KERR v NEW ZEALAND POLICE [2023] NZHC 2235

KERR v NEW ZEALAND POLICE [2023] NZHC 2235 [18 August 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2023-409-131[2023] NZHC 2235BETWEEN REUBEN KERRAppellantAND NEW ZEALAND POLICERespondentHearing: 17 August 2023Counsel: R J T George for AppellantL Fiennes for CrownJudgment: 18 August 2023JUDGMENT OF CHURCHMAN JIntroduction[1] On 9 June 2022, Reuben Kerr (the appellant) was sentenced by Judge Couchin the Christchurch District Court to four months' imprisonment, on two charges towhich he pleaded guilty.1[2] These charges were:(a) assault;2 and(b) resisting a corrections officer.31 Police v Kerr [2023] NZDC 11677.2 Crimes Act 1961, s 196; maximum penalty one years' imprisonment.3 Summary Offences Act 1981, s 23; maximum penalty three months' imprisonment or a fine notexceeding $2,000.[3] Mr Kerr appeals on the ground that the sentence imposed was manifestlyexcessive, and that there was an error in the sentence imposed. Mr Kerr submits thatthe Judge failed to properly account for his personal mitigating circumstances.[4] The police oppose the appeal, submitting that the sentence was in all respectswithin range and that the appeal should be dismissed.BackgroundThe offending[5] Mr Kerr is a sentenced prisoner in the Intervention Support Unit atChristchurch Men's Prison. On 19 August 2022, following a phone call to his lawyer,Mr Kerr became aggravated and refused to go back to his cell. He was aggressivetowards Corrections staff, who attempted to move him to his cell and restrained him.As Mr Kerr was placed in his cell, while restrained, he turned quickly and threw anumber of punches as Corrections staff, hitting the complainant, a Corrections officer,in the face. Pepper spray was then used on Mr Kerr to stop his resistance. Thecomplainant received some bruising to the head, and a chipped tooth.Pre-sentence report[6] Mr Kerr is 24 years old and of Pākehā descent. Mr Kerr reported thatimmediately prior to the offending he had an upsetting conversation with his lawyer,that he is regretful, and that he is now working on his violence.[7] Mr Kerr has a criminal history which began in 2018 and involves mostlyviolent offending, including six assault convictions and one of injuring with intent toinjure. On this basis, the pre-sentence report-writer assessed Mr Kerr as being at ahigh-risk of reoffending, particularly while he is in custody, and specifically againstCorrections officers. Mr Kerr has a history of offending against Corrections staff. Thereport-writer recommends a sentence of imprisonment.[8] Mr Kerr was raised on the West Coast of the South Island by his mother andstepfather. He has limited contact with his biological father. He reported experiencingphysical abuse from his stepfather, and received limited education due to hisaggressive behaviour at school, as well as learning difficulties. Mr Kerr startedexperiencing epileptic seizures when he was four and a half years old, from which hehas sustained damage to his frontal lobe. He was first imprisoned when he was aged14, and has spent significant time in custody since. He reports enjoying the structurethat prison provides.[9] Mr Kerr is currently placed in the Intervention Support Unit because he has anumber of mental health diagnoses, including Attention Deficit HyperactivityDisorder, Opposition Defiant Disorder, anxiety, and depression. He has a pattern ofimpulsive self-harming and suicidal ideation. He is recorded as having low cognitivefunctioning. Despite this, he has been assessed by Forensic Mental Health Servicesas not meeting the threshold of a major mental illness, and therefore he is unable toaccess specialist mental health services. Te Whatu Ora have also declined to fund ahealth package for Mr Kerr upon release.[10] The report-writer notes that Mr Kerr's ability to comply is low despiteextensive work that has been done to place Mr Kerr in supportive environments. Thereis concerns that he will continue to offend following his release, although it is reportedthat plans are being developed to support him when this occurs.First s 38 report[11] There are two reports prepared pursuant to s 38 of the Criminal Procedure(Mentally Impaired Persons) Act 2003 (CPMIP Act) on the court file. They wereprepared to assist the court in determining whether Mr Kerr was unfit to stand trial forthe current offending.[12] The first report is dated 21 March 2023, and was prepared by Dr Paul Brown,a Consultant Psychiatrist at Canterbury Regional Forensic Psychiatric Service.Dr Brown interviewed Mr Kerr at Christchurch Men's Prison, had access to Mr Kerr'smedical records, and also had a telephone conversation with Mr Kerr's mother.[13] Dr Brown is of the opinion that Mr Kerr's current mental health presentationwould be considered to constitute a mental impairment within the meaning of theCPMIP Act. He records that Mr Kerr's mental health is complicated by his 'intractableform of epilepsy', which has led to an accumulation of mild traumatic brain injuries,exacerbated by a pre-existing personality disorder. Dr Brown says that there is thoughtto be no viable route to stabilising Mr Kerr's epilepsy.[14] Nonetheless, Dr Brown considered that Mr Kerr was fit to stand trial, stating:During a detailed conversation, he spontaneously was able to understand,retain and consider information relevant to the charges and typical legalprocesses. He clearly demonstrated an ability to communicate his views andpreferences. Without prompting, he communicated a rounded knowledge ofhis current charges, potential outcomes, and the difference between potentialsentences in the situation he pleaded guilty [compared with] being foundguilty after a not-guilty plea. He was able to describe the role of his lawyerbefore and during court processes, the role of the judge, and a potential juryand the importance of having good advice and being able to express his viewsand instructions to the court during court proceedings. He felt he wouldmanage well with a standard hearing without adaptations but agreed thatchanges or delays may be needed if his epilepsy was less stable on the day.(emphases omitted)[15] Dr Brown records that Mr Kerr had a turbulent childhood, witnessing andexperiencing many incidents of physical abuse, with his six half siblings. He attendedseveral different primary schools, being suspended and expelled owing to assaults onteachers, or aggression in the school context. He has used alcohol and cannabis sincehis teenage years, when his offending began, involving frequent acts of physicalaggression, assaults, possession of weapons, damage to property, shoplifting, andtheft.[16] Dr Brown notes that Mr Kerr has had significant contact with Child andAdolescent Mental Health Services from a relatively young age. Given Mr Kerr'shistory, Dr Brown assesses Mr Kerr as remaining at a high risk of impulsive acts ofviolence in the context of intoxication, and interpersonal conflict when he isdysregulated. He says that these risks may be higher when he has recently had aseizure.[17] Mr Kerr's mother broadly corroborated Mr Kerr's background and medicalhistory, and outlined her concerns about the lack of services available to supportMr Kerr in the community. She reported that Mr Kerr is determined to improve andthat she hopes to support him to settle when he is released from custody.Second s 38 report[18] The second s 38 report is dated 23 March 2023 and was prepared byMs Elizabeth Milne, a clinical psychologist. Ms Milne interviewed Mr Kerr atChristchurch Men's Prison, had access to his medical records, spoke to his lawyer, andalso Corrections staff.[19] Ms Milne records that prior to Mr Kerr's period of imprisonment, he residedin the Intellectual Disability and Forensic Unit at Porirua Hospital for approximatelyfour years under an extended Intellectual Disability (Compulsory Care andRehabilitation) Act 2003 order. He has also spent time in youth justice facilities.Ms Milne records that Mr Kerr has repeatedly been assessed and medicated in respectof his epilepsy, and that he has a history of not complying with his medication regime.[20] Ms Milne records that Mr Kerr has a basic understanding of the roles of personsin court, and their functions. He understood plea options, and the effect of evidencein the prosecution case. Mr Kerr has a good working relationship with his lawyer, andnoted that he trusted his lawyer. Ms Milne notes that Mr Kerr has recently beencomplying with his medication regime and this has stabilised his health. She, likeDr Brown, considers that Mr Kerr is likely to have a mental impairment within thatdefinition in the CPMIP Act, and also that he is fit to stand trial.District Court decision[21] The Judge discussed the factual background of the offending, and noted thepersonal mitigating factors advanced by counsel on behalf of Mr Kerr. The Judgeconsidered that Mr Kerr has a significant mental impairment and personality issues.The Judge recorded that he took those mitigating factors into account, but that it wasalso important to deter persons in custody from assaulting prison officers.[22] The Judge noted that an assault on a Corrections officer is an aggravating factorincluded in the Sentencing Act.4 The Judge then adopted a starting point of five4 Sentencing Act 2002, s 9(1)(fa).months' imprisonment for the totality of Mr Kerr's offending, then uplifting by10 per cent on the basis of Mr Kerr's six previous assault convictions.[23] As to mitigating factors, the Judge accepted that Mr Kerr was entitled to a full25 per cent guilty plea discount, leading to end point of just over four months'imprisonment, which the Judge rounded down to four months. The Judge did notaccept the argument made by counsel for Mr Kerr that the sentence should be madeconcurrent on his existing sentence, saying that would deprive the sentence of anydeterrent effect.[24] The Judge concluded by stating:5On the charge of common assault then you will be sentenced to imprisonmentfor four months, cumulative on the current sentence which was imposed on13 January 2021. You will be sentenced to two months concurrent of thecharge of resisting.Positions of the partiesAppellant[25] Mr George, on behalf of Mr Kerr, submits that the Judge erred in not providingdiscounts for Mr Kerr's personal circumstances, and that therefore the sentenceimposed was manifestly excessive. Mr George submits that discounts should havebeen provided for Mr Kerr's mental impairment, personal deprivation, and youth.[26] As to mental impairment, Mr George notes that Mr Kerr's mental impairmentwas accepted as significant by the Judge, and was based on the evidence provided inthe two s 38 reports. Mr George submits that Mr Kerr's offending shows consistencywith the findings of Dr Brown and Ms Milne, which were that the offending was amanifestation of Mr Kerr's mental impairment and/or personality disorder. Mr Georgesubmits that the Judge erred in declining a discount for mental impairment, apparentlyon the need to recognise general deterrence. He says that general deterrence shouldbe moderated as a purpose of sentencing when the evidence shows that an offending5 Above n 1, at [9].was "not conduct performed rationally by one who exercises a willed choice tooffend".6[27] As to personal deprivation, Mr George submits that the s 38 reports also recordthat Mr Kerr was 'subject to an abhorrent childhood'. He says that there is an obviouscausal connection between the violence Mr Kerr experienced in his childhood and hiswillingness to use violence as a way to rationalise his emotions. He submits that thisfactor should have been a potent sentencing factor warranting a substantial discount.[28] As to youth, Mr George that Mr Kerr should receive a discount based on hisyouth as he was 24 years old at the time of his offending. He accepts that a discountfor youth would overlap somewhat with a discount for mental impairment, given theimpulsivity that could be said to arise from both his mental impairment and relativeyouth. Nevertheless, he submits that a discrete discount should be applied to recogniseMr Kerr's age and lack of maturity.[29] Finally, Mr George submits that although the Judge was limited in his optionsas Mr Kerr was already serving a sentence of imprisonment, the present offendingwould seldom attract a sentence of imprisonment. He submits that whenacknowledging that Mr Kerr would in other circumstances, have received a sentenceless than imprisonment, the effect of the manifestly excessive sentence imposed isexacerbated. He notes Woolford J's view that:7it is more common for small variations to be made to the length of shortsentences than to the length of long sentences. Tinkering also tends to bedefined by reference to the proportionate reduction rather than the periodinvolved.[30] In sum, Mr George submits that evidence of Mr Kerr's personal mitigatingcircumstances was plainly before the District Court and the Judge failed to apply theappropriate discounts in fixing the end sentence. He says that the result was amanifestly excessive sentence.6 E (CA689/10) v R [2011] NZCA 13 at [68].7 Deslaurier v Police [2022] NZHC 1078 at [21].The police[31] Ms Fiennes, counsel for the police, submits that the sentence was in range andthat Mr Kerr's appeal should be dismissed. She accepts that the Judge did not followthe sentencing methodology adopted in Moses v R, as he did not take into accountMr Kerr's personal mitigating features after setting a starting point for the gravity ofthe offending. However, she submits the starting point adopted by the Judge supportsthe inference that, in fixing that starting point, the Judge must have taken into accountthe mitigating factors advanced by Mr Kerr, and that the end sentence is not manifestlyexcessive.[32] Ms Fiennes submits that the aggravating factors of the offending include:offending against a Corrections officer, attacks to the head, and the harm suffered bythe complainant. She says that a starting point of seven to eight months' imprisonmentwould have been available to the Judge, citing R v Matehaere, Kershaw v Police andR v Edwards.8 She submits that had the Judge adopted a starting point of eight months'imprisonment, uplifted 10 per cent for previous convictions, and then applied a30 per cent personal factors discount alongside a 25 per cent guilty plea discount, theend sentence would have been approximately the same as what was actually imposed.She says the sentence therefore cannot be manifestly excessive.[33] Ms Fiennes accepted that discounts were available for Mr Kerr's mentalimpairment and background, but submitted that the Judge had allowed for thosefactors at the first step of the sentencing process. She says that a discount of 20 percent would be appropriate, but that because the appellant was aged 24 at the time ofthe offending, any discount for youth should be discrete and limited. In oralsubmissions she referred to a five per cent discount.[34] Ms Fiennes submits that it was open to the Judge to hold that general deterrenceremained a relevant sentencing principle for the offending. She says that for offendingof the present nature there is a general need for denunciation and deterrence to thewider community in particular, sentenced prisoners.8 R v Matehaere DC Christchurch CRI-2011-009-013507, 21 February 2013; Kershaw v Police[2019] NZHC 379; and R v Edwards DC Christchurch CRI-2012-009-1144, 22 August 2013.Approach to appeal[35] An appeal against sentence is an appeal against a discretion. Under s 250 ofthe Criminal Procedure Act 2011, the appeal court must allow the appeal if satisfiedthat for any reason, there is an error in the sentence imposed on conviction, and adifferent sentence should be imposed. The Court must dismiss the appeal in any othercase. Where the appeal court allows the first appeal, the appeal court must, pursuantto s 251:(a) set aside the sentence and impose another sentence (whether more orless severe) that it considers appropriate; or(b) vary the sentence, vary any part of the sentence, or vary any conditionof the sentence; or(c) remit the sentence to the court that imposed it and direct that court totake any action of a kind described in paragraph (a) or (b) as specified.[36] Section 250(2) was not intended to change the previous approach taken by thecourts under the now repealed Summary Proceedings Act which applied where thesentence was "clearly excessive or inadequate or inappropriate".9 Further, despites 250 making no express reference to "manifestly excessive", this principle is"well-engrained" in the court's approach to sentence appeals. An appeal court cannot"tinker" with the end sentence if the end sentence is within range.10 The focus is onthe end sentence and not the process adopted to reach that end sentence. As recentlystated by the Court of Appeal:11[16] It is the end sentence which must be shown to be manifestly excessive.It is the end sentence which will be the Court's focus. Where one componentof a sentence is criticised, the Court's inquiry, if the criticism is found justified,will be whether the end sentence is nevertheless within the range available tothe sentencing Judge.129 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26] and [27].10 Ripia v R [2011] NZCA 101 at [15].11 Te Ao v R [2023] NZCZ 327.12 Tutakangahau v R, above n 9, at [39], citing Green v Police [2014] NZHC 444 at [21].[17] We use the term "range" advisedly. Determining a sentence is not amathematical exercise. It is a judicial evaluation. Different judges could quiteproperly weigh factors relevant to a sentence differently.[18] A sentence might lie in a range from lenient to stern and beunimpeachable.[19] For a sentence to be manifestly excessive it must be beyond the upperend of the range available to the sentencing Judge. In other words, it will besignificantly more severe than it ought to have been having regard to theseriousness of the offence and the culpability of the defendant.Analysis[37] The sole focus of Mr Kerr's appeal was on the Judge's failure to discount formitigating factors. I address these matters in order.[38] As a preliminary matter, I accept (as was conceded by the Crown) that it is notapparent that the Judge adopted the sentencing methodology set out in Moses v R.13That methodology imposes a two-step process. First, the gravity of the offending isassessed for the purposes of setting a starting point, with regard to the aggravating andmitigating factors of the offending. Second, the starting point is adjusted by factorsrelating to the offender, both aggravating and mitigating.[39] The District Court Judge did set a starting point relative to the offending, notingthe need for the general deterrence of violence against Corrections officers, and thefact that the infliction of violence against a prison officer acting in the course of theirduty is an aggravating factor recorded in the Sentencing Act 2002.14[40] However, I am satisfied that the Judge erred in his consideration of thedefendant's mitigating factors. It appears that the Judge took into account Mr Kerr'spersonal mitigating factors in addressing the gravity of the offending under the firststep, concluding that an aggravating factor relative to the offending, obviated the needfor a discount, because of the importance of general deterrence. That is not inaccordance with the two-step process.13 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.14 Sentencing Act 2002, s 9(1)(fa).[41] The defendant's personal characteristics are seldom relevant to an assessmentof gravity under the first step. Their impact comes at the second step, when assessingthe manner in which those characteristics mitigate their culpability. Other than torecord that Mr Kerr's guilty pleas warranted a 25 per cent discount, the Judge did notappear to undertake that all important second step. I am accordingly satisfied that theJudge erred in his consideration (or lack thereof) of Mr Kerr's mitigatingcircumstances.[42] I turn now to whether that error means that Mr Kerr's sentence was manifestlyexcessive.Mental impairment[43] As submitted by Mr George, the Court of Appeal has noted:15A mental disorder falling short of exculpating insanity may be capable ofmitigating a sentence either because: if causative of the offending, itmoderates the culpability; it renders less appropriate or more subjectivelypunitive a sentence of imprisonment; or because of a combination of thosereasons. The moderation of culpability follows from the principle that anygeneral criminal liability is founded on conduct performed rationally by onewho exercises a willed choice to offend.[44] Put simply, the criminal justice system is premised on an assumption thatpersons offend rationally. In certain circumstances, where it is shown clearly that aperson's offending was less than rational, by reference to mental impairment, theirculpability is considered reduced. I consider that there is an evidential basis thatMr Kerr's culpability is mitigated by his mental impairment, as seen in the reportsprepared by Dr Brown and Ms Milne. Mr Kerr's is a clear case of an offender whoseability to rationally manage his impulsivity is limited.[45] While he does not have a definitive diagnosis, the evidence indicates that hehas a mental impairment that is undoubtedly linked to his offending. That does notentirely mitigate his culpability, but it does go some way to explaining his offending.This is because the evidence of Dr Brown and Ms Milne illustrates that Mr Kerr is athis most impulsive and/or aggressive. in the periods before and after he experiences15 E (CA689/10) v R, above n 6, at [68].an epileptic seizure. The epilepsy that he experiences has led to an accumulation ofmild traumatic brain injuries, considered to further exacerbate his personality issues.I am of the view that in the circumstances, a discrete discount of 10 per cent would bejustified on the basis of Mr Kerr's mental impairment.Personal deprivation[46] In Berkland the Supreme Court clarified how s 27 reports (and backgroundfactors generally) are to be approached in the sentencing exercise.16 While in thepresent case the District Court did not have a s 27 report, the two s 38 reports includeinformation relating to Mr Kerr's background and upbringing, corroborated inDr Brown's report by a conversation Dr Brown had with Mr Kerr's mother. Thatinformation was relevant to whether Mr Kerr's background could mitigate hisculpability. The District Court Judge did not refer to that information.[47] The Supreme Court concluded in Berkland that the required degree ofconnection between background factors and their mitigatory effect on sentencing is a"causative contribution" approach.17 The Court held that circumstances of deprivationcan have a powerful explanatory force in revealing how an offender has come to offendand in guiding the court's assessment in sentencing.18 This is of particular importancein the context where offending can be linked to intergenerational depravation.19 Thediscount range for these factors is wide and largely fact dependent.[48] The material before the District Court establishes that violence was normalisedin Mr Kerr's upbringing. He experienced and witnessed family violence in his ownhome. He regularly moved between care settings, spending time with OrangaTamariki, and being expelled from a number of schools. He had significant contactwith Mental Health Services from a young age, and the management of his behaviourwas complicated by his epilepsy.16 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.17 At [109].18 At [120].19 At [125].[49] As submitted by Mr George, it is apparent that from a young age, Mr Kerr hasused violence as a method for rationalising his emotions. While his use of violence isto be condemned, when viewed in the context of Mr Kerr's upbringing, it is in myview, causally connected to that upbringing. I am satisfied that there is a causal linkbetween personal deprivation in Mr Kerr's background and his willingness to useviolence, that would justify a discrete discount of 10 per cent.Youth[50] The Court of Appeal has recently re-examined research regarding theneurological differences between young people and adults, and what effect thosedifferences should have in sentencing young people.20 The Court of Appeal previouslyreviewed that research in Churchward v R.21 In Dickey v R, the Court acknowledgedthat there is no outer limit to the discount for youth, with discounts of 10–30 per centbeing common.22 It also considered that it was no longer correct to say that "youthcan carry little weight when balanced against the public interest in denunciation andaccountability".23 In that case, in respect of much more serious offending, discountswere awarded to appellants whose offending "reflected the poorly developedneurological capacity of adolescents".24[51] Mr Kerr was aged 24 at the time of the offending. He is therefore at the outerlimit of the age where a discount for youth is a possibility. Against that, however, isthat his offending reflects the poorly developed neurological capacity of adolescents.While his behaviour is to be condemned, I accept Mr George's submission that a smalland discrete discount for Mr Kerr's youth is available, notwithstanding its overlap withhis mental impairment. Mr Kerr remains at the rehabilitative threshold, should hecontinue to maintain his compliance with his medication. It is also important that hebe provided with opportunities to successfully reintegrate into the community.[52] In previous cases discounts have been awarded to defendants older thanMr Kerr. In R v Nepia, youth was a relevant factor in a discount was awarded for20 Dickey v R [2023] NZCA 2. See also Frost v R [2023] NZCA 294 at [99]–[109].21 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.22 Dickey, above n 20 at [174]; citing Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [98].23 At [177]; compare R v Rapira [2003] 3 NZLR 794 (CA) at [120].24 At [203(a)].personal circumstances to a defendant aged 25, on a charge of manslaughter.25 I notealso Woodstock v R, youth was a relevant factor in a discount was awarded for personalcircumstances to a defendant aged 23, on charges of aggravated robbery, burglary,unlawful possession of a firearm, and failing to carry out obligations in relation to acomputer search.26[53] Recognising the overlap between Mr Kerr's mental impairment and his youth,I am satisfied that a further discount of five per cent was available to him in thecircumstances.Conclusion – manifestly excessive[54] Ms Fiennes submitted that the sentence could not be considered manifestlyexcessive, because the Judge had accounted for Mr Kerr's mitigating factors in settingthe starting point. If that is in fact what occurred, it was an error by the District CourtJudge. In any event, the submission ignores the point that neither the starting pointnor the uplift for previous relevant convictions is challenged by Mr Kerr on appeal.[55] I have concluded that the Judge erred in failing to consider and implementdiscounts for mitigating factors that were plainly before the District Court. However,as noted by Ms Fiennes, the appeal may only be successful if the end sentence was outof range. Ultimately, I am of the view that in the circumstances, and by a fine margin,the end sentence was out of range, for the reason that the Judge did not properlyaccount for Mr Kerr's mitigating characteristics.[56] As submitted by Mr George, upon appeal, the weight of a sentence in terms ofits range against discounts must be assessed in a proportional manner. Havingconcluded that discounts of at least 25 per cent were available to Mr Kerr on thematerial before the District Court, I consider that the sentence was manifestlyexcessive. In the context of a sentence that was relatively short, 25 per cent isproportionally significant. It is for this reason I consider that Mr Kerr's appeal shouldbe allowed and a different sentence be imposed.25 R v Nepia [2019] NZHC 1932 at [36].26 Woodstock v R [2020] NZCA 472 at [31]–[34].[57] Taking the Judge's starting point of five months' imprisonment, and imposinga ten per cent uplift for previous convictions, leaves an adjusted starting point of fiveand a half month' imprisonment. From there, I discount 25 per cent for Mr Kerr'sguilty plea, and a further 25 per cent for the factors discussed above relating to hismental impairment, deprivation experienced in his background, and youth. Thatresults in a sentence of roughly two and three quarters months' imprisonment, whichI round to two and half months' imprisonment.[58] The new sentence of two and a half months' imprisonment is to be servedcumulatively upon Mr Kerr's current sentence, as held by the District Court Judge.The concurrent sentence of two months' imprisonment on the charge of resisting is toremain.Result[59] The appeal is allowed. The sentence of four months' imprisonment for theassault charge is quashed and replaced with a sentence of two and a half months'imprisonment, cumulative on the sentence which Mr Kerr is currently serving. Theconcurrent sentence of two months' imprisonment on the charge of resisting is toremain.Churchman JSolicitors:Crown Solicitor's Office, Christchurch for CrownR J T George, Christchurch for Appellant