Niklas Gebhardt was sentenced in 2022. Photo: George Heard / NZ Herald
A Rangiora father who drove off the road, killing his six-year-old son in a fiery car crash says his actions were not deliberate and has successfully appealed his sentence.
Niklas Gebhardt pled guilty to manslaughter and was sentenced in 2022 to five years in prison and disqualified from driving for seven years upon his release - for the crash in which his son Lachlan, died.
Gebhardt, who shared custody of his son with his ex-partner, had picked Lachlan up from a public swimming pool in Rangiora in November 2019.
He was driving north on a rural road with a speed limit of 80 km/h when he overtook another vehicle and accelerated up to 130 km/h through a corner and over a stop bank, which caused his car to become airborne, hit a tree, spin out and catch fire.
Gebhardt was extracted from the car by a member of the public but Lachlan remained inside and died at the scene.
Once out of the vehicle, Gebhardt was heard to say; "my son's in the back, he's such a good boy, he's such a nice boy, I want to swap" and "I need a bullet".
Gebhardt sustained a fractured femur, facial injuries and burns to approximately 30 percent of his body. He spent 10 days in a drug-induced coma and a total of six weeks in hospital.
At appeal, Gebhardt's lawyer Genevive Vear claimed the sentence and disqualification period were "manifestly excessive" as his culpability had been overstated and his lack of his intoxication mistakenly characterised as an aggravating factor instead of a neutral one.
Vear also claimed Gebhardt had received insufficient discount for his physical and psychological injuries and remorse.
The appeal was filed more than 14 months late, and Vear said that was due to his grief and shock over the sentencing judge's finding that Gebhardt had acted deliberately in killing his son which prevented him from progressing an appeal in a timely manner.
"At the time of sentencing Mr Gebhardt was suffering extreme grief and guilt for his role in his son's death and was shocked to hear the judge characterise his conduct as deliberate, targeted and calculated."
At sentencing, Justice Jan-Marie Doogue said there was no external explanation for the crash, Gebhardt was unimpaired, his vehicle had no mechanical issues and he knew the road well. He had made no attempt to slow down, brake or take evasive action and his "high level of recklessness" was a significant aggravating factor.
While murderous intent could not be proven, his actions were deemed to be "grossly reckless and highly likely to cause significant physical trauma" to him and Lachlan, or "even the death of both or one of them", Justice Doogue said.
Vear said the court had been wrong to equate the absence of an alternative explanation for Gebhardt not turning or braking his vehicle with evidence he had done so deliberately.
It had placed an onus on him to explain the crash - but he was unable to as a result of a his traumatic brain injury.
While it was the Crown's view that any suggestion of an alternative explanation for his actions was not plausible and it agreed the inference could be made that Gebhardt had deliberately crashed his car.
An initial charge of murder was withdrawn and replaced with a charge of manslaughter, after a statement from Gebhardt's that he had deliberately tried to kill his son using his vehicle, was deemed inadmissable and unreliable because of his complicated grief and other factors.
The Court of Appeal said in light of this, there was no explanation of why Gebhardt would have wanted to deliberately crash his vehicle or intentionally harm himself or his son.
It found the 10 percent discount for personal factors was appropriate but it noted Gebhardt's end sentence had been miscalculated.
Justice Doogue had considered a discount of 35 percent be deducted from a starting point of seven years' and six months' imprisonment, but an end sentence of five years' imprisonment was imposed, which was a 33 percent discount. The sentence would have been two months shorter if the 35 percent discount was applied.
The Court of Appeal also found the length of disqualification was unjustified as Gebhardt had no recollection of the incident so was unlikely to gain insight into it, but the severe grief as a result of his actions would continue for the rest of this life.
"We consider it is unlikely that Mr Gebhardt will drive in that manner again, particularly when he has no previous record of dangerous driving."
As a result, Gebhardt's sentence was reduced by nine months to four years and three months, and he was disqualified from driving from 18 months.
