Arama-Heta v The King
[2025] NZHC 2890
•2 October 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2025-404-348
[2025] NZHC 2890
BETWEEN TOMA ARAMA-HETA
Appellant
AND
THE KING
Respondent
Hearing: 15 September 2025 Appearances:
S Thode and M I A Creamer for Appellant A Mateni for Respondent
Judgment:
2 October 2025
JUDGMENT OF O’GORMAN J
[Appeal against sentence]
This judgment was delivered by me on 2 October 2025 at 11 am
Registrar/Deputy Registrar
…………………………………
Solicitors/Counsel:
Thode Utting & Co, Auckland Meredith Connell, Auckland
ARAMA-HETA v R [2025] NZHC 2890 [2 October 2025]
Introduction
[1] This is an appeal against the sentence of Judge B A Gibson on 24 June 2025.1 Mr Arama-Heta pleaded guilty to two charges of burglary2 (both residential properties) and possession of cannabis for sale.3 Each burglary charge carried a maximum sentence of 10 years’ imprisonment, and the possession charge carried a maximum sentence of eight years’ imprisonment.
[2] The appellant was given an end sentence of 45 months’ imprisonment (equivalent to three years and nine months).4
[3]Mr Arama-Heta appeals his sentence on the basis that:
(a)the starting point adopted by Judge Gibson was too high;
(b)the Judge failed to give appropriate reductions for personal mitigating factors; and
(c)the end sentence was manifestly excessive and is not the least restrictive outcome available.
[4]The Crown opposes the appeal and contends that:
(a)the starting point for the lead charges of burglary was available, as was the overall adjusted starting point;
(b)the reductions for personal circumstances were appropriate, reflecting the principles and purposes of sentencing; and
(c)the end sentence imposed was not manifestly excessive.
1 R v Arama-Heta [2025] NZDC 14603 [judgment under appeal].
2 Crimes Act 1961, ss 66 and 231(1)(a).
3 Misuse of Drugs Act 1975, s 6(1)(f).
4 Judgment under appeal, above n 1, at [23].
Legal principles
[5] The Court must allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.5 Generally, the sentence must be shown to be manifestly excessive or wrong in principle.6 The focus is on the end sentence imposed, rather than the process by which it is reached.7
[6] The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of prior error, which may include questions of whether the starting point was too high given the facts, or of incorrect discounts.8
[7] Appellate courts do not indulge in mere tinkering with a sentence.9 The Court generally will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.
Facts of offending
[8] The first of the two burglary charges relates to a property at Royal View Road, Te Atatū South. At approximately 12 pm on 24 June 2024, the defendant was driving with a passenger who was aged 17 years old. Mr Arama-Heta stopped the car on Royal View Road outside a residential address. He remained in the car while the other person used a tool to force open a security screen door at the front of the dwelling house. That second person then entered the dwelling and searched the bedrooms, tipping out drawers and going through wardrobes. He took items including jewellery and scarves and returned to the vehicle. Mr Arama-Heta drove them away from the scene.
[9] The second burglary relates to a property near Parkvale Grove, Te Atatū. At around 1.30 pm on 24 June 2024, Mr Arama-Heta drove the car to Parkvale Grove and parked there, dropping his co-offender at the end of the road. That person then
5 Criminal Procedure Act 2011, s 250.
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].
7 At [36].
8 At [32].
9 R v Boyd (2004) 21 CRNZ 169 at [38].
went through a park to enter an address on Te Atatū Road, Te Atatū. One of the residents was asleep in his bedroom when the co-offender entered the house. The victim opened his bedroom door to investigate the noise and was confronted by the co-offender brandishing a piece of metal and ordering him to get on the ground. The co-offender demanded his phone, then bound together the victim’s hands with a rope and forced him back to the bedroom asking him to point out valuables. The co-offender put a pillowcase over the head of the victim and led him around the house asking where the safe was. He eventually led the victim to the garage where a car owned by the victim’s flatmate was parked. The co-offender forced the victim to get into the boot and closed it. The co-offender left the address with a number of stolen items and went back to Mr Arama-Heta who was waiting on Parkvale Grove. A short time later the co-offender returned to the address, taking more items and putting them in the flatmate’s car. He then drove the car away from the address with the victim still in the boot. Mr Arama-Heta followed behind in his own vehicle. When the vehicle was temporarily stopped on Roberts Road, the victim escaped from the boot and became involved in a physical altercation with the other offender. The co-offender then got in Mr Arama-Heta’s vehicle and they drove away.
[10] The criminal proceeding ultimately proceeded only against Mr Arama-Heta, because the co-offender died so he was never convicted or sentenced.
[11] The witness statement from the victim in the second burglary makes it clear that Mr Arama-Heta would not have seen the victim being placed in the boot of the car or any of the events within the house. The garage door was closed during the relevant times, and was only opened when the car exited with the victim already in the closed boot. That is also consistent with Mr Arama-Heta’s apology letter to that victim. It may also explain what Mr Arama-Heta meant in his comment about innocence recorded in the Provision of Advice to Courts report (PAC report).
[12] In respect of the cannabis charge, on 25 June 2024, police executed a search warrant at the defendant’s home address. Property stolen from the burglaries was located in the defendant’s wardrobe. They also located a large plastic bucket with a lid on it, containing 28 separate ziplock bags with 256 grams of cannabis.
District Court decision
[13] The District Court followed the two-step methodology for sentencing as set out in Moses v R.10
[14] The Judge adopted the two burglary charges as the lead offending and adopted a starting point of four years’ imprisonment, relying on Brown v New Zealand Police.11 The Judge then uplifted the starting point by six months to reflect the remainder of the offending, giving an adjusted start point of four years and six months’ imprisonment.12
[15] The Judge then gave a total of 25 per cent of deductions for personal mitigating factors, based on the following:13
(a)20 per cent for Mr Arama-Heta’s guilty pleas; and
(b)five per cent for letters of remorse and willingness to participate in restorative justice.
[16]Finally, the Judge applied four months of uplift for:14
(a)prior offending; and
(b)offending whilst subject to electronically monitored bail.
[17] Overall, the Judge arrived at an end sentence of 45 months’ (three years and nine months’) imprisonment.15
10 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
11 Judgment under appeal at [20] relying on Brown v New Zealand Police [2017] NZHC 632.
12 Judgment under appeal at [21].
13 At [21].
14 At [22].
15 At [23].
Submissions
[18] Counsel for the appellant submits that the starting point of four years’ imprisonment was too high (the six-month uplift for cannabis supply is not challenged).
(a)Counsel for the appellant suggests that a global starting point for the burglary offending in the vicinity of 28 months’ imprisonment should be used. This reflects the principles in Arahanga v R16 and Nelson v New Zealand Police,17 both indicating that a more realistic range for low-end dwelling house burglaries is up to two and a half years’ imprisonment.
(b)Counsel for the appellant submits that those cases provide a more analogous framework, because Mr Arama-Heta did not leave the vehicle or enter either property. In respect of the second incident at Parkvale Grove, Mr Arama-Heta did not participate in, expect or know about the violence or detention that occurred inside the dwelling when it occurred. Ms Thode disputes any assertion that Mr Arama-Heta was a “full participant” simply because he was older, a more experienced criminal and the getaway driver. Rather, she submits that an overall starting point of 28 months’ imprisonment for the two burglary charges reflects the true extent of his participation as a driver and lookout who did not know that any violence would be resorted to during a daytime burglary (when occupants might be assumed to be at work), and who did not participate in any way in that violence or detention at the time it occurred. Adding a six-month uplift to reflect the cannabis supply charge would result in an overall starting point of 34 months’ imprisonment.
16 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.
17 Nelson v New Zealand Police [2019] NZHC 2434.
(c)For the same reasons, counsel for the appellant submits that Brown is not analogous. Among other things, the defendant in Brown entered the address using a tool to force open the window, and personally ransacked the house (considered to be an aggravated factor). A large quantity of personal belongings were stolen and never recovered, and underwear was strewn about. Furthermore, Brown included an 18-month uplift for an extensive criminal history.
[19] The second ground of appeal is a failure to give any discount for Mr Arama-Heta’s personal background and history, in terms of s 27 of the Sentencing Act 2002. His personal background was referred to in the PAC report dated 22 May 2025, and in Mr Arama-Heta’s affidavit. From the ages of 9 to 13, he endured ongoing abuse and bullying, accompanied by death threats if he ever spoke about it. By age 13, Mr Arama-Heta started using methamphetamine, cannabis, and alcohol to cope with the trauma, and others introduced him to criminal activity from that time. This led to consequences in the youth justice system. By age 18, Mr Arama-Heta was in jail and had joined a gang to “stay safe”. However, he claims to have severed all ties with the gang following his release in 2020.
[20] In his affidavit Mr Arama-Heta says he is not proud of what he has done in his past, but he is ready to leave it behind. He now has two young children and he wants to be better because he does not want them growing up the way he did.
[21] Counsel for the appellant submits that this background clearly demonstrates a causal nexus between his early trauma, substance abuse, and negative peer influences and his current offending behaviour. From a young age of around 13, Mr Arama-Heta learnt to rely on criminal activity to survive.
[22] In Berkland v R, it was recognised that causative contribution can arise from “diffuse drivers or the intergenerational sources of offending”.18 Mr Arama-Heta’s experiences of trauma, lack of prosocial family support and chaotic circumstances early in life fit within the criminogenic risk factors identified in Berkland as justifying
18 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [109].
a reduction.19 In this case, counsel submits that a reduction in the vicinity of 15 per cent was available and appropriate to reflect those s 27 considerations.
[23] In addition, the third ground of appeal is that the five per cent discount allocated for remorse and participation in a restorative justice conference is inadequate. A 10 per cent discount is appropriate to reflect Mr Arama-Heta’s consistent expression of remorse and insight into the background factors that led to his offending, and his willing engagement with restorative justice, including offering genuine apologies to the victims and committing to pay reparation when he has secured employment (even though this was not ordered). During his time in custody, Mr Arama-Heta has completed a number of remand programmes including AOD (alcohol and other drug use), resilience, tikanga and kapa haka. He has taken proactive steps towards rehabilitation, including seeking a placement with Whakaoranga for Residential Rehabilitation (he could not attend only because his EM bail application to that facility was declined).
[24] Accordingly, the appellant submits that an end sentence in the vicinity of 23 months’ imprisonment would have been appropriate to reflect the purposes and principles of sentencing, based on the following calculation:
(a)An overall starting point of 34 months’ imprisonment.
(b)Deductions of 20 per cent for guilty pleas, 15 per cent to reflect his personal background under s 27 of the Sentencing Act, and 10 per cent to reflect his genuine remorse and rehabilitation efforts.
(c)After those applied, the uplift of four months’ imprisonment would reflect Mr Arama-Heta’s prior relevant convictions and offending while on EM bail.
[25] Should the above approach be adopted, Mr Arama-Heta would be eligible for immediate release.
19 At [114]–[121] and [127]–[129].
[26] The Crown opposes the appeal, contending that the starting point reflected that the Judge deemed Mr Arama-Heta a “full participant” based on the principle in R v Mako that co-offenders are no less culpable simply because they took assigned roles, and sometimes the getaway driver may in fact be the ringleader.20 On that basis, Mr Arama-Heta’s culpability could be viewed as more serious than in Brown. The Crown submits that Mr Arama-Heta must have appreciated that violence was a possible outcome, based on his previous history. The fact he retained the stolen property in his wardrobe further supports his lead role in the offending.
[27] As for ground two, the respondent submits that any reduction for background factors must be tempered by the need to protect the community in circumstances where Mr Arama-Heta continues to offend. The PAC report records that Mr Arama-Heta maintained that he is innocent and pleaded guilty “to get it over and done with”, causing concern for the report writer that Mr Arama-Heta was minimising his part in the offending and lacked accountability and insight, which could hinder his ability to fully engage in rehabilitation and address the underlying contributing factors.
[28] Therefore, the respondent says that expressions of remorse should not be considered genuine, so a total discount of 25 per cent (including for the guilty pleas) was all that was appropriate.
Analysis
[29] Reviewing the facts described in the summary of facts and related witness statements, I do not agree with the Judge’s conclusion that Mr Arama-Heta was a “full participant” for the conduct in the house with the second victim. The principle in Mako applies when co-offenders engage in offending conduct with a common intention, but dividing up their assigned roles. In those circumstances, there is shared responsibility for a co-offender’s conduct, reflecting their full culpability for that joint offending. I accept the point made in that case that a getaway driver may in fact be the ringleader, in which case culpability properly applies for the conduct of those whom the ringleader instructed.
20 R v Mako [2000] 2 NZLR 170 (CA) at [64].
[30] The issue in this case is whether there is any proper basis for concluding that Mr Arama-Heta anticipated that violence might be resorted to if anybody happened to be at home when these daytime burglaries were conducted. The Judge reached that conclusion based on Mr Arama-Heta’s previous criminal history, and the fact stolen items were found in his wardrobe.
[31]Apart from Youth Court notations, Mr Arama-Heta’s criminal history includes:
(a)Convictions on 25 October 2024 and concurrent sentences of imprisonment for 10 months (plus $200 in reparation) for two low value burglaries (under $500) and receiving stolen property (over $1000).
(b)Convictions on 30 September 2016 for offending on 1 October 2015 of a serious nature, resulting in concurrent sentences of two years and two months’ imprisonment for assault with intent to rob and two aggravated robbery charges.
(c)Convictions on 23 February 2016 for two low value burglaries on 14 and 15 November 2015, resulting in sentences of community work with intensive supervision and community detention.
[32] While that history does include some violence, this was almost eight years earlier. By the time of the present offending on 24 June 2024, he was 26 years old and was living with his partner and two young children, and claims he had severed all gang ties.
[33] I am not satisfied that this background is evidentially sufficient for concluding that Mr Arama-Heta was a ringleader who contemplated or intended that violence might be used in these burglaries. Such an inference might more readily be available if the burglaries were conducted at night when occupants might be expected to be at home sleeping. These two burglaries were in the middle of the day. If violence was anticipated, then it seems unlikely that Mr Arama-Heta would park some distance away and leave his young co-offender to travel through the park to the property to deal with any such issues on his own.
[34] My assessment is that the evidence only substantiates that Mr Arama-Heta’s participation was as a driver and lookout, with no proof that he knew or suspected that violence might occur. In the restorative justice conference on 11 June 2025, Mr Arama-Heta explained that he was unaware that anything unusual was happening. While the co-offender returned briefly with some items, then left again and later reappeared with a high-end vehicle, Mr Arama-Heta said he did not know that there had been any confrontation or that the victim was in the car. This only became evident when he saw an altercation once the victim got out of the vehicle, at which point Mr Arama-Heta intervened to prevent the conflict escalating. In the restorative justice conference, Mr Arama-Heta said he took full responsibility for being part of the offending, but he never knew what was going on at the time.
[35] On the material before me, I am not satisfied that it is appropriate to sentence Mr Arama-Heta for the nature and severity of the violent conduct committed by his co-offender. This goes beyond the facts expressly or implicitly admitted by Mr Arama-Heta’s guilty plea. I consider it strays too far into guessing or speculating on matters beyond what was stated in the summary of facts. On that basis, I accept the submissions from counsel for the appellant that an overall starting point of 28 months’ imprisonment for the two burglary charges reflects the true extent of Mr Arama-Heta’s participation as a driver and lookout who did not know about or participate in any intended violence or detention at the time. Combined with the six-month uplift to reflect the cannabis supply charge, I accept the appropriate overall starting point was 34 months’ imprisonment.
[36] Turning to personal mitigating factors, I also accept that a total of five per cent for all factors beyond the 20 per cent for guilty pleas is inadequate. The Judge allocated only five per cent for remorse and participation in restorative justice, with no reduction afforded for background factors in terms of s 27 of the Sentencing Act. I consider this was an error because his personal background, as disclosed in the PAC report and in his affidavit, shows substantial deprivation and lack of prosocial family support in Mr Arama-Heta’s childhood, including abuse and bullying leading to drug and alcohol dependence and criminal activity from the age of 13. I accept that these factors help to explain how Mr Arama-Heta came to offend, and amount to a
causative contribution that is relevant for the purpose of sentencing, as discussed in
Berkland.21 I consider a reduction in the vicinity of 15 per cent is justified.
[37] The appellant also argues that a 10 per cent reduction, rather than five per cent, is appropriate to reflect remorse and engagement with restorative justice. I agree that a reduction at that level could be justified on the facts, or alternatively because it is necessary to consider the impact of a custodial sentence on Mr Arama-Heta’s two young children.
[38] In Philip v R, the Supreme Court recognised the effect of sentencing on the appellant’s young child as a separate mitigating factor reflecting s 8(1)(h)–(i) of the Sentencing Act,22 referring to this being consistent with the United Nations Convention on the Rights of the Child:23
[52] … 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] …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.
[39] In that case, a 10 per cent reduction was considered appropriate for the impact the sentence of imprisonment would have on the appellant’s young child.24 In C (CA 153/2023) v New Zealand Police, the Court of Appeal stated that “[a]ttention to the impact of a custodial sentence on the family life of an innocent child is required in all cases”.25
21 Berkland v R, above n 18, at [114]–[121] and [127]–[129].
22 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571 at [52].
23 Footnotes omitted.
24 At [15] and [48].
25 C (CA 153/2023) v New Zealand Police [2024] NZCA 136 at [60(b)].
[40] The fact that the appellant has two young children seems closely connected with his current expressions of remorse and intent to rehabilitate. Both his letters of apology refer to those two young children causing him to feel ashamed for his involvement, to reflect on his actions, and to want to turn his life around for the sake of his family. The PAC report also refers to him stating “that his partner and children are his primary motivation for maintaining an offence-free lifestyle”, but the writer remained sceptical because the offending occurred despite those family commitments. I am more optimistic that Mr Arama-Heta has post-offending insight following the death of his co-offender and after reflecting on the sentencing consequences for his family. In any event, the impact on his children is a separate mitigating factor.
[41] For these reasons I accept that a discount of 20 per cent for guilty pleas should have been accompanied by a further 25 per cent of discounts to reflect his personal background under s 27, his remorse and rehabilitation efforts, and the impact of a custodial sentence on his two young children.
[42] It follows that the end sentence was manifestly excessive, and the appeal ought to be allowed with the substitution of a sentence for 23 months’ imprisonment.
Result
[43]The appeal is allowed.
[44] The sentence of three years and nine months’ imprisonment imposed in the District Court is quashed and a sentence of 23 months’ imprisonment is substituted.
O’Gorman J
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