WILLIAMS v COMMISSIONER OF INLAND REVENUE [2017] NZHC 655

WILLIAMS v COMMISSIONER OF INLAND REVENUE [2017] NZHC 655 [10 April 2017]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYCRI-2017-463-000011[2017] NZHC 655BETWEEN JOHN NEVILLE WILLIAMSAppellantAND COMMISSIONER OF INLANDREVENUERespondentHearing: 21 March 2017 (Heard in Hamilton)Appearances: Sandy Baigent for the AppellantJessica Tarrant for the RespondentJudgment: 10 April 2017JUDGMENT OF MOORE JThis judgment was delivered by me on 10 April 2017 at 2:00 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:Introduction[1] On 18 March 2016 the appellant, John Neville Williams, was sentenced in the District Court at Taupo to a term of imprisonment of three years and 10 months.[2] The sentence was imposed after Mr Williams pleaded guilty to seven charges of evading tax by either failing to file returns of income or by filing false information within tax returns.[3] Ten months after Mr Williams was sentenced his counsel obtained a comprehensive report from a neuro-psychologist. This indicated that at the time of the offending he was suffering from a significant cognitive impairment to such an extent it contributed to his offending. It is submitted that had this information been before the sentencing Judge, a significantly lower sentence would have been imposed.[4] Mr Williams asks that this new material be admitted and that the appeal be allowed with the consequence this Court either substitutes a new sentence or remits the matter back to the District Court for the purposes of a disputed facts hearing and possible re-sentencing.1The facts[5] The agreed summary of facts reveals that Mr Williams and his partner of 20 years, Ms Stewart, were jointly charged with offences including representative charges2 relating to the evasion of the assessment and/or payment of income tax, GST and PAYE both by them personally or on behalf of a company known asStewart Drake International Limited ("the Company")3.[6] The Company operated a restaurant and bar in Taupo between 2000 and 2015.1 Sentencing Act 2002, s 24.2 Tax Administration Act 1994, s 143B(2).3 Mr Williams faced seven charges and Ms Stewart six charges. It appears they were also chargedas parties to the Company's defaults. The offending covered the period from 2008 to 2014 andrelated to 122 occasions of offending.[7] Mr Williams and the Company had some history of filing tax returns late and making late tax payments or not making payments at all. In fact Mr Williams and the Company were convicted in 2010 on six charges of failing to file tax returns.[8] The index offending occurred between April 2008 and November 2014. Mr Williams participated in the management and operation of the bar. In particular, he was responsible for banking and employing staff as well as overseeing theCompany's tax affairs. As a consequence he had access to the Company's bankaccounts.[9] As a result of Mr Williams' conduct the prosecutor, the Commissioner ofInland Revenue ("the Commissioner"), calculated that the minimum amount evaded by the Company was some $441,174.25 (excluding penalties and interest). Additionally, Mr Williams evaded $48,606.21 of personal income (excluding penalties and interest).[10] No doubt in recognition of the fact there was no realistic possibility Mr Williams or the Company had the means to meet any reparation order no such order was sought. This is because the business had failed, the Company had been placed into liquidation and Mr Williams was an adjudicated bankrupt.Sentencing decision[11] After reciting the facts, Judge Treston observed that Mr Williams, at the age of 58, had lost everything. He referred to the pre-sentence report which recorded him being assessed as of low risk of harm to others and the fact the report recommended home detention.[12] However, his Honour noted that defrauding the Commissioner is not a victimless crime; rather it is activity which affects the whole of society and requires a sentence which combines the principles of accountability and denunciation. As such it ordinarily attracts a sentence of imprisonment.44 R v Adams (2006) 22 NZTC 19,872; James v R [2010] NZCA 206, (2010) 24 NZTC 24,271.[13] Aggravating the offending his Honour noted the level of pre-meditation, the duration and repetitive nature of the conduct and the background of previous offending for failing to furnish returns.[14] However, his Honour accepted that Mr Williams had not led a lavish lifestyle and had accepted responsibility for the offending. He accepted that Mr Williams was genuinely remorseful noting that apart from the earlier convictions, he had an unblemished character and had plainly suffered as a consequence of the failure of hisbusiness. The Judge also referred to Mr Williams' standing in the community andhis generosity and support of various local organisations.[15] The Judge was satisfied that there was a level of pre-meditation having regard to the duration, persistency and number of charges laid. He took into account the amount lost to the Commissioner and Mr Williams' patent inability to make reparation.[16] Taking all those factors into account his Honour determined that theappropriate starting point was one of five years and three months' imprisonment.Full credit was given for his plea of guilty and an unspecified amount for remorse. This resulted in a final sentence of three years and 10 months.[17] Thus the mitigating features, in combination, equated to a 27 per cent deduction from the starting point.Procedural background to the appeal[18] It is appropriate to record the procedural background to this appeal because itis unusual and, to some extent, explains how it is that Mr Williams' appeal was heardmore than 12 months after he was sentenced. This assumes some relevance and importance because, as I understand it, Mr Williams' first parole eligibility is in June this year.[19] Mr Williams filed his notice of appeal on 22 April 2016. The appeal was set down for hearing on 29 June 2016.[20] On 21 April 2016 Mr Williams' counsel, who had appeared at the sentencing,withdrew. I was advised from the bar that this was by reason of serious health issues. New counsel was instructed.[21] On 1 June 2016 the appeal was adjourned on the grounds that a large volume of material needed to be reviewed by the newly instructed counsel5 and there was insufficient time to undertake that task before the appeal was due to be heard.[22] It seems that from this point the matter stalled. There was no progress in getting the appeal to a hearing. Ms Baigent was then instructed. No doubt as a consequence of the delays Brewer J convened a telephone conference on 11 October 2016. His Honour was conscious that Mr Williams had by that time served approximately half of the compulsory component of his sentence. At the telephone conference Ms Baigent advised that she had only recently received the file. She signalled that one area of concern was the question of Mr Williams' cognition as aconsequence of brain injury. Ms Baigent accepted that such a submission would require an evidential basis and the earliest opportunity for an expert to interview Mr Williams was towards the end of 2016. Brewer J struck the appeal out for want of prosecution but granted leave to Ms Baigent to file a further notice of appeal if and when further material was received. He ordered that in that event, the appeal would be given urgency in light of Mr Williams' custodial circumstances.[23] On 6 March 2017 Ms Baigent applied for leave to reinstate the appeal and requested urgency. She advised that as a result of a report from a neuro- psychologist, Mr Waide, it was apparent Mr Williams presented with a complex history of traumatic brain injury which was likely to have resulted in various cognitive deficits which were linked, in a causative fashion, to his offending.[24] Ms Baigent noted that these facts had not been brought to the attention of the sentencing Judge and no reference appeared to have been made to them in the course of defence submissions.5 The newly instructed counsel was not Ms Baigent who appeared on the appeal.[25] On receipt of this memorandum the sentence appeal was reinstated on an urgent basis.[26] There being no available time to hear the appeal in the High Court at Rotorua the matter was set down for hearing before me in the High Court at Hamilton.Approach to appeal[27] Section 250 of the Criminal Procedure Act 2011 ("the Act") applies.Pursuant to that provision the Court must allow the appeal if it is satisfied that:(a) for any reason there was an error in the sentence imposed on conviction; and(b) a different sentence should be imposed.[28] In any other case the Court must dismiss the appeal.6 This section confirms the approach taken by the Courts under the Summary Proceedings Act 1957 where the Court said: 7(a) There must be an error vitiating the lower Court's original sentencing discretion: the appeal must proceed on an "error principle".(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.[29] This Court will not intervene where the sentence is within the range that can be properly justified.6 Criminal Procedure Act 2011, s 250(3).7 Yorston v Police HC Auckland, CRI-2010-404-164, 14 September 2010.[30] The present appeal is advanced on the basis that the error was the failure to advance in mitigation the evidence and consequences of Mr Williams' head injuriesand cognition deficit and its effect on his culpability. Ms Baigent made it clear she was not alleging an error on the part of previous counsel.Appellant's submissions[31] Ms Baigent submits that Mr Waide's report of 13 January 2016 reveals thefull extent of Mr Williams' significant cognitive impairment and, as such, submitsthat this disability reduces his level of culpability and, as a consequence, the sentence which should have been imposed on him. She thus submits that this amounts to an error and a different sentence should be substituted pursuant to s 250 of the Act.[32] In particular, she submits that Mr Williams' neurological presentation mustnecessarily reduce the level of pre-meditation assessed by the sentencing Judge. It also has an influence on other factors relevant to the culpability assessment including the duration and persistency of the offending, the number of charges and the influence of the previous convictions; all matters which his Honour properly regarded as aggravating on the information then before him.[33] Consistent with this submission, Ms Baigent does not take issue with theJudge's starting point; rather, she says that Mr Williams' cognitive impairment is asufficiently significant factor which is relevant to the assessment of personal factors and that had the sentencing Judge been aware of it a materially lower sentence would have been imposed. As such, she submits the sentence was manifestly excessive.Respondent's submissions[34] Ms Tarrant, for the respondent, submits that if Mr Waide's report had beenpresent at the time of sentencing the respondent would have disputed the contention that any neurological impairment was relevant. Further, the Commissioner would have sought her own expert review. She thus submits that as a consequence, adisputed facts hearing8 would, in all likelihood, have been held noting that any mitigating effect of a cognitive deficit would require proof by the appellant on the balance of probabilities9. She submits that in the event this Court is satisfied a lesser sentence would have been imposed the proper course is to remit the matter back to the District Court for a disputed facts hearing and, if necessary, re-sentencing.Discussion[35] This appeal raises five interrelated questions:(a) Is there a proper explanation for Mr Williams' failure to advance thequestion of cognitive impairment at sentencing?(b) If so, is Mr Waide's report sufficiently cogent and reliable such that this Court should receive it on appeal?(c) If so, had Mr Waide's report been before Judge Treston would a different sentence have been imposed?(d) If so, was the sentence imposed manifestly excessive?(e) If so, is the proper course to allow the appeal and remit the matter back to the District Court for a disputed facts hearing or should this Court impose a different sentence?[36] I turn now to consider each of those issues.(a) Is there a proper explanation for Mr Williams' failure to advance the questionof cognitive impairment at sentencing?[37] Before turning to consider Mr Waide's report and the related issues which areengaged on this appeal it is necessary to examine why this information was not before the sentencing Judge at the time of sentencing and whether there is a proper8 Sentencing Act 2002, s 24(2)(d).9 R v Binn Ismail [2015] NZHC 3216 at [20]-[22].explanation for that failure and whether this new evidence should be admitted on appeal.[38] It is plain from the sentencing notes that the existence of a diminished cognitive function, let alone any causal connection to the offending, was not advanced before his Honour. The Judge made passing reference to an injury whichMr Williams " had suffered of later times". However, Ms Baigent was unable toassist on the likely provenance of that comment. I was advised the fleeting reference to an injury may be explained by the fact no mention was made of cognitive deficits in the defence submissions and it is likely, for the reasons given by Mr Waide in hisreport, that Mr Williams' cognitive functioning may have been a good deal more evident at the time of the offending than at later.[39] While it is plainly unfortunate that circumstances have conspired in such away that Mr Williams' disability was not identified earlier and further investigationsundertaken before sentence, I am satisfied there are good and proper reasons whythat omission occurred and why I should admit this evidence on this appeal.[40] Section 335 of the Criminal Procedure Act 2011 governs the admissibility of the Court to receive new evidence in a sentence appeal. It relevantly provides:"335 Special powers of appeal courts in appeal involving conviction, sentence, or contempt(2) For the purposes of an appeal or application for leave to appeal, an appeal court may, if it thinks it necessary or expedient in the interests of justice,—(c) receive the evidence, if tendered, of any witness (including the appellant) who is a competent but notcompellable witness:"[41] In Valentine v Police Gendall J referred to s 335 of the Act and admitted newevidence as to an appellant's mental condition. His Honour said:10"Appeal to adduce further evidence[6] For this appeal the appellant endeavoured to introduce in evidence an affidavit by Mr Michael Thwaites, a prison doctor, as to his present medical condition. Of course leave to do so is required.[7] Under s 335(2)(c) of the Criminal Procedure Act 2011, an appeal court may receive evidence if it thinks it necessary or expedient in the interest of justice. In the present appeal, given that the respondent has little objection to the introduction of this additional evidence, I exercise mydiscretion to receive this evidence of Mr Thwaites as to the appellant'scurrent medical condition. Leave is granted for this purpose."[42] In Leaupepe v Police Faire J articulated the general principles for adducing evidence on appeal and applied these to the sentence appeal before him:11"[21] When a party proposes to present additional evidence on appeal, the general rule is that they must show the proposed evidence is fresh in the sense that it could not with reasonable diligence have been called in the first instance. (Citing R v Bain [2004] 1 NZLR 638 (CA) at [18]-[27], affirmed on appeal in Bain v R [2007] UKPC 33 (2007) 23 CRNZ 71 at [34]; Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 at [24]; Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].) Though the majority of the new evidence provided to this Court could likely have been called in the first instance, the rule is not immutable. The overriding criterion is always what course will serve the interests of justice. (Citing R v Bain [2004] 1 NZLR 638 at [22].) In addition, to be capable of acceptance, the evidence must be admissible, credible and cogent. (Citing R v Bain at [23].)"[43] The overriding principle will always be what course best serves the interests of justice. This is reflected in s 355(2) which specifically makes reference to theadmission of new evidence being "necessary or expedient in the interests of justice".As Faire J observed in Valentine the rule of evidence must be "fresh" is notimmutable.[44] I am satisfied that it is in the interests of justice to admit the evidence. My reasons follow.[45] First, I refer to Ms Baigent's submission on the likely provenance of Judge Treston's passing reference to an injury Mr Williams had suffered "of later times".10 Valentine v Police [2016] NZHC 400.11 Leaupepe v Police [2016] NZHC 76.She submitted that this reference may well be explained by the fact that although it was known to counsel that Mr Williams had suffered an injury it is likely, accordingto Mr Waide that Mr Williams' cognitive functioning may have been a good dealmore evident at the time of the offending than later. In other words counsel did not appreciate the significance of the injury or its consequences or its causal connection to the offending.[46] Secondly, Ms Baigent advises that Mr Williams spent 20 minutes with counsel on one attendance and about 10 minutes on the day of sentencing. Shesubmits this was insufficient time in which to explore any aspects of Mr Williams'presentation even if counsel was aware of it.[47] Thirdly, if Mr Williams was reticent about disclosing his cognitive impairment to others, as seems to be the case,12 it is perfectly understandable that his counsel would not have independently recognised any symptoms for what they were.[48] Fourthly, although the sentencing notes suggest it is likely Mr Williams'counsel was aware he had suffered a brain injury it is equally clear that he did not appreciate its severity let alone its causal connection to the index offending.[49] I now turn to consider Mr Waide's report.(b) Is Mr Waide's report sufficiently cogent and reliable?[50] Mr Waide is a registered clinical psychologist who practices as a neuro- psychologist. Although the details of his qualifications and experience were not placed before me Ms Tarrant does not take issue with his expertise although, in fairness to her, the report was only received by counsel a day or so before the hearing and the respondent has not had an opportunity to fully reflect on this issue. I alsonote Ms Tarrant's submission that if offered the opportunity the respondent might wish to engage its own expert or at least refer the report to another expert for review.12 The sentencing remarks indicate Mr Williams may not have fully disclosed the nature and extent of his disability to Ms Stewart for fear of disappointing her.[51] However, I am satisfied that the report is both reliable and cogent. This is because, in addition to the clinical interview Mr Waide undertook with Mr Williams, there were other sources of information independent of Mr Williams' self-reporting. These include Ms Stewart, his long time partner, and other independent sources such as hospital discharge information and neuro-psychological psychometric testing. Attempts by Ms Baigent to obtain Mr Williams' medical records from his former general practitioner have proved fruitless. His doctor has retired and the records cannot be located.[52] Furthermore, the report itself is extremely detailed running to some 13 pages.It sets out Mr Williams' extensive history of head and brain trauma and his reporting of cognitive and behavioural features. The report also covers, in some detail, the results of neuro-psychological psychometric testing following the administration of a battery of diagnostic tests.[53] Of significance, in my view, is that the neuro-psychometric testing indicated a range of cognitive competence levels across the various criteria measured. Some indicated areas of significant cognitive impairment while others were regarded by the author as insignificant. In other words, Mr Williams did not perform poorly across the full range of testing, a feature which might have raised suspicions of malingering. The report evinced balance and objectivity. An example of thisappears in Mr Waide's summary and conclusions where he observed:"Mr Williams did appear to be able to plan relatively well where there wereclear instructions and task structure, consistent with reports of his everyday functioning. However, he struggled noticeably where there was less certainty about what he was required to do and displayed clear deficits in his ability to utilise feedback to change his approach which led to persistent poor decision-making even when his choices were clearly not working forhim."[54] Reading the report as a whole I am satisfied that it is both reliable and cogent and I am prepared to admit it on this appeal.(c) If Mr Waide's report had been before Judge Treston would a different sentence had been imposed?[55] This question raises a number of sub-issues which require consideration. These are:(a) What does the report conclude?(b) Does that conclusion operate as a mitigating factors in terms of s 9(2)(e) of the Sentencing Act 2002?(c) Did the offender have a limited understanding or cognitive function deficit?(d) If so, is it sufficient to reduce his moral culpability for the offending?(e) If so, to what extent?[56] I shall deal each of these questions in turn.[57] Although the report is lengthy and detailed the conclusions contained in it are capable of a reasonably succinct summary. In the 40 year period between 1969 and 2009 Mr Williams sustained a substantial number of significant traumatic head injuries caused by various physical activities including rugby, skiing and rodeo. Ms Baigent calculated some 16 separate accidents resulting in Mr Williams receiving sufficiently forceful head trauma to render him unconscious. On some occasions these events were serious enough to require his admission to hospital.[58] The first occurred when he fell off the back of a tractor at the age of 12. He developed an infection and, apparently, significant swelling to his head. In his adolescent and early adult years he suffered a series of significant rugby injuries. Plainly Mr Williams was a very successful and promising rugby player. He was a junior All Black and a Waikato representative player. However, it appears his rugby playing career was marred by multiple and successive episodes of head injuries and concussion, one of which resulted in a skull fracture.[59] He also suffered head injuries in several car crashes and a skiing accident.[60] However, most significantly, in 2009 he fell badly when riding a bull at the Taupo Rodeo. He was then aged 52 years. He was admitted to hospital with multiple fractures, a punctured lung and internal bleeding. Mr Waide observed his lack of memory of the 2009 events is strongly suggestive of the effects of brain trauma.[61] The report noted that Mr Williams' history of accidents involving dangerous physical activities is also suggestive of poor judgement and a reduced appreciation of risk.[62] That cognitive deficits existed at the time of the offending appears confirmed by Mr Williams exhibiting symptoms consistent with the third and fourth stages of chronic traumatic encephalopathy ("CTE"). This is a progressive degenerativedisease which develops in those who have suffered a severe blow or blows to the head. It is frequently encountered in individuals with backgrounds in contact sports such as rugby players and rodeo riders. The symptoms of CTE generally begin about 10 years after the traumatic brain injuries were inflicted. First stage symptoms include deterioration in attention as well as disorientation, dizziness and headaches, all symptoms which Mr Williams reported suffering after the events described. Further progressive disabilities such as memory loss, social instability, erratic behaviour and poor judgement frequently develop. The third and fourth stages of CTE are associated with progressive dementia, inhibition of motor skills, reduced facial expression, impeded speech, tremors, vertigo and deafness. According to the report, Mr Williams presents with a number of these symptoms including deficits in attention, episodes of dizziness, chronic headaches, long term deafness and poor judgement. Most recently he has been observed with early on-set tremors. CTE is apparently not capable of diagnosis using conventional diagnostic imaging. According to Mr Waide it can only be diagnosed definitively by histological examination following autopsy.[63] It follows from this catalogue of symptoms I am satisfied Mr Williams is suffering from cognitive and other deficits consequent upon successive head and brain trauma.[64] The next question is whether this condition was present at the time of the index offending. The report concludes it was. Mr Williams' most serious accidentoccurred was in 2009 when he was injured at the rodeo. This was relatively early in the offending sequence. Indeed, as noted earlier, the suggestion is that his ability to function may have been more pronounced at the time of the offending than when he was assessed by Mr Waide. This is because the symptomology apparently recedes when proper sleep patterns are restored and given opportunities to rest during bouts of fatigue.[65] The next question is whether the cognitive impairment suffered by Mr Williams operates as a mitigating factor in terms of s 9(2)(e) of the Sentencing Act? I am satisfied it does.[66] Section 9(2)(e) provides as follows:"9 Aggravating and mitigating factors(2) In sentencing or otherwise dealing with an offender the court must take into account the following mitigating factors to the extent that they are applicable in the case:(e) that the offender has, or had at the time the offence was committed, diminished intellectual capacity or understanding;"[67] It is well settled that a traumatic brain injury may operate as a personal mitigating factor on sentencing.1313 Blackwood v R [2011] NZCA 143.[68] The question here is whether Mr Williams had a limited understanding or cognitive function deficit at the relevant time? For the reasons already given I am satisfied he did. The report states that the neuro-psychometric testing indicated areas of significant cognitive impairment. However, the question in terms of s 9(2)(e) iswhether such an impairment is sufficient to reduce Mr Williams' moral culpability for the offending. The report concludes it does. This is because the complex series of interrelated adverse effects means that Mr Williams struggles when there is uncertainty about what he is required to do leading to persistent poor decision-making even when the choices "were clearly not working for him". The reportstated that it was notable that in addition to the conduct reflected in his offending Mr Williams appeared unable to make effective decisions in other areas of his life leaving him with deficits in terms of his ability to assess risk or the insight to appreciate the consequences of his actions.[69] This combination of features provides some context and insight into Mr Williams' offending. Whilst his pleas of guilty necessarily reflect his acceptancethe offending was intentional, the progressive nature of Mr Williams' impairmentprovides some understanding into how a formerly successful business failed and Mr Williams embarked on his course of deception despite previously being convicted of revenue offences. This conduct reflects both a lack of insight and a lack of appreciation of the consequences of his actions and as such qualifies in reducing his moral culpability.[70] The aggravating factors of pre-meditation, persistence and prior history mustbe viewed in this paradigm. This is not to say Mr Waide's conclusions necessarilymean those features of aggravation evaporate completely. They do not. However, when viewed against a background of progressive cognitive impairment their weight and prominence for sentencing purposes is reduced.[71] It follows that the next question must be to what extent is Mr Williams' moralculpability reduced? This is a more difficult issue.(d) If a different sentence should have been imposed what should it be?[72] Ms Baigent submits that it would be open to the Court to discount the starting point by 40 per cent before the allowance for a guilty plea as the Court of Appeal permitted in Blackwood. However, the extent of Mr Williams' cognitive deficit and its connection to an assessment of moral culpability is quite different from that which confronted the Court of Appeal in Blackwood. Nor do I accept the position is the same as that in P v R.14[73] I am of the view that a much more modest discount in the order of 15 per cent is appropriate. This is supported by the Court of Appeal's analysis in E v R which sets out the varying discounts which have been given for cognitive deficits.15[74] A brief summary explains why.[75] In Blackwood a 40 per cent discount was granted to reflect reduced culpability as well as the increased severity of a sentence of imprisonment on B. B had been convicted of sexual violation by rape against a former partner. He had been involved in a serious accident and as a consequence suffered a severe head injury which involved six weeks of post traumatic amnesia, and reduced speed of information processing. The accident had also affected B's ability to select, focusand sustain attention and concentration. There were also subtle difficulties with his memory and difficulties with complex social-communication skills.[76] In P v R a 40 per cent discount was given where P had sustained severe brain injury from a car accident suffered when P was eight years old. The injuries included a frontal skull fracture and contusion which resulted in damage to that part of his brain which regulates mood and behaviour. As a consequence he experienced severe cognitive fatigue which significantly reduced his capacity to distinguish between right and wrong.1614 P v R [2016] NZCA 128.15 E v R [2010] NZCA 13.16 P v R above n 14.[77] In R v Wright17 a 30 per cent discount was given in acknowledgement of W'sreduced criminal responsibility. She smothered her child while suffering from a serious mental disorder18.[78] In R v L at 25 per cent discount in recognition of reduced criminal responsibility was given. L was charged with arson and 10 counts of threatening to kill. After trial a psychiatric report was commissioned which indicated L suffered from delusional beliefs and while these did not arise from any recognised major psychotic disorder it was accepted that L's culpability was reduced by reason of thisdisability.19[79] In E v R a 20 to 25 per cent discount was given in recognition of E's reducedculpability and also the fact that a sentence of imprisonment would be disproportionately more severe. E laboured under a major depressive disorder together with the additional pressure of the alleged sexual abuse of her daughter against a background of E being sexually abused as a child.20[80] In R v Whiu a 20 to 25 per cent discount on account of reduced criminal responsibility was considered appropriate. The Court accepted on the basis of apsychological report there was a causal relationship between W's offending (dangerous driving causing injury while driving with EBA) and W's post traumaticstress disorder. The Court concluded that W's decisions in relation to her offendinghad been affected by this disorder.21[81] In Dalley v R a 13 per cent discount was given on account of reducedcriminal responsibility through the role that D's mental illness played in the offending. D was sentenced for aggravating burglary and wounding with intent to cause grievous bodily harm. It was determined that D was in the midst of a hyper manic episode at the time of the offending. The Court accepted this explained his attack on the victim. While it was recognised that the psychiatric condition was17 R v Wright [2001] 3 NZR 222 (CA).18 Munchausen syndrome by proxy which describes the conduct of a parent who causes or feigns sickness in a young child to attract sympathy and attention.19 R v L [1998] 2 NZLR 141 (CA).20 E v R [2010] NZCA 13.21 R v Whiu CA 195/07, 20 December 2007.probably due to lack of medication he was found not to be responsible for his manic state because his psychiatric history established he could not be relied upon to self medicate.22[82] In R v M a 12 per cent discount was given in recognition that a term of imprisonment would be more difficult than for others. M functioned at low intellectual levels but had not been diagnosed as having an intellectual disability. Even though there was no causal nexus established between the mental illness andthe offending, the Court was satisfied that because M's acknowledged low level of intellectual function and diminished ability to "cope with the stresses of life", a termof imprisonment would be more onerous for M than others.23[83] These cases demonstrate that discounts are given either because cognitivedeficit reduces the offender's moral culpability or because of cognitive deficit orrender a sentence of imprisonment more severe for the offender than would otherwise be the case.[84] In the present case the focus of Ms Baigent's submissions were thatMr Williams' cognitive deficit led to his inability, or reduced ability, to assess risk orto have the insight to appreciate the consequences of his actions.[85] On the basis of the authorities reviewed above I am satisfied that a 15 percent discount is justified on account of the reduction in Mr Williams' criminalresponsibility. The causative effect of his cognitive deficits appear to sit somewhere near Whiu where the Court of Appeal found "some causal relationship" between W'scognitive deficit and his offending. I am satisfied there is a similar causalrelationship in the present case although Mr Williams' deficits do not appear to havecontributed to his offending to the same extent as the cases cited earlier in this judgment and as relied upon by Ms Baigent. In those cases the offenders were labouring under serious mental conditions which clearly drove their offending. Those features are not present to anything near the same extent in Mr Williams' case.22 Dalley v R [2010] NZCA 290.23 R v M [2008] NZCA 148.(e) Does the difference means the sentence actually imposed was manifestly excessive?[86] A 15 per cent discount on the starting point adopted by Judge Treston reduces the sentence by approximately seven months. When the full discount for mitigating features is then applied the final end sentence is one of three years and three months'imprisonment. The difference between the sentence imposed by Judge Treston and the sentence I consider appropriate is seven months.[87] It follows that I am of the view the appeal should be allowed. An error identified as a result of additional material submitted on appeal demonstrates that the sentence was manifestly excessive and a new sentence should be imposed. The next question is whether I should impose that new sentence on appeal.(f) If the appeal is allowed should the matter be remitted to the District Court for a disputed facts hearing and possible re-sentencing?[88] Ms Tarrant submits that if I was to allow this appeal the proper course would be to remit the matter back to the District Court for a disputed facts hearing and possible re-sentencing. That course has certain attractions. First, it would permit the Commissioner, if she chooses, to engage her own expert to review the report and if necessary examine Mr Williams. Secondly, if she wishes to challenge Mr Waide'sfindings she could commission her own expert report which would form the basis of a challenge for the purposes of a disputed facts hearing. Thirdly, a disputed facts hearing would permit the evidence to be tested in a robust and principled fashion with the Court making a reasoned determination on that evidence.[89] This would have been my preferred course but for the fact that in less than three months Mr Williams will become eligible for release on parole. If I was to remit this matter back to the District Court it is inevitable that there will be further delays measured in months. The Commissioner may need to engage an expert toreview Mr Waide's report. If it is to be challenged a further report will need to be prepared and exchanged and a hearing date for the disputed facts hearing obtained. If Mr Williams is successful he will need to be re-sentenced. The reality is that it is all but certain this series of procedural steps could not be completed until sometime after Mr Williams becomes eligible for parole. While, of course, there can be nocertainty he will be released at that time, the irony is that there must be a real risk that if I was to allow his appeal but adopt the Commissioner's preferred approach the likely result will be that Mr Williams will actually serve more time in custody than if I dismissed his appeal. Such a result would be plainly unjust. For that reason I am not prepared to be the architect of any further delays in this protracted litigation. For the reasons already given I am satisfied it is appropriate for this Court to substitute the different sentence.Result[90] The appeal is allowed.[91] The sentence imposed in the District Court is quashed and a sentence of threeyears and three months' imprisonment is substituted on all charges with each sentence to be served concurrently.Moore JSolicitors:Ms Baigent, WellingtonAlmao Douch, Hamilton