Ahokava v Police
[2024] NZHC 3946
•19 December 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-541
[2024] NZHC 3946
BETWEEN MICAH AHOKAVA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 10 December 2024 Appearances:
N N Mani for appellant
E H K Rangamuwa for respondent
Judgment:
19 December 2024
JUDGMENT OF JOHNSTONE J
(appeal against sentence)
This judgment was delivered by me on 19 December 2024 at 4 pm
Registrar/Deputy Registrar
Solicitors: MC, Auckland
AHOKAVA v POLICE [2024] NZHC 3946 [19 December 2024]
[1] Micah Ahokava was sentenced in the District Court at Auckland to serve 37 months’ imprisonment.1 He appeals against that sentence, saying it is manifestly excessive.
[2] I must allow the appeal if satisfied that for any reason there is an error in the sentence imposed and a different sentence should be imposed.2 The focus is on the overall end sentence rather than the process by which it was reached. I should not intervene if the sentence is within range and can be justified by accepted sentencing principles.3
Mr Ahokava’s offending
[3] Mr Ahokava’s offending commenced around two months after he was sentenced, on 28 June 2023, to undertake a year of intensive supervision. It is set out, first in detail and then by way of summary, below.
Failing to report for community work — 30 August 2023
[4] On 30 August 2023, Mr Ahokava failed to report to his probation officer as required by a prior sentence of community work on 13 December 2022.4 He was charged by way of summons issued in the District Court at Auckland on 18 September 2023.
Burglary — 29 September 2023
[5] On 26 September 2023, Mr Ahokava’s mother travelled to Australia, leaving her Suzuki Swift secure in her garage and permitting only her daughter to use it. On 29 September 2023, Mr Ahokava burgled his mother’s home, forcing open a window to gain access, taking the Swift’s keys from her bedroom, and driving off.5 Six days later, upon his mother returning home to find the Swift missing, she reported the burglary to police. Mr Ahokava was later charged in the District Court at Manukau, but not until 29 February 2024 (see [19] below).
1 New Zealand Police v Ahokava [2024] NZDC 22739.
2 Criminal Procedure Act 2011, s 250.
3 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [36].
4 Sentencing Act 2002, s 71(1)(a).
5 Crimes Act 1961, s 231(1)(a). Maximum penalty: 10 years’ imprisonment.
October 2023 offending
[6] On 2 October 2023, Mr Ahakova stole petrol valued at $92.17 from a petrol station in Hamilton.6 Again, he was not charged until 29 February 2024.
[7] On 13 October 2023, Mr Ahokava stole grocery items valued at $576.20 from a supermarket in Botany.7 He was charged by way of summons issued in the Manukau District Court on 4 November 2023.
[8] On 17 October 2023, Mr Ahokava stole petrol valued at $79.99 from a petrol station in Mount Wellington.8 Again, he was not charged until 29 February 2024.
[9] On 18 October 2023, Mr Ahokava having failed to appear in answer to the summons served on him for failing to report, a warrant was issued for his arrest.
[10] On 31 October 2023, Mr Ahokava stole grocery items valued at $958 from a supermarket in Mount Wellington.9 He and a co-offender loaded a trolley with the items and left with them. Police then stopped them outside. Mr Ahokava was arrested in accordance with the above warrant. But Mr Ahokava escaped that lawful custody,10 running off before being arrested again about 500 metres away.
[11] On 1 November 2023, Mr Ahokava appeared on the charges deriving from 30 August and 31 October 2023, and was remanded on bail to appear in court again on 15 November 2023.
November 2023 offending
[12] By 5 November 2023, Mr Ahokava had received a Toyota Aqua which had been stolen in late October 2023.11 The Aqua had a front quarter light smashed and its ignition barrel removed. At around 9 am that morning, Mr Ahokava drove to and parked the Aqua at the Sylvia Park shopping mall. Police were inspecting the Aqua
6 Sections 219 and 223(d). Maximum penalty: three months’ imprisonment.
7 Sections 219 and 223(c). Maximum penalty: one year imprisonment.
8 Sections 219 and 223(d). Maximum penalty: three months’ imprisonment.
9 Sections 219 and 223(c). Maximum penalty: one year imprisonment.
10 Section 120(c). Maximum penalty: five years’ imprisonment.
11 Sections 246 and 247(a). Maximum penalty: seven years’ imprisonment.
when Mr Ahokava returned from one of the shops. He started to walk away but was arrested and searched. The search revealed various items Mr Ahokava had just stolen from one of the shops: three portable charging banks, a charging cable, and a wireless charging pad which he was carrying in a black backpack, and two pairs of shorts that he was wearing under his own.12 Mr Ahokava was summonsed, to appear on these charges of receiving and theft on 10 November 2023.
[13] On 6 November 2023, Mr Ahokava was inducted into the sentence of intensive supervision described at [3]. He signed forms confirming he understood he was to report to a probation officer every Tuesday. He appears to have reported on 14 November 2023, but not thereafter.
[14] On 15 November 2023, Mr Ahokava failed to appear in the District Court at Auckland, as required by the terms of bail described at [11].13 He further failed to appear on 22 November 2023 and a further warrant for his arrest was issued.
Failing to report for intensive supervision — 12 December 2023
[15] On 12 December 2023, Mr Ahokava failed to report as required by his intensive supervision sentence.14 He was not charged until a summons was issued in the Auckland District Court on 20 March 2024.
February 2024 offending
[16] On 7 February 2024, Mr Ahokava appeared in the District Court at Auckland. Despite twice in this sequence having had warrants issued for failing to appear, the first warrant resulting in his arrest while found committing other offences, Mr Ahokava was readmitted to bail, on the condition that he appear again on 26 February 2024.
[17] By 26 February 2024, Mr Ahokava had undertaken another three instances of theft (for which he was not charged until 11 May 2024 — see [27]):
12 Sections 219 and 223(d). Maximum penalty: three months’ imprisonment.
13 Bail Act 2000, s 38(a). Maximum penalty: one year imprisonment, or $2,000 fine.
14 Sentencing Act, s 70A(a). Maximum penalty: six months’ imprisonment, or $1,500 fine.
(a)on 14 February, stealing seven items of clothing and shoes valued at
$619.93 from a sporting goods chain store in Panmure;15
(b)on 21 February, stealing five items of clothing and shoes valued at
$629.94 from the same chain, but in Botany (security staff recovered the five items of clothing that Mr Ahokava had put into a bag, but not the shoes which were otherwise concealed); 16 and
(c)also on 21 February, stealing two items of clothing from the same chain in Manukau.
On this last occasion, security staff again stopped Mr Ahokava as he left, and they recovered the two items stolen from the Manukau store. Relying on intelligence reporting, they also momentarily recovered the shoes stolen that day from the Botany store, but Mr Ahokava forcibly took them back and left.
[18] On 26 February 2024, Mr Ahokava failed to appear in court, as required by the terms of bail described at [16].17 A warrant for his arrest was issued.
[19] On 29 February 2024, Mr Ahokava was arrested and charged in the District Court at Manukau with the burglary of his mother’s home, and the petrol thefts described at [6] and [8]. He was granted bail, on the condition that he appear again in that Court on 21 March 2024. And a nightly curfew was added.
March 2024 offending
[20] By 13 March 2024, Mr Ahokava had undertaken another two instances of theft (for which he was not charged until 11 May 2024 — see [27]):
(a)on 2 March, stealing three items from the same chain store in Panmure; and
15 Crimes Act, ss 219 and 223(d). Maximum penalty: three months’ imprisonment.
16 Crimes Act, ss 219 and 223(d). Maximum penalty: three months’ imprisonment.
17 Bail Act, s 38(a). Maximum penalty: one year imprisonment, or $2,000 fine.
(b)on 6 March, stealing a pair of shoes from the same chain store in Panmure.
[21] As Mr Ahokava left the store on 2 March 2024, he was confronted by security staff, but returned only the stolen pair of shoes he was wearing, not the two items of clothing he had in a bag.
[22] On 13 March 2024, Mr Ahokava appeared in the District Court at Auckland, having breached the nightly curfew described at [19]. He was readmitted to bail with a warning, to appear again at 2.15 pm on 18 March 2024.
[23] On 18 March 2024, Mr Ahokava travelled to central Auckland. It appears Mr Ahokava’s journey presented an opportunity for further offending (for which he was not charged until 11 May 2024 — see [27]):
(a)At around 11.45 am, Mr Ahokava stole a pair of shoes valued at
$259.99 from the central Auckland store of the same chain. 18
(b)During the afternoon, he appeared in the District Court at Auckland and was remanded on bail to appear again on 26 June 2024.
(c)At around 5 pm, he entered the Panmure store of the same chain, carrying a black and white shopping bag, which I infer bore the chain’s black and white logo. He stole two pairs of shoes valued at $359.98, placing them in the bag and leaving without paying.19
[24] On 19 March 2024, Mr Ahokava stole a grooming kit valued at $49.49 from a pharmacy chain store in Saint Lukes,20 and an item of clothing and a pair of shoes valued at $349.98 from the above sporting goods chain store in Morningside. 21 Again, he was not charged with this offending until 11 May 2024 (see [27]).
18 Crimes Act, ss 219 and 223(d). Maximum penalty: three months’ imprisonment.
19 Sections 219 and 223(d). Maximum penalty: three months’ imprisonment.
20 Sections 219 and 223(d). Maximum penalty: three months’ imprisonment.
21 Sections 219 and 223(d). Maximum penalty: three months’ imprisonment.
[25] On 21 March 2024, Mr Ahokava was arrested having breached the terms of his bail described at [22]. He appeared in the District Court at Auckland, and was remanded in custody. On 27 March 2024, he appeared again and was granted bail on the same terms he had previously failed to meet, to appear on 13 June 2024.
April 2024 offending
[26]Mr Ahokava continued to steal goods:
(a)on 11 April 2024, five items of clothing from a home goods chain store in Botany; 22
(b)on 12 April 2024, five items of clothing from that same store, with mall security recovering three items of clothing and Mr Ahokava retaining two items valued at $115.98;23
(c)on 13 April 2024, another pair of shoes from the sporting goods chain in Panmure;24
(d)on 14 April 2024, an item of clothing from the same home goods chain in Newmarket;25
(e)on 16 April 2024, a tester bottle of perfume from the same pharmacy chain in Sylvia Park;26 and
(f)on 28 April 2024, three items of clothing from the same sporting goods chain in Panmure.27
[27] On 11 May 2024, the police filed charges for each of the 15 thefts described at [17], [20], [23], [24] and [26], and Mr Ahokava appeared in the District Court at Auckland. I infer he had been arrested on that or the previous day.
22 Sections 219 and 223(d). Maximum penalty: three months’ imprisonment.
23 Sections 219 and 223(d). Maximum penalty: three months’ imprisonment.
24 Sections 219 and 223(d). Maximum penalty: three months’ imprisonment.
25 Section 219 and 223(d). Maximum penalty: three months’ imprisonment.
26 Section 219 and 223(d). Maximum penalty: three months’ imprisonment.
27 Section 219 and 223(d). Maximum penalty: three months’ imprisonment.
The remaining course of the District Court proceedings
[28]On 13 May 2024, Mr Ahokava applied, unsuccessfully, for bail.
[29] On 21 June 2024, Mr Ahokava was brought before the District Court at Manukau. He pleaded guilty to the charges filed in that Court, and was remanded in custody to appear in the District Court at Auckland on 26 June 2024. On that occasion, he pleaded guilty to and was convicted of all of the other offences described above, except the breach of bail charge relating to Mr Ahokava’s failure to appear described at [18].
[30] He applied for electronically monitored bail, but his application was adjourned so that his counsel could take further instructions in respect of the proposed EM address.
[31] On 19 July 2024, he renewed his application for EM bail, but again the application was adjourned, this time so his evidence of educational enrolment could be checked. On 22 July 2024, he withdrew his EM bail application.
[32] He remained in custody until he was sentenced, on 17 September 2024, to the sentence of 37 months’ imprisonment that he now appeals.
Summary of offending
[33] In summary, Mr Ahokava failed to report for community work, burgled his mother’s home stealing her Suzuki Swift, and stole petrol and a valuable quantity of groceries in three separate incidents in October 2023. An arrest warrant was issued for his failure to attend court when summonsed, and it was executed when he was apprehended at the end of October 2023 having stolen another valuable quantity of groceries, before briefly escaping.
[34] On 1 November 2023, Mr Ahokava was bailed on the failure to report, the escaping and the most recent theft. But within days he had received the stolen Toyota Aqua and been arrested when using it while undertaking another retail theft.
[35] By the end of 2023, he had failed to appear in court, and to attend his sentence of intensive supervision. Another arrest warrant was issued. He was arrested in February 2024 and re-bailed. He then undertook three retail thefts before failing to appear on 26 February 2024.
[36] Three days later, he was arrested and charged in a different court with the burglary and the mid-October 2023 thefts. And again he was re-bailed.
[37] He committed two retail thefts in early March 2024, before being arrested for breach of bail. He was re-bailed.
[38] He committed four retail thefts in late March 2024, before being arrested for breach of bail. He was re-bailed.
[39] He committed six retail thefts in April 2024, before he was arrested and charged in May 2024 with the 12 thefts he had committed in March and April 2024.
[40] In all, Mr Ahokava committed a burglary, an offence of receiving, 20 separate retail thefts totalling $6,398.44 in value (of which only $2,292.93 worth of property was recovered), and offences of failing to report for community work, and failing to report for intensive supervision. The burglary and four of the thefts were committed while Mr Ahokava was subject to sentences of community work and intensive supervision. The other 16 thefts were committed while Mr Ahokava was subject to those sentences and was on bail.
The Judge’s approach
[41] The sentencing Judge identified the burglary of Mr Ahokava’s mother’s home as the offence most appropriately the subject of a lead sentence. He assigned a starting point of 18 months’ imprisonment. The Judge then assigned starting points of eight months’ imprisonment for receiving the Toyota, 12 months for all of the thefts grouped together, and three months for escaping.
[42] Observing (incorrectly) that those starting points together came to 43 months, the Judge applied a seven-month reduction to account for the totality principle,
bringing the notional sentence for the various episodes of offending combined to three years’ imprisonment.
[43] The Judge then adjusted that sentence upwards: by two months to take account of it featuring offending while subject to a sentence; by three months for it featuring offending while on bail; and by three months to recognise Mr Ahokava’s previous convictions.
[44] The Judge then applied a reduction of 15 per cent to account for Mr Ahokava’s guilty pleas, arriving at a final overall sentence of 37 months’ imprisonment. That sentence was imposed concurrently on the burglary and receiving charges, with lesser sentences (also concurrently) imposed for the other offending.
Mr Ahokava’s position
[45] For Mr Ahokava, his counsel, Nicholas Mani, does not challenge the 18-month starting point adopted for the burglary. But Mr Mani submits that:
(a)The uplifts for the balance of the offending were excessive.
(b)The other uplifts were excessive.
(c)The guilty plea reduction was insufficient.
(d)There should have been further reductions, to account for remorse and/or the way addiction informed Mr Ahokava’s offending.
(e)An electronically monitored sentence should have been considered.
The position of New Zealand Police
[46] For the police, Ms Rangamuwa submits to the contrary, on each point. In respect of Mr Ahokava’s addiction, she submits that the Judge referred specifically to the possibility of drug issues, and appears to have dealt with that aspect when observing that Mr Ahokava has previously failed to respond to rehabilitative sentencing.
Analysis
Uplifts for balance of offending
[47] Mr Mani’s submission, that the uplifts for the balance of Mr Ahokava’s offending were excessive, focusses upon the value of the property stolen, which appears modest in comparison with that of the offending the subject of three of the High Court decisions he relies upon.28
[48] But the number of discrete incidents of theft engaged in by Mr Ahokava is greater. And the composition of the overall sentencing in those comparator cases, and in the other case of theft that Mr Mani mentions,29 was necessarily affected by the fact they each involved other forms of offending.
[49] In my view, the comparator cases do not disclose cause for concern that a sentence of 12 months’ imprisonment, responding to a series of 20 discrete episodes of retail theft of goods valued together at $6,398.44, committed over a period of just under seven months, might breach the principle in favour of consistency in sentencing.
[50] Given its regularity, it can be inferred that the offending was calculated. Its brazen nature gave rise to a risk of confrontation with shop workers and the public. The sentencing principle of denunciation required a firm response.
[51] Similarly, the uplift of eight months’ imprisonment for receiving the Toyota Aqua compares adequately with the sentence of nine months’ imprisonment imposed upon the receiving of around $15,000 worth of jewellery in Pahi v New Zealand Police,30 another case upon which Mr Mani relies, and the starting points for receiving vehicles in Whittaker v New Zealand Police31 and Tamatea v New Zealand Police.32
28 Archer v Police [2024] NZHC 1968; Ross v New Zealand Police [2022] NZHC 2527; and Bimler v New Zealand Police [2023] NZHC 2661.
29 Andrews v R [2018] NZHC 3216.
30 Pahi v New Zealand Police [2018] NZHC 2629.
31 Whittaker v New Zealand Police [2017] NZHC 2747 where a starting point of eight months’ imprisonment was imposed on appeal.
32 Tamatea v New Zealand Police [2024] NZHC 2635 where starting points of 15 months’ imprisonment were upheld on appeal for each of the two receiving charges.
[52] Overall, I do not consider the Judge’s adjusted starting point of three years’ imprisonment for the entire sequence of offending, putting aside its quality as offending while on sentence and (mostly) on bail, to be excessive.
Uplifts for offending on sentence, on bail, and for previous convictions
[53] The uplifts imposed for the fact that all of Mr Ahokava’s offending occurred while he was on sentence for previous offending, and because much of it occurred while he was on bail, can be characterised as uplifts reflecting his disregard for court processes and orders.33 His individual blameworthiness increases, in relative terms, accordingly.
[54] In this case, an uplift for offending while subject to a sentence and on bail, substantially in excess of the Judge’s five month uplift, could appropriately have been imposed. On each of the six occasions on which Mr Ahokava was brought before the District Court and re-bailed, he abused the faith the Court had placed in him by continuing to offend.
[55] The fact of Mr Ahokava’s previous offending should similarly have been characterised as a matter justifying uplift for his personal circumstances. The number, seriousness, date, relevance, and nature of an offender’s previous convictions may aggravate their offending, as a factor distinct to the quality of the offending itself.34
[56] At his current age of 32, Mr Ahokava’s criminal history discloses a background of civil compliance difficulty. He committed a number of robberies as a youth, which I put largely to one side. Becoming an adult, he committed a number of low level driving-related offences, and there was an instance of cannabis possession. In 2017, at the age of 25, he commenced engaging in a series of burglaries, bail-related, and more serious driving-related offences, before being imprisoned in 2020 for possessing methamphetamine intending to supply it to others. Mr Ahokava’s history suggests that offending in 2018 qualified him for sentencing within the Alcohol and Other Drug Treatment Court, but that he was exited from that programme at the point of being
33 Sentencing Act 2002, s 9(2)(c) and Clunie v R [2013] NZCA 110.
34 Section 9(1)(j).
sentenced, because he had committed the methamphetamine-related charge (which was too serious to be accommodated) while on bail for the 2018 offending. Upon his release from prison, he engaged in 2022 and 2023 in a series of four low-value thefts, and two instances of sentence-related non-compliance offending.
[57] In light of this, I consider the uplift of three months’ imprisonment, to acknowledge the increased relevance in Mr Ahokava’s case of the sentencing purposes of promoting in him a sense of responsibility35 and of community protection,36 to have been well justified.
[58] I observe, as mentioned above, that these uplifts should have been added to the starting point of three years after the reductions for mitigating circumstances, in order to properly reflect their position in the second stage of sentencing.37 The reason for that being to avoid, as in this case, a defendant “illegitimately obtain[ing] a benefit by [the] uplift being reduced by the application of a discount to it”.38 As will be apparent from my conclusion below, I take this approach to the uplifts in my calculation of the end sentence to be imposed.
Guilty plea reduction
[59] I see no error in the Judge’s finding that a global 15 per cent reduction for Mr Ahokava’s guilty pleas was appropriate.
[60] Mr Ahokava was charged with failing to report for his community work sentence, and the late October 2023 episode of retail theft and escaping by the end of that month. But he failed to attend court when required in November 2023, and then having been re-bailed in early February 2024, he failed to attend court until late that month. His guilty pleas to all charges were not entered until June 2024. In at least most cases, the nature of his offending disclosed compelling evidence of his guilt.
35 Section 7(1)(b).
36 Section 7(1)(g).
37 See Moses v R [2020] NZCA 296; [2020] 3 NZLR 583 at [47]; Mo’unga v R [2023] NZHC 1967
at [28]–[36]; and Moses v R [2024] NZCA 121 at n 42.
38 Mo’unga v R at [36].
[61] Overall, the contribution made by Mr Ahokava’s guilty pleas to the efficient disposal of the proceedings he faced was significant, but far from compelling.
Remorse and addiction
[62] Mr Ahokava wrote a letter, dated 1 June 2024, which was attached to the written submissions offered in the District Court. It is this letter upon which Mr Mani based his submission that the Judge should have applied a further reduction, beyond that for Mr Ahokava’s guilty plea, to account for remorse.
[63] I do not consider any additional reduction was required. As it states, Mr Ahokava’s letter was written around three weeks after the cycle of him being arrested, re-bailed, committing offences, and again being arrested, was broken. It refers to Mr Ahokava being sorry for the impact of his offending, and taking full responsibility. But when considered in the context of the seven-month course of offending described above, it does not set out any basis upon which Mr Ahokava’s assertions might be construed as authentic. Notably, it goes on to describe how in the four months prior to his letter, Mr Ahokava had reunited with his partner and was displaying “positive changes”. That four-month period, from February to May 2024, was one in which much of the offending had occurred.
[64] Similarly, the handwritten “relapse prevention plan” attached with the “remorse” letter appears to be transcribed from generic material, transparently for the purpose of accruing an undeserved reduction. It requires to be ignored.
[65] On the other hand, I accept Mr Mani’s submission that the role of Mr Ahokava’s drug addiction required specific consideration. The Court of Appeal in Zhang v R observed that addiction “may logically give rise to a discount of up to 30 per cent of the sentence depending on the extent to which it mitigates moral culpability for the offending”.39 In Berkland v R, the Supreme Court approved account being taken of background factors such as addiction, where a “causative contribution” is identified.40
39 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [149].
40 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [109].
[66] In my view, Mr Ahokava’s adjusted starting point should have been reduced by 15 per cent, to acknowledge the role his methamphetamine addiction played in diminishing his moral culpability. His pattern of offending appears substantially to be driven by his addiction. And while his offending also demonstrated a disinclination to take advantage of the rehabilitative opportunity offered by his sentence of intensive supervision, I recognise that his capacity to do so will have been impeded by his addiction.
Conclusion and result
[67] In light of the above, I consider the Judge should have, from the starting point of three years:
(a)applied a 30 per cent reduction to that starting point, to account for Mr Ahokava’s guilty pleas and diminished moral culpability arising from addiction; and
(b)applied to that reduced figure:
(i)an uplift of five months to account for the fact his offending was committed while he was on sentence (and mostly on bail); and
(ii)an uplift of three months to account for the personal circumstances of his criminal history.
[68] Therefore, I consider the Judge should have imposed an overall sentence of 33 months’ imprisonment. As a sentence of that duration is significantly less than the 37-month sentence that was imposed, it follows that I consider the sentence imposed to be manifestly excessive.
[69] A sentence of 33 months’ imprisonment being well in excess of a short-term period of imprisonment,41 the question of imposing any sentence other than one of imprisonment does not arise.42
[70] Accordingly, Mr Ahokava’s appeal is allowed. I quash the sentences imposed in respect of the burglary and receiving charges, and substitute concurrent sentences of 33 months’ imprisonment.
Johnstone J
41 A short-term sentence being defined in s 4 of the Sentencing Act as a determinate sentence of 24 months or less (see definition of short-term sentence in s 4 of the Parole Act 2002).
42 Sentencing Act, s 15A(1)(b).
13
0