COREY NORMAN MILNE v R [2023] NZCA 491

COREY NORMAN MILNE v R [2023] NZCA 491 [9 October 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA642/2022[2023] NZCA 491BETWEEN COREY NORMAN MILNEAppellantAND THE KINGRespondentHearing: 31 August 2023Court: Miller, Ellis and van Bohemen JJCounsel: S G Vidal for AppellantR W Donnelly for RespondentJudgment: 9 October 2023 at 10.30 amJUDGMENT OF THE COURTA The application to adduce further evidence is granted in part.B The appeal against sentence is allowed.C The sentence of four years and one month's imprisonment is quashed.D In substitution, a sentence of three years and nine months' imprisonment isimposed.____________________________________________________________________REASONS OF THE COURT(Given by van Bohemen J)[1] Mr Corey Milne appeals the sentence of four years and one month'simprisonment imposed by Judge Harvey in the District Court at Invercargill afterMr Milne had been found guilty of wounding with intent to cause grievous bodilyharm.1[2] Mr Milne's notice of appeal challenged his conviction and asserted generallythat the sentence was excessive. At the hearing, however, Mr Milne's counsel,Ms Vidal, advised that Mr Milne was not pursuing his appeal against conviction.Accordingly, the hearing proceeded on the basis that the appeal against conviction hadbeen withdrawn.[3] In addition, Ms Vidal did not challenge the starting point of five and a halfyears' imprisonment adopted by the Judge or the discount of over 25 per cent givenfor Mr Milne's personal circumstances. She submitted, however, that Mr Milne wasentitled to a further discount of 15 per cent for cultural and social factors which werecausatively related to his offending but were not before the Court when he wassentenced.[4] Mr Milne filed his appeal within time. However, he requires leave to adducefurther evidence, including a report under s 27 of the Sentencing Act 2002.Appeal against sentence[5] Under s 250(2) of the Criminal Procedure Act, this Court must allow an appealagainst sentence if satisfied that, for any reason, there was an error in the sentenceimposed on conviction or that a different sentence should be imposed. Otherwise, itmust dismiss the appeal.2The offending[6] We adopt the Judge's account of the offending when sentencing Mr Milne:[3] The facts that I sentence you on are that on 4 September, you hosteda group of people at your home address. Your wife, who was at that stagepregnant, stayed in the house and she went to bed quite early. You and yourfriends were in the garage. At the party were a number of people, including Mr Soper .1 R v Milne [2022] NZDC 20149 [Sentencing notes].2 Criminal Procedure Act 2011, s 250(2) and (3).[4] From the evidence, I am satisfied that Mr Soper was not makingfriends at this party. He became very intoxicated and seemingly quiteaggressive.[5] In the early hours of the morning, his partner decided that she wantedto go home but he told her in fairly graphic terms that he was not goinganywhere. She then left and her evidence was that she walked down to theshops and then she was picked up by her partner's mother.[6] Mr Soper, for one reason or another, had not realised that she hadgone. He went searching. He went to your house and he banged on the door.[Mr Milne's flatmate], who had gone to bed some two hours earlier, woke upwhen he heard the banging and he went to the toilet, where he was ill. He thenwent to the front door. Mr Soper told him that he was looking for his partner.He was told to wait and [his flatmate] went to have a look.[7] [Mr Milne's flatmate's] evidence was that he went down to the sparebedroom. He looked there but then discovered that Mr Soper had not done ashe was told and he had followed him. He was taken back to the front door andagain told to stand there. He then went to your bedroom. He opened the doorbut unfortunately Mr Soper had followed yet again and perhaps out ofirritation, he kicked the open door, which slammed open and woke your wife.[8] He left the house and went back to the garage but it seems that youwere also becoming concerned about where this lady had gone and you wentfor a walk to see if you could find her. You walked down the road towards theshops and as you were returning, you were met by [your flatmate].[9] At about that time, you received a call from your wife. She told youthat she had been woken up by Mr Soper, who had barged into the bedroomand slammed open her door. You were very angry. You were already tired ofthis man and it would seem that this was probably the last straw. You stormedinto the garage, you swore at him and whether or not he hit you first isuncertain but what is very clear is that you then hit him very hard on at leasttwo occasions and you knocked him out. By this stage, you had lost allcontrol. Although he was lying on the floor, you then rained a number ofpunches on him and I am satisfied that you stomped him at least twice in thehead or possibly the body area.[10] As a result, he was in a very bad way. During the course of theevidence it transpired that when the ambulance first arrived, he was assessed[as] being at Status 1. Status 0 is the equivalent of being dead. He was veryvery badly hurt.[11] I have no doubt that as this assault continued, you were so angry youdid intend to hurt him.Sentencing notes[7] After describing the offending, the Judge observed:[12] In preparing for this sentencing, I have had the advantage of readinga considerable amount of material. I have read the submissions filed by theCrown and your counsel. I have read the pre-sentence report. I have seen thevictim impact statements. I have received, and I have read, all of thereferences that have been filed by your counsel and obviously I have listenedto what they have had to say to me this morning.[8] The Judge acknowledged that he found the sentencing particularly difficult.On the one hand, it was a very violent attack on a drunk person who was quicklyrendered unconscious, and the attack continued after the victim was defenceless.3But, as the Judge then noted:[26] I am also aware that under normal circumstances you do not behavein this way. The references that I have seen indicate that you are very wellregarded by a very large number of people. Despite personal tragediesyourself, it seems you are always ready to help others. You engender hugeloyalty from those people you come into contact with, and it sounds as if youmaintain essentially an open home to anybody who wants to come and talk toyou. The reference from your former wife indicates that you behaved in thisway for many years. In fact, she makes the comment that she has had to shareyou with an awful lot of people.[27] Given that background, it is difficult to understand why you suddenlyerupted on this night. I accept that this man had become irritating during theevening. It would seem that his behaviour got worse as he became more andmore intoxicated. I suspect that what finally made you snap was when youheard he had gone into your home and barged into the bedroom occupied byyour pregnant partner. Clearly you overreacted. From the evidence, it wouldseem unlikely that it was he who attacked you first, and I say that simplybecause nobody, apart from you, saw that occur.[30] I am very conscious of the fact that you yourself have had tragedyand upset in your life and that there are a very large number of people whosupport you. Over the years, as I have said, you have done a great deal ofgood. I also accept that you do not usually behave in this way and this nightcan truly be described as an aberration.[9] The Judge was satisfied that the offending fell within band two in R v Taueki4because there were three aggravating features: the attack to the victim's head, extremeviolence, and the victim's vulnerability.5 The Judge said the appropriate starting pointwas five-and-a-half years' imprisonment. The Judge accepted that Mr Milne wasremorseful, despite denying some aspects of the offending.63 Sentencing notes, above n 1, at [25].4 R v Taueki [2005] 3 NZLR 372 (CA) at [34].5 Sentencing notes, above n 1, at [16] and [29].6 At [30].[10] The Judge said that, despite the fact Mr Milne had two previous convictionsfor violence,7 he considered he was entitled to take into account "what can only bedescribed as an impressive background".8 The Judge said he was prepared to giveMr Milne "a very substantial discount" to recognise all of the good that Mr Milne haddone. He also noted that Mr Milne had been on electronically monitored bail for along time and there had been no breaches.9[11] The Judge sentenced Mr Milne to four years and one month's imprisonment.10The appealAppellant submissions[12] Mr Milne's notice of appeal asserted that the sentence was manifestlyexcessive. However, Ms Vidal, did not base her submissions on these grounds.Instead, Ms Vidal submitted that at the time of trial and sentence Mr Milne had beencompletely disconnected from Māoritanga and he and his then counsel did notappreciate the value of a cultural report. Since his imprisonment, Mr Milne hasidentified his heritage and engaged actively with Māoritanga.[13] Ms Vidal sought leave to put in evidence certificates attesting to Mr Milne'sparticipation in rehabilitation programmes since he was sentenced and through whichhe had gained a better understanding of his heritage. Mr Milne also sought leave toproduce a report prepared in accordance with s 27 which, Ms Vidal submitted,establishes a causative connection between Mr Milne's background and his offending.Ms Vidal said the report helped to identify the triggers for Mr Milne's out of characterbehaviour and established a direct link between Mr Milne's background and his over-reaction to the threat he perceived to his vulnerable pregnant wife. She submitted thata further discount should be made to recognise these matters. Ms Vidal said the reportwas not available at sentence and that it was the interests of justice that it be received.7 Two convictions in 2008 for assault for which Mr Milne was required to pay sums in reparationand to undertake community work.8 Sentencing Notes, above n 1, at [32].9 At [34].10 At [36].Crown submissions[14] Mr Donnelly, counsel for the Crown, submitted that the appeal should bedismissed. He said the sentence imposed in the District Court was well within rangeand, indeed, could be said to be at the lower end of the range.[15] Mr Donnelly said that it was not in the interests of justice to grant leave toadmit the s 27 report or the other material. The report was not fresh; it could havebeen adduced when Mr Milne was sentenced. The other material related to eventspost-sentence and were not suggestive of error by the sentencing Judge.[16] Mr Donnelly accepted that the information in the report was more detailed thanthat before the Judge at sentence. However, he said it confirmed matters known to theJudge; namely that Mr Milne was well thought of by others and had suffereddifficulties, as the Judge set out at [26] and [30] of his Sentencing notes.[17] Mr Donnelly said the discount of over 25 per cent was substantial in the contextof a case where there could be no credit for a guilty plea or lack of prior convictions.The discount was significantly higher than the discounts of 15 per cent for personalmitigating factors given in Waikato-Tuhega v R and Kohu v R.11 Mr Donnelly pointedout that in Kohu, this Court observed that the 15 per cent discount given in that casefor cultural factors reflected an orthodox application of the relevant principles this andother courts have consistently applied.12Application to adduce further evidenceThe s 27 report[18] The s 27 report has been prepared by Ms Tara Oakley. Ms Oakley is aprofessional s 27 report writer and does not have personal knowledge of Mr Milne, hisfamily circumstances or his community. The report is based on a two-hour interviewwith Mr Milne while he was in Invercargill Prison, and telephone interviews withMr Milne's mother; his current partner; and his son.11 Waikato-Tuhega v R [2021] NZCA 503; and Kohu v R [2023] NZCA 343.12 Kohu v R, above n 11, at [36][19] According to the report, Mr Milne identifies as Māori through both his paternaland maternal lineages. However, he says he was deprived of his Māoritanga, hisancestry, and the richness and mana that could provide because of Western conceptsof blood quotients and the "relatively racially oppressive" society in which he and hisfamily lived. The report writer says that the family's mixed heritage made them "notMāori enough" to be comfortable in owning their rightful place as tangata whenua.[20] Mr Milne was the oldest of four children. Mr Milne's father was an alcoholicwho was emotionally absent at best, physically aggressive and, more typically,verbally abusive. Mr Milne's mother says Mr Milne took on the role of the protectorof the younger children in the home and felt huge pressure to keep everyone safe.[21] Mr Milne struggled at school with reading and writing and considered hesuffered from dyslexia. By age 14 he was hanging out with the wrong people,smoking, not going to school and was asked to leave school. As a result, he was"kicked out of home" and went to live with a paternal aunt in Invercargill.This coincided with his parents' separation. Mr Milne has had little contact with hisfather since.[22] By age 17, Mr Milne started getting into trouble and was sent back to live withhis mother. By that stage, substance abuse issues had emerged; he was smokingcannabis most mornings and drinking alcohol. The report says Mr Milne and hisbrother, who was next in age, both found solace in the escapism that substances suchas synthetic cannabis allowed them and that his brother's use of this led to his severemental health issues and decline.[23] Mr Milne formed a relationship with his first partner, who was five months'pregnant when she and Mr Milne met. Mr Milne was a father to her son and they laterhad a son together. He also has another son from a short-term relationship at a timewhen they were separated.[24] The report makes it clear that Mr Milne has been a devoted father to all hissons. For a period of about five years, when he was 26 to 31, Mr Milne stoppeddrinking alcohol. However, that was about the time that he and his brother were usingsynthetic cannabis, to which Mr Milne became addicted.[25] Mr Milne and his first partner resumed their relationship after a period ofseparation and later married. However, the relationship was fraught for variousreasons. They separated about four years ago, just before his brother passed away.After his brother's death, Mr Milne was unable to work due to depression and anxiety.He began drinking heavily again and using recreational drugs (MDMA/ecstasy) onweekends. He felt he had failed his brother. Both Mr Milne's mother and soncommented on his mental health and said he "never really came right" after his brotherdied. However, he also started to tinker with cars, an activity that gave him some joy,and was an expert at fitting exhausts. He became a mentor for young people who cameto his house for assistance with their cars and for advice.[26] At about this time, Mr Milne's current partner, came into his life. She laterbecame pregnant. They were very happy about the pregnancy, but this developmentcaused stress with his first partner. His current partner was also uncomfortable at thenumbers of people who assumed a right of entry into her home with Mr Milne.[27] The report writer asserts that the following factors were operative or proximatefactors that causatively contributed to Mr Milne's offending behaviours:(a) An exaggerated sense of responsibility for others:Mr Milne felt that his home, his partner and his unborn child were atrisk and that his violent and uncertain childhood may have invokedsuch a response.(b) Severe grief and stress and resultant compromised mental health:Based on studies that suggest that offenders often have a backgroundof grief trauma, Mr Milne's deep grief and compromised mental healthwere likely to be causal factors.(c) A vulnerability to maladaptive coping strategies including violentresponses:Through his life, Mr Milne has dealt with difficulties with maladaptivecoping strategies such as alcohol and drugs. While not intoxicated onsubstances at the time of offending, violence is also a maladaptivecoping strategy that links his background to his offending.(d) Cultural deprivation:Mr Milne has been deprived of culture and connection to te ao Māoriand disallowed access to wider whānau, hapū, iwi, marae and whenua.Had he been given access to this traditional support system, his lifewould likely have looked very different.(e) Unsuccessful education linked with criminal outcomes:There is evidence indicating that educational underachievement andfailure to attend school increase participation in criminal behaviour.Discussion[28] As Mr Donnelly says, the s 27 report is not fresh; it could have been providedat sentence. While Ms Vidal and the report writer place some emphasis on Mr Milne'sawakening to Māoritanga and his wider cultural background after he was imprisoned,the focus of the report is Mr Milne's personal background and experiences — muchof which was known at the time of sentence. However, consistently with the approachof the Supreme Court in Berkland v R, we have decided to admit the s 27 report.13As the Supreme Court said in Berkland, background information is important insentencing and s 27 is a key tool for eliciting it and it is important that courts haveaccess to in-depth background information in sentencing.14 Accordingly, we grantleave for the s 27 report to be admitted in evidence.13 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.14 At [174].Certificates concerning rehabilitative activities[29] We do not grant leave, however, to admit the other material attached toMs Vidal's submissions. The certificates are evidence that Mr Milne has, sincesentence, engaged productively with opportunities available to him in prison.They confirm that the sentencing Judge correctly recognised potential forrehabilitation, but they cannot be used to reduce the sentence from a position ofhindsight.Analysis[30] The essential question for determination is whether, having regard to the s 27report which was not available to the Judge, we are satisfied that a different sentenceshould be imposed. That in turn depends on whether we are satisfied that there isinformation in the s 27 report that was not available to the Judge and which wouldjustify a different sentence.The information available to the Judge[31] As noted at [6] above, the Judge recorded that he had read all of the referencesthat had been filed by Mr Milne's counsel. There were 37 references. They includedletters and emails from Mr Milne's mother; his former partner; his current partner; hisyounger sister; his stepson; his niece; and his nephew. The rest were from friends whohad known and, in some cases, had been supported by, Mr Milne over the years. Onewas from a man who was at primary school with him. Another was from a friend of25 years. One was from someone who had known Mr Milne and his former partnerfor 15 years. The rest were from people who had known Mr Milne for periods ofbetween one and eight years. There was also a reference from his former partner'sparents.[32] Common themes of the references were: Mr Milne's generosity; his openhouse/open door/open arms policy; his willingness to take people in; his readiness tosupport others in times of distress, including when they were suffering from mentalhealth issues; that he was a friend to the many young people who came around hishouse to talk and fix cars or for his company; and that he was known to many as "Pa"and was regarded by many as a father or father-figure. Many said his offending wascompletely out of character and that Mr Milne was a gentle man who had never beenviolent in their presence.[33] His current partner, her parents and others regretted that Mr Milne'simprisonment would separate him from his new-born son and other sons.[34] Unsurprisingly, most of the references from friends highlighted the positiveaspects of Mr Milne's character and what he had done for them. They did not try tooffer explanations for what had happened or comment on his background. However,the references from family members and some friends of longer standing did addressthose matters.[35] The reference from Mr Milne's mother stated that he had no communicationwith his father, that the last few years had been very hard for him because his brotherhad passed away, that the death of his brother had had a major effect on him and hadcaused him very bad anxiety, and that his siblings had always looked up to him as abrother and friend.[36] In her reference, Mr Milne's former partner said she had seen Mr Milne gothrough a lot of heartache after losing a cousin, his brother, to whom he was very closewhen growing up, and a close friend. She said she knew this had broken him in somany ways. She also said she knew for a fact that Mr Milne was a very understandingand patient man and that he would have had to have been provoked for hours on endfor him to lose his patience in the way he had.[37] Mr Milne's former partner also spoke of the close bond between Mr Milne andhis sons and her disappointment that their daughter, with whom she was pregnant whenshe and Mr Milne separated, does not have a bond with her father. She said herdaughter (who was nearly 14 months' old when she wrote the reference in October2022 and must now be just over two years' old) needs her father.[38] Mr Milne's current partner said that Mr Milne had helped her deal with herchildhood trauma, severe anxiety and depression by guiding her down the right pathand that she had never talked about her childhood trauma until she met Mr Milne. Shesaid he has helped others by not only lifting them up but also lifted himself by sharingand giving advice on things he had experienced.[39] She said her pregnancy had been very hard, that she had been in and out ofhospital and that she had a traumatic birth experience. Mr Milne had been with herevery step of the way and had always been there to support her. She said their son wasa bit of a handful and it made her upset to think Mr Milne would not see his son grow"for the most cherishable and important part" of their child's life.[40] Mr Milne's niece said that over the past few years, Mr Milne had had achallenging time dealing with the loss of several loved ones and that he hadexperienced a significant amount of guilt and blame. She thought a large contributionto those feelings was that he could not help those people during their distress as he haddone previously and that this had exacerbated his low self-esteem and mental health.She said it had been heart-breaking to see because he was so caring and empathetic.[41] A friend of Mr Milne's said she had reached out to Mr Milne when his marriageto his first partner broke down because, knowing them both and how it had happened,she knew how difficult the situation had been for him and how hurt he would havebeen.[42] She stated:Over the years, [Mr Milne] has worked so hard on keeping himself in checkto be a better person for himself and his boys and he even keeps his sons'friends in check too by providing his home as a safe place for anyone to goand talk with him about anything from being responsible for their own livesto talking about [their mental health] and helping to guide them out of hardsituations in their lives!I have seen and heard these interactions and even helped when I could myself.[Mr Milne] always said that there was a seat at his table with no judgementfor anyone whenever they needed one but his only rule was simple Respect!People had to have respect for his home, his family and anyone else thathappened to be at this place at the same time or they would be asked to leave.He tried to make his place a safe place and to always have a positive relaxedvibe.[43] It is apparent that the Judge had a wide pool of information about Mr Milnewhen he sentenced him. From this information, the Judge must have been aware thatMr Milne:(a) had been estranged from his father;(b) had lost his brother and others to untimely deaths, which had causedhim considerable distress, and that family members considered that ithad affected his self-esteem and mental health; and(c) was generous towards, accepted responsibility for, and was protectiveof others.[44] The Judge would also have been aware that his current partner's pregnancyhad been difficult and that at least one friend of long-standing had hinted at what mighthave provoked Mr Milne's violence that night — that Mr Soper had not shown respectfor Mr Milne's home and family.Comparison of the available information with the information in the s 27 report[45] Apart from the details concerning the alcoholism and violence of Mr Milne'sfather, we consider that the Judge had available to him, and from a wider range ofsources, most of the information relevant to the two primary causative factorspostulated in the s 27 report: the exaggerated sense of responsibility for others and thegrief, stress and resultant compromised mental health caused by the loss of his brotherand others close to him.[46] We accept that the synthesis and analysis provided by Ms Oakley presented theinformation in a more organised and directed fashion. However, we are not persuadedthat there was information in the s 27 report relating to these two factors that wassignificantly additive to the information before the Judge that would have warranted aseparate discount from the significant discount made by the Judge. Nor do weconsider that there was information that would have warranted a greater discount thanthat made by the Judge.Other factors not addressed in the information available to the Judge[47] The information available to the Judge did not address the three remainingfactors that Ms Oakley identified as causative of the offending: a vulnerability todevelop maladaptive coping strategies including violent responses; culturaldeprivation; and unsuccessful education. However, even on Ms Oakley's analysis, thesecond and third factors were not advanced on the basis of evidence of any directconnection to Mr Milne or his background.[48] The violence factor was extrapolated from the fact that Mr Milne previouslyengaged in substance abuse — of which there is no evidence or suggestion that thiswas an issue on the night of the offending. Apart from the two convictions for assaultsome 14 years prior to the offending, there is no evidence of Mr Milne resorting toviolence. The references from friends indicate that, in recent years at least, Mr Milnewas not a violent man. We see nothing causative in this factor that would havewarranted a discount.[49] While Mr Milne displayed poor coping skills on the early morning of hisoffending, we do not consider that this can be explained by his educationalunderachievement given Mr Milne's past, as indicated by his references.Those references portray Mr Milne as a calm and patient person. Those closest to himconsidered he made a momentary lapse in judgement on the morning of the offending.The references do not suggest that Mr Milne lacks the ability to cope with difficultsituations — as is sadly typical of those with educational underachievement.[50] As for cultural deprivation, as the Supreme Court said in Berkland, historicaldispossession and social disruption are relevant and can be taken into account atsentence where those narratives help explain, and causatively contribute to, theoffending.15 It may be that Mr Milne's life would have looked very different if he hadbeen given access to wider whānau, hapū, iwi, marae and whenua, but that is not initself a sufficient causal connection.15 Berkland v R, above n 13, at [110] and [124]–[125].[51] In this case, background circumstances undoubtedly contributed to Mr Milne'soverprotective behaviour. The Judge made a substantial allowance for that. We arenot persuaded that the cultural explanation for those circumstances warrants anadditional discount.[52] There is also nothing to suggest that Mr Milne' offending had any connectionwith educational underachievement.Conclusion regarding information in s 27 report[53] For these reasons, we are not satisfied that there is anything in the s 27 reportthat supports a separate discount in addition to the discount of over 25 per cent madeby the Judge or that supports a greater discount than that made by the Judge.Other sentencing principles warranting a discount[54] Mr Milne was sentenced on 13 October 2022, some two months before theSupreme Court's decision in Philip v R.16 In Philip, the Supreme Court upheld adiscount of about 10 per cent made by the High Court when sentencing Mr Philip forthe impact his sentence would have on his young child, who had developed a secureattachment with his father.17 That discount was in addition to a 30 per cent discountfor Mr Philip's difficult background, drug addiction, mental health issues, remorse andclear motivation for rehabilitation, a 20 per cent discount for Mr Philip's guilty pleaand a discount for time spent on electronically monitored bail.[55] The Supreme Court held that a discrete discount was available in that case,given that Mr Philip was an important presence in his young child's life.18 It notedthat the provision for discounts for the wellbeing of an offender's children reflectss 8(h) and (i) of the Sentencing Act and is supported by the United Nations Conventionon the Rights of the Child.19 The Supreme Court observed that it did not find it helpfulto characterise such discounts as "rare".2016 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571.17 R v Philip [2021] NZHC 2393.18 Philip v R, above n 16, at [53].19 At [52].20 At [56].[56] Unlike the situation in Philip, there is no prospect of Mr Milne being releasedfrom prison if an additional discount is made to take account of the impact of hisimprisonment on his two young children (his son with his current partner and hisdaughter with his former partner). While circumstances have prevented Mr Milnefrom developing an attachment with his young children, we consider the loss of theopportunity for them to form such attachments is itself a significant factor. This isparticularly so where there is ample evidence to establish not only that Mr Milne hasbeen a good father to his other sons but that he is a significant father figure to manyothers. There is also evidence from both mothers that they very much want Mr Milneto be involved in the early lives of their young children.[57] In these circumstances, we are satisfied that it would be strongly in the interestsof Mr Milne's young children that they should be able to have their father present intheir lives as soon as possible. For these reasons, we consider that a further discountof four months or approximately six per cent should be made to Mr Milne's sentence.Result[58] The application to adduce further evidence is granted in part.[59] The appeal against sentence is allowed.[60] We quash the sentence of four years and one month's imprisonment imposedby the District Court.[61] In substitution, we impose a sentence of three years and nine months'imprisonment.Solicitors:Southern Law, Invercargill for AppellantCrown Solicitor, Invercargill for Respondent