The Supreme Court and Court of Appeal have, in recent decisions, explicitly recognised the impact of imprisonment of parents of young children; both on their children and on the prisoners’ own rehabilitative prospects.

The cases discussed here are:

Philip v R [2022] NZSC 149

Sweeney v R [2023] NZCA 417

Milne v R [2023] NZCA 491

C (CA153/2023) v Police [2024] NZCA 136

Ah Tong v R [2024] NZCA 144

Overview

Discounts of between six and 20 per cent for this factor can be found in the following decisions, although they tend to settle at about 10 per cent.

Discounts for the wellbeing of an offender’s children reflects s 8(h) and (i) of the Sentencing Act 2002 and gives effect to the United Nations Convention on the Rights of the Child and the United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders.

The effect on prisoner’s rehabilitative prospects, as distinct from the care and welfare of the children, is recognised in Sweeney (at [27]) and Ah Tong (at [15]).

Sweeney, drawing on the UK case of Petherick, cites with approval the passage that ‘it will be especially where the case stands on the cusp of custody that the balance is likely to be a fine one. In that kind of case the interference with the family life of one or more entirely innocent children can sometimes tip the scales and means that a custodial sentence otherwise proportionate may become disproportionate.’ Misconceptions that this factor only applies when a matter is on that cusp, and/or that some crimes are of too high a level of seriousness for the interests of the child to be considered, are corrected by the Court of Appeal in C v Police. Seriousness of offending not being a bar to consideration of this factor is also dealt with in Philip at [56].

It is not a given that consideration of the interests of the child or rehabilitative prospects of parents will tip the balance to home detention; see below: Sweeney, Milne and Ah Tong. But those cases all include explicit recognition that periods of imprisonment should be minimised to allow parents to be at home with their children sooner.

Case-by-case summaries follow:

Philip v R [2022] NZSC 149

In Philip, the Supreme Court upheld a discount of 10 per cent made by the High Court when sentencing Mr Philip for the impact his sentence would have on his young child, who had developed a secure attachment with his father. That discount was in addition to a 30 per cent discount for Mr Philip’s difficult background, drug addiction, mental health issues, remorse and clear motivation for rehabilitation, a 20 per cent discount for Mr Philip’s guilty plea and a discount for time spent on electronically-monitored bail.

The child’s mother had received a 20 per cent discount resulting in a sentence of home detention. The Court held that the provision for discounts for the wellbeing of an offender’s children reflects s 8(h) and (i) of the Sentencing Act 2002 and is supported by the United Nations Convention on the Rights of the Child. The Court also observed that it did not find it helpful to characterise such discounts as “rare”.

[50] The Court of Appeal in Campbell v R ([2020] NZCA 356 at [41]) stated that it was “uncontroversial” to say that the impact imprisonment has on the offender’s children is a relevant factor in considering the appellant’s personal circumstances. The Court also observed that the “weight to be accorded that factor depends on the circumstances. The relevant circumstances include the type of the offending and the circumstances of the child or children.”

[51] That approach is consistent with the earlier judgment of the Court of Appeal in R v Harlen. It is helpful to briefly refer to Harlen as this Court in R v Jarden cited the passage from Harlen set out below. To put the excerpt in context, the Court in Harlen was responding in part to another decision in which the Court of Appeal had indicated the importance of deterring offenders from thinking that a substantial prison sentence will not be imposed where they have young children and of discouraging the idea there might be an advantage in using women to undertake drug activities to avoid an appropriate sentence. In Harlen the Court said this: 

It is an error to read this passage as suggesting that New Zealand Courts do not take the welfare of affected children into account in the sentencing process. The family situation of a convicted person, including where applicable the wellbeing of an offender’s children, will always be among the personal circumstances to which regard is had by a sentencing Judge. … What however must be recognised is that the family situation of an offender, including the wellbeing of the offender’s children, is only one of a number of relevant factors. How much weight it can be accorded in any particular case depends on its circumstances. … 

[52] The provision for such discounts reflects both s 8(h) and (i) of the Sentencing Act. Section 8(h) requires the court to take into account circumstances of the offender that would mean an otherwise appropriate sentence “would, in the particular instance, be disproportionately severe”. Section 8(i) directs the court to consider various personal circumstances, namely, “the offender’s personal, family, whanau, community, and cultural background in imposing a sentence … with a partly or wholly rehabilitative purpose”. A sentencing approach which recognises the importance to a child of the familial relationship is also supported by the United Nations Convention on the Rights of the Child (Children’s Convention). The Children’s Convention emphasises the importance for children of growing up in a family environment and imposes an obligation on courts to treat the best interests of the child as a “primary consideration”.

[…]

[56] … We do not find it helpful to characterise such discounts as ‘rare’ or to emphasise, to the exclusion of other factors, whether the defendant is the primary caregiver or the seriousness of the offending. What is required is a consideration of all of the relevant circumstances which must include the child’s interests. Those interests include, as our reference to the Children’s Convention indicates, the importance for children of growing up in a familial environment. We accept that there may be other factors in this consideration take primacy including, by way of example, issues of inter-familial violence; an absence of remorse and/or lack of any rehabilitative steps, but those factors are not relevant here.

Sweeney v R [2023] NZCA 417 

Mr Sweeney, a 32-year-old solo parent to two young children was convicted of assault with intent to injure and assault with a weapon; acquitted of manslaughter at trial. His partner died in a car accident in February 2019, in which his then-infant son was also injured. Mr Sweeney assumed full-time responsibility for his son, now aged four, and daughter, now aged six.

The Court of Appeal held that ‘[w]e consider that the law, applied to Mr Sweeney’s circumstances, means that there should have been a discount to his sentence for the interests of his two young children, and their effect on his rehabilitative prospects. However, we are satisfied that the interests of the children in this case do not tip the balance far enough to make home detention the least restrictive sentence that is appropriate in the circumstances of this serious violent offending.’ (at [1])

His sentence of two years and two months’ imprisonment was reduced to one year and 11 months’ imprisonment.

[27] … like Mr Philip, Mr Sweeney is clearly an important presence in his young children’s lives. It is in their best interests to grow up in a familial environment. And the material before the Court indicates there is a close relationship between Mr Sweeney’s rehabilitation and his relationship with his children. He assumed full-time responsibility for his young children in 2019 and has focussed on parenting. Given the material before the Court, we do not require expert reports to come to the conclusion that the interests of the children, and their effect on the rehabilitative prospects of Mr Sweeney, indicate a discount is justified. We consider that the law as stated in Philip, applied to Mr Sweeney’s circumstances, means that there should have been a discount to his sentence of imprisonment. We would have allowed a discount of 10 per cent.

The Court of Appeal in Sweeney (at [34]-[35]) extensively quotes a Court of Appeal of England and Wales case, R v Petherick [2012] EWCA Crim 2214 at [20]-[24] cited with approval in Zhang v R [2022] NZCA 267 at [67] (footnotes omitted and emphasis added):

“ … a criminal court ought to be informed about the domestic circumstances of the defendant and where the family life of others, especially children, will be affected it will take it into consideration. It will ask whether the sentence contemplated is or is not a proportionate way of balancing such effect with the legitimate aims that sentencing must serve. …

… [I]n a criminal sentencing exercise the legitimate aims of sentencing which have to be balanced against the effect of a sentence often inevitably has on the family life of others, include the need of society to punish serious crime, the interest of victims that punishment should constitute just desserts, the needs of society for appropriate deterrence … and the requirement that there ought not to be unjustified disparity between different defendants convicted of similar crimes. … It also needs to be remembered that just as a sentence may affect the family life of the defendant and of his/her innocent family, so the crime will very often have involved the infringement of other people’s family life. … This present case is also one in which … rights are affected not only in the defendant and her child but in the deceased and his family.

… [I]t will be especially where the case stands on the cusp of custody that the balance is likely to be a fine one. In that kind of case the interference with the family life of one or more entirely innocent children can sometimes tip the scales and means that a custodial sentence otherwise proportionate may become disproportionate.

… [T]he likelihood, however, of the interference with family life which is inherent in a sentence of imprisonment being disproportionate is inevitably progressively reduced as the offence is the graver … .

… [I]n a case where custody cannot proportionately be avoided, the effect on children or other family members might [emphasis in original] afford grounds for mitigating the length of sentence, but it may not do so. If it does, it is quite clear that there can be no standard or normative adjustment or conventional reduction by way of percentage or otherwise. It is a factor which is infinitely variable in nature and must be trusted to the judgment of experienced judges.”

[35] But the Court in Zhang identified a number of difficulties with giving further recognition to the impact of Ms Zhang’s imprisonment on her children. They included that:

(a) the Court received no evidence that the baby was being adversely affected by the present circumstances;

(b) her case did not stand on the cusp of custody because even with a further five per cent discount, home detention would not be even particularly close to being an option; and

(c) overall, the discounts for personal factors were generous.

The Court’s reasons for not granting home detention are discussed at [39]-[40]. This case was on the cusp of custody (as in Petherick) but is ‘by a fine but appreciable margin tilted in favour of imprisonment’ given the level of violence: ‘Mr Sweeney punched Mr Bell’s head, kicked his head, stomped his head, and hit Mr Tumai in the back with a hammer. This behaviour warrants the accountability, denunciation, deterrence, and protection of the community that is afforded by imprisonment. Given the nature of the offending, it is only the interests of Mr Sweeney’s children that make home detention a question.’ ([40])

Milne v R [2023] NZCA 491

Successful appeal by Mr Milne against a sentence of four years one month imprisonment for wounding with intent to cause grievous bodily harm. The offending occurred at a house party. The victim was intoxicated and agitated; Milne became frustrated and angry at the victim’s behaviour. Milne attacked the victim, causing him to lose consciousness, then continued to attack the victim while he was defenceless. He was accorded six per cent discount for the impact of imprisonment on his two young children.

[56] Unlike the situation in Philip, there is no prospect of Mr Milne being released from prison if an additional discount is made to take account of the impact of his imprisonment on his two young children (his son with his current partner and his daughter with his former partner). While circumstances have prevented Mr Milne from developing an attachment with his young children, we consider the loss of the opportunity for them to form such attachments is itself a significant factor. This is particularly so where there is ample evidence to establish not only that Mr Milne has been a good father to his other sons but that he is a significant father figure to many others. There is also evidence from both mothers that they very much want Mr Milne to be involved in the early lives of their young children.

[57] In these circumstances, we are satisfied that it would be strongly in the interests of Mr Milne’s young children that they should be able to have their father present in their lives as soon as possible. For these reasons, we consider that a further discount of four months or approximately six per cent should be made to Mr Milne’s sentence.

C (CA153/2023) v Police [2024] NZCA 136

The appellant was found guilty and sentenced to two years and seven months’ imprisonment following a judge-alone trial on two charges of neglect of a vulnerable adult. Her sentence was reduced to two years and four months’ imprisonment on appeal to the High Court. She was granted leave for a second appeal, on the basis that it was seriously arguable that the High Court did not give adequate consideration to the interests of the appellant’s son when sentencing her. A discrete discount of 15 per cent was applied by the Court of Appeal quashing a 28-month sentence and reducing it to 22 months which brought the sentence to time-served so commutation to home detention was not considered.

A question on appeal was whether the High Court judge erred by treating the interests of the child as relevant only where a case is ‘on the cusp of custody’ (per Zhang following Petherick). Detailed discussion of international conventions at [25]-[36] United Nations Convention on the Rights of the Child and the United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (the ‘Bangkok Rules’) rule 64 says:

“Non-custodial sentences for pregnant women and women with dependent children shall be preferred where possible and appropriate, with custodial sentences being considered when the offence is serious or violent or the woman represents a continuing danger, and after taking into account the best interests of the child or children, while ensuring that appropriate provision has been made for the care of such children.”

[60] In respect of the questions posed, we answer as follows:

“(a) Did the Judge err by treating the interests of the child as relevant only where a case is on the cusp of custody? Yes.

(b) Was a sentence of two years and four months’ imprisonment sufficiently close to the two year threshold for home detention to require particular attention to the impact of a custodial sentence on the family life of an innocent child? Attention to the impact of a custodial sentence on the family life of an innocent child is required in all cases.

(c) Did the High Court err by proceeding on the basis that this was such serious offending on the part of the appellant that there was little scope, if any, to consider the interests of her son? Yes.”

Ah Tong v R [2024] NZCA 144

Mr Peter Ah Tong pleaded guilty to, and was convicted of, importing methamphetamine, possession of MDMA for supply, and possession of dimethylpentylone. He was sentenced to seven years’ imprisonment by Judge T J Gilbert, in the District Court at Christchurch.

The Court of Appeal considered the impact of his sentence of imprisonment on his 11-year-old daughter, as well as his own rehabilitative prospects being improved by him taking an active parental role, and applied a discrete discount of 10 per cent.

[14] There were factors that suggested that there were implications for Mr Ah Tong’s daughter that the Court needed to address. In particular:

(a) The daughter’s mother was already imprisoned, and serving a lengthy sentence. Following her imprisonment in 2016, Mr Ah Tong had been his daughter’s sole caregiver, and his own imprisonment accordingly had significant adverse implications for her.

(b) The child was 11 years old, which we consider to be at an age at which parental support and guidance is of particular significance, arguably more so than for much younger children. In her statement provided to the Court, the daughter said she was not coping well at school and that she had started seeing a counsellor about her feelings concerning her father not being present to support her.

(c) The daughter is now in the care of Mr Ah Tong’s partner. While his daughter knew Mr Ah Tong’s partner, we do not understand that they had lived in the same household other than temporarily. Mr Ah Tong’s partner had also provided an affidavit at sentencing saying that her mental health had deteriorated significantly since Mr Ah Tong’s imprisonment and that she had had to take over day-to-day care of Mr Ah Tong’s daughter. It is apparent that this was effectively a forced foster parent arrangement that had significant implications.

[15] … Whilst some separation is unavoidable given the nature of Mr Ah Tong’s offending, it should be minimised given the implications for the child. We also consider that Mr Ah Tong’s rehabilitation prospects are best enhanced by him sustaining his parental role to the extent practicable.