’s warning was on a par with that which the Supreme Court found wanting in CT v R.^[19]
• [41] Mr Hawes rejects these criticisms. He contends the Judge’s treatment of the issue was more than sufficient to meet the circumstances of the case.

Discussion

• [42] The Judge began the relevant section of his summing up with a lengthy recital of Mr Climo-Ryan’s evidence and the contents of his three statements, all of which the jury had been given. The Judge then set out the parties’ positions on which should be preferred:

[19] In his evidence before you in the witness box Mr Climo-Ryan said that the statement on the 25^th of March 2020 [to Detective Fenton] was not correct and that the evidence contained in the two statements is what he confirmed in court. The Crown says that you can rely on the statement that was given on the 25^th of March 2020 because that was taken very close in time to the incident itself. The defence say, no, you must rely on what he said in court where he’s adopted the other two statements.

• [43] The Judge then said:

[20] Now I want to talk to you about a witness having perhaps a motive to give some false evidence because of various reasons, in this case perhaps fear of retribution. Evidence such as that may be unreliable and you have to be cautious in deciding whether you accept it and what weight you give it. Because of the divergence in the statements the issue of the truthfulness of Mr Climo-Ryan becomes a central issue as does the reliability of his evidence. You need to take particular care in weighing up the evidence because of the fact that the statements made to the investigators and the one to the police were not on [oath] but the evidence he has given has been in court where he has affirmed the evidence of the ones he made to the investigators. You will also bear in mind that he was taken through his police statement by the Crown when he was being in effect cross-examined by them and he acknowledged that the contents of the statement were at least what was recorded. You will also have to bear in mind the fact that the effect that drugs might have on the recollection of a person. While we’ve had no expert evidence as to the effect of drugs you can use your collective common sense in assessing whether or not what Mr Climo-Ryan now says was his state at the time of the incident on the 25^th of March 2020 as was portrayed in the statements he later gave, or what was his state when it was made based on the observations of the other people involved, given in evidence by those who observed him on the night of the 25^th of March.

[21] So you have to weigh up whether or not what he says in those statements made later, that he was in a drug-induced state, as to whether or not the observations given by the people who saw him on the night of the 25th of March actually was a drug-induced state.

...

[25] Now this is not a direction to reject the evidence of Mr Climo-Ryan or to give it little weight. It is a direction that you need to be cautious about the possible unreliability of the evidence when you consider it. Remember there have been three written statements as well as the oral evidence in court before you.

• [44] Mr Ryan’s “lack of neutrality” submission is based on the first sentence in [20], but that is no more than a statement of what was obvious and of what had been expressed, namely that Mr Climo-Ryan might be lying because he was scared. A motive to lie is one reason to give a warning under s 122.
• [45] The Judge then went on to refer expressly to the need for caution in deciding whether to accept Mr Climo-Ryan’s evidence and the “weight you give it”. The reasons for caution the Judge gave included the possibility that Mr Climo-Ryan was fearful of retribution; the differences between his accounts; that the written statements were not made on oath; and the possible effect of drugs on memory. Mr Ryan was also critical of the Judge’s suggestion that the jury use their common sense in assessing the effect of the drugs Mr Climo-Ryan said he had taken, given there had been no expert evidence on that matter. Again, we do not consider there is anything in this criticism on the facts. The jury’s verdict indicates they did not believe Mr Climo-Ryan had been under the influence of drugs on 25 March 2020.
• [46] In [21], the Judge again referred to the need to “weigh up” whether Mr Climo‑Ryan had indeed been in a drug-induced state on the evening in question, and in [22] the Judge gave the (standard) direction as to memory referred to below.
• [47] In [23], the Judge referred to the need to assess the veracity and reliability of Mr Climo-Ryan’s evidence, and identified matters the jury might take into account in doing so including, again, Mr Climo-Ryan’s evidence of drug taking. Paragraph [25], which Mr Ryan focuses on, is simply the Judge’s conclusion.
• [48] Accordingly, taking into account everything the jury had observed over several days, and everything the Judge had said to them, the jury could not have been in any doubt that they needed to be careful in deciding what, if anything, of Mr Climo-Ryan’s evidence they accepted and what weight, if any, to place on that evidence.
• [49] Lastly, we do not accept Mr Ryan’s submission the Judge’s direction was on a par with that in issue in CT v R. In CT v R, the Supreme Court said that what was lacking in that case, and what is required, is a warning of the need for caution, and an explanation as to why such caution is required, with that explanation to identify the relevant risks arising in the circumstances of the case.^[20] The Judge’s directions regarding Mr Climo-Ryan’s evidence satisfied these criteria, and by some margin.
• [50] It follows that we do not consider there is any merit in this ground of appeal.

Third ground of appeal — memory direction

• [51] The direction the Judge gave as to memory was as follows:

[22] You will also be aware that memory gets worse over time. Our recollection of events close to the time is usually better than the recollection of events at a later date. Use your common sense when you are assessing that and in particular you are assessing the memory of a witness.

• [52] Mr Ryan submits that the Judge did not inform counsel that he proposed to give this direction. He may not have, but nor was he required to. Mr Ryan also submits that what the Judge said was insufficient, again because he made no reference to the possible effect of drugs on Mr Climo-Ryan at the time of the events. Given the discussion above as to the s 122 direction, nothing more needs to be said on this point.
• [53] It follows from the above discussion of the three grounds of appeal that there was no miscarriage of justice and we dismiss Mr Banks’ conviction appeal accordingly.

Appeal against sentence

• [54] The appeal against sentence is brought on the basis the Judge’s end sentence of two years and six months’ imprisonment is manifestly excessive. In particular, Mr Ryan submits that the Judge ought to have held a disputed facts hearing pursuant to s 24 of the Sentencing Act 2002; the Judge’s starting point of four years and six months’ imprisonment was too high; and the discounts given for mitigating factors were insufficient.
• [55] Mr Hawes does not accept any of these submissions and submits the end sentence was within the available range.
• [56] We must allow Mr Banks’ appeal if his sentence was imposed in error such that a different sentence should be imposed.^[21] A manifestly excessive sentence is one premised on an error that the appellate court should correct. In the vast majority of cases, the court will not intervene where the sentence is within the range that can be properly justified by accepted sentencing principles.^[22]

Disputed facts hearing

• [57] The sentencing Judge identified the following aggravating features of the offending: planning and premeditation; the presence of a firearm, and its use to threaten Mr Climo-Ryan; a detention for up to one hour; the use of violence; and that there were two offenders.^[23]
• [58] On appeal, Mr Ryan submits there was insufficient evidence of the presence/use of a firearm and the use of violence and that, if the Judge was going to sentence on this basis, he ought to have held a disputed facts hearing pursuant to s 24 of the Sentencing Act.^[24]
• [59] We do not accept this submission. As Mr Hawes submits, a judge may sentence on their own assessment of the facts, provided that such assessment is not inconsistent with the jury’s verdict.^[25]
• [60] The Judge’s view as to the presence of the firearm and the use of violence was not inconsistent with the jury’s verdict. As we have said, in finding the defendants guilty, the jury must have proceeded on the basis that Mr Climo-Ryan’s account to Detective Fenton was correct. That account included statements by Mr Climo-Ryan that a gun had been held to his head; that he had been told he was “dead”; that both offenders punched him in the face; and that he was threatened with the gun on other occasions. Mr Kerris’s statement to Detective Lawrence on 14 May 2020 further supported the presence of a firearm.
• [61] Accordingly, it was open to the Judge to sentence on the basis he did, and there was no need for a disputed facts hearing.

Starting point

• [62] There is no guideline case for kidnapping. Given that, the best assistance is to be found in comparable cases.
• [63] Several of the authorities to which counsel referred the Judge, and to which they referred us, are not particularly relevant. Some were less serious, in which for instance the offender had detained a former domestic partner and/or their new partner for a short period, with minimal, if any, violence and the absence of a firearm. In several others, the offender(s) had inflicted serious injury, in some instances over a lengthy period.
• [64] Of those cases to which we were referred, R v Tie and R v Salt are the most relevant.^[26] In both there were two or more offenders, violence, and an attempt to recover a debt or extort money.
• [65] In Tie, Courtney J sentenced four offenders on kidnapping, blackmail and wounding charges, adopting starting points of up to five years and six months’ imprisonment. For Mr Tie, whose offending we consider the closest to Mr Banks’, the Judge adopted a starting point of three years and six months’ imprisonment.^[27] Mr Tie had been involved in planning what became a terrifying ordeal for the victim lasting many hours and had lent support and encouragement to his co-offenders. That said, Mr Tie was not directly involved in inflicting the serious violence suffered by the victim.
• [66] In Salt, Wylie J adopted a starting point of four years and six months’ imprisonment.^[28] The offending in Salt was more serious than Mr Banks and Mr Toki’s. The offenders kidnapped the son of a debtor, detained him at length, punched him, presented a pistol, told him on several occasions he was going to be shot, and ultimately they did shoot him in the hand.
• [67] In the present case, the detention was relatively short and the violence towards the lower end of the scale. The offending is aggravated by the presentation of a firearm and its use to threaten Mr Climo-Ryan.
• [68] Taking all these matters into account, we consider that the offending warranted a starting point in the region of three years and nine months’ imprisonment. It follows that we accept the Judge’s starting point of four years and six months’ imprisonment was too high.

Discount for mitigating factors

• [69] The Judge gave reductions of 15 per cent for rehabilitative efforts and five per cent for personal circumstances. He gave a further reduction of 13.5 months for the 39 months spent on electronically monitored (EM) bail.^[29] Not satisfied that Mr Banks was remorseful, the Judge declined any reduction on that score.^[30]
• [70] Mr Ryan submits that the Judge’s discount for personal circumstances was insufficient and that a modest discount for remorse should be allowed. He does not take any issue with the Judge’s reduction for time spent on EM bail but seeks a further reduction for time spent post-sentencing on EM bail pending appeal. Mr Ryan seeks the substitution of a sentence of home detention if we arrive at a short sentence of imprisonment.
• [71] We agree with Mr Hawes that no further discount is required for personal circumstances. Mr Banks had a good upbringing and excelled at school. He became involved in drugs of his own volition, through connections formed at a gym. Nothing in Mr Banks’ background could be said to have contributed to his offending. There is no basis to increase the Judge’s five per cent.
• [72] Nor are we persuaded to allow a discount for remorse. The Judge was best placed to assess whether or not Mr Banks was remorseful for his offending, and concluded that he was not. We do not propose to depart from the Judge’s informed assessment.
• [73] As we have reduced the starting point, and leaving aside any further reduction for matters post-sentencing, we calculate that Mr Banks’ end sentence becomes just less than two years’ imprisonment. A starting point of three years and nine months is 45 months’ imprisonment. Retaining the Judge’s 13.5 months for the time spent on EM bail and his other discounts totalling 20 per cent brings the end sentence to 22.5 months’ imprisonment.
• [74] There are compelling reasons to impose a sentence of home detention in this case. First, home detention is capable of meeting all relevant purposes and principles of sentencing for this type of offending.^[31] Secondly, Mr Banks, who is still relatively young (25 at the time of the offending), has proved himself compliant on EM bail over the best part of four years. In that time, he has established a business and has been studying for a degree. He also has the support of his family, and of his partner and her family. A sentence of home detention allows this state of affairs to continue.
• [75] The issue then becomes what term of home detention to impose. But for what follows, we would have imposed a sentence of 12 months’ home detention, given the serious nature of the offending. However, although Mr Ryan advised that we need not take account of the time Mr Banks has spent in custody, he did seek an additional reduction for Mr Banks’ approximately eight months on EM bail post-sentencing.
• [76] We shall make a two-month reduction on this ground. Mr Banks’ conditions of EM bail have not been at the most restrictive end of the scale, in that he has only been subject to an overnight curfew. Also, the Judge’s allowance for the time Mr Banks spent on EM bail prior to trial was generous. In those circumstances, two months is sufficient.
• [77] This brings us to an end sentence of 10 months’ home detention.

Result

• [78] The appeal against conviction is dismissed.
• [79] The appeal against sentence is allowed.
• [80] The sentence of two years and six months’ imprisonment imposed on the charge of kidnapping is set aside and a sentence of 10 months’ home detention substituted.
• [81] The concurrent sentence of one month’s imprisonment imposed on the charge of failing to carry out obligations in relation to a computer search is set aside and a sentence of one month’s home detention substituted.
• [82] These sentences of home detention are to be served at the appellant’s EM bail address and on existing conditions. The standard conditions of home detention are also to apply.^[32]

Solicitors:
Crown Solicitor, Christchurch for Respondent

---

^[1] R v Toki [2023] NZDC 22097 [sentencing notes].

^[2] At [32].

^[3] At [31].

^[4] At [33].

^[5] At [35].

^[6] At [36].

^[7] At [39].

^[8] At [40].

^[9] At [41].

^[10] At [41].

^[11] At [34].

^[12] At [42].

^[13] Criminal Procedure Act 2011, s 232(2)(c) and (4).

^[14] Misa v R [2019] NZSC 134, [2020] 1 NZLR 85 at [48].

^[15] R v Toki [2023] NZDC 15809.

^[16] At [14(a)].

^[17] At [14(b)–(e)].

^[18] R v Toki [2023] NZDC 14702.

^[19] Referring to CT v R [2014] NZSC 155, [2015] 1 NZLR 465.

^[20] At [54].

^[21] Criminal Procedure Act, s 250(2).

^[22] Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[36].

^[23] Sentencing notes, above n 1, at [56].

^[24] Mr Ryan also takes issue with the Judge’s view that the offending was premeditated. Nothing turns on this particularly. However, we would not accept such a submission in any event. It cannot have been a coincidence that Mr Banks and Mr Toki arrived at the park when they did.

^[25] R v Aram [2007] NZCA 328 at [71].

^[26] R v Tie [2012] NZHC 2517; and R v Salt [2017] NZHC 1979.

^[27] R v Tie, above n 26, at [28].

^[28] R v Salt, above n 26, at [37].

^[29] Sentencing notes, above n 1, at [84]. The Judge mistakenly expressed the 13.5 month reduction in percentage terms.

^[30] At [83], [87] and [90].

^[31] Sentencing Act 2002, ss 7 and 8.

^[32] Sentencing Act, s 80C(2).