Crown Law has been asked to consider appealing the sentence handed down to a young man who was jailed for a vicious road-rage attack against a Chinese-New Zealand family.
Prosecutors argued at Fraser Milne's sentencing last Friday that his onslaught on the family, including their two children aged 12 and 10, was "racially motivated".
But Justice Sally Fitzgerald disagreed and said it "would be quite wrong" for the 21-year-old's offending to be described as a "hate crime".
After a 20 per cent discount for his guilty plea, a 20 per cent reduction for youth and 10 per cent for Milne's perceived remorse and reparation offer of $10,000, the judge reached a total end sentence of two years and six months' imprisonment.
He will also be disqualified from driving for a year after his release from prison.
A Crown Law spokeswoman confirmed the Crown solicitor today asked them to consider an appeal of Milne's sentence.
Milne had admitted charges of dangerous driving, injuring with intent to cause grievous bodily harm and four charges of injuring with reckless disregard for safety.
But he had initially been charged with attempted murder and threatening to kill before the Crown withdrew those charges as the case approached the June trial.
In March last year Milne attacked the family after they enjoyed a day out picking blueberries on the Awhitu Peninsula near Auckland.
Milne was driving over a hill and passed the family's car but crashed into a ditch and fence after being forced to swerve and avoid a collision.
It led to a high-speed chase, attack and racist tirade against the family.
It ended with the two children being violently thrown from the car when Milne rammed their vehicle. The son suffered a fracture to his skull.
All five victims in the family's car were hospitalised and remain traumatised by the attack, the court heard at Milne's sentencing.
"We tried so hard to get away from you. I am scared you will come to attack us again," the mum said in a statement.
When considering if Milne's offending was a hate crime, Justice Fitzgerald referred to several earlier cases.
"In all of the cases in which it has been accepted offending was motivated by hatred to a group in society with particular characteristics, the defendant has actively singled out their victim for that reason and offended against them," she said in her sentencing judgment.
"For example, bombing a Sikh temple; manslaughter of a victim because they were transgender; singling out and offending against a victim because of their sexual orientation; singling out and offending against a victim because of their race.
"In other words, the offending has only come about because of the victim's characteristics."
After the initial confrontation, where Milne demanded money for the damage to his car and threatened the family with his blue-nosed pitbull dog, the family was able to flee.
Milne, meanwhile, drove to a nearby group of shops.
But while there he spouted a racist diatribe.
He said Asians were "taking over the country" and "f**king Asians" had damaged his car, court documents provided to the Herald read.
Milne also made a racist remark about the shape of the family's eyes and said they had run away because he would get "the pieces of sh*t" deported.
After seeing the family's car drive past the shops Milne re-engaged and chased the family, reaching speeds of 140km/h.
Milne deliberately rammed their car, causing it to spin out of control.
The two children were also thrown from their car in the crash and landed on the road, narrowly avoiding a steep 100m deep ravine.
Milne then approached the car to continue his verbal barrage.
"Get out of the f**king car, I'm going to smash you! You f**king Asian c***! F**king Asians!" Milne yelled.
After his arrest, Milne continued to make racial slurs.
He told police he presumed the family were on an "illegal visa" and "Asian mafia" who had spent "two days in the country".
Milne also told police he was "at boiling point" when he saw the family drive past him at the shops and that "any Asian in general [he] wanted to hurt".
He also admitted he "felt like killing" the father of the family and wanted to "grab his neck and strangle him".
Crown prosecutor Jasper Rhodes argued the attack was "not simply a case of road rage".
He said Milne's racial remarks showed what was "essential to his beliefs".
But when considering the case Justice Fitzgerald said: "There is nothing in the summary of facts which indicates the underlying and predominant cause of [Milne's] offending was racial hatred.
"The summary of facts does not suggest [Milne was] aware of the victims' ethnicity when [he] flew into an uncontrolled rage and decided to chase the other car," the judge added.
"I accept that during the latter parts of your offending and in your police interview, you made several appalling comments concerning the victims' ethnicity. Please be assured that I am not downplaying the inappropriateness of these comments in any way. They were abhorrent."
Justice Fitzgerald said: "I must stand back and consider whether the offending itself was racially motivated in the manner and to the extent the Crown suggests. For the reasons I have given, I do not."
Milne's mother had also said in a letter to the court that her son has always been respectful to other ethnicities and religions.