Currie v Police
[2025] NZHC 2832
•26 September 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2025-409-000193 CRI-2025-409-000194 CRI-2025-409-000195 CRI-2025-409-000196
[2025] NZHC 2832
BETWEEN PHILIP LEN CURRIE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 25 September 2025 Appearances:
P N Allan for Appellant
K N Stitely for Respondent
Judgment:
26 September 2025
JUDGMENT OF EATON J
(appeal against sentence)
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
CURRIE v POLICE [2025] NZHC 2832 [26 September 2025]
Introduction
[1] Philip Currie appeals a sentence of two years and three and a half months’ imprisonment imposed by Judge Couch on 5 August 2025 in the Christchurch District Court1 following his guilty pleas to charges of:
(a)Breach of release conditions;2
(b)Burglary (x 2);3
(c)Failure to answer bail;4 and
(d)Unlawful possession of ammunition.5
[2] The sentence included a two-month uplift on a resentencing, Mr Currie having failed to complete an earlier sentence of community work.
Facts
[3] Mr Currie was released from prison on 25 June 2024 and was subject to one year and two months of post-detention release conditions. He was formally inducted, indicated that he fully understood the terms and conditions of his release licence and signed the induction document accordingly. Mr Currie breached a release condition on 27 October 2024 by consuming alcohol. For that breach and on a charge of disorderly behaviour, he was sentenced to 40 hours’ community work on 19 November 2024. Mr Currie was sentenced to a further 40 hours of community work on 2 December 2024 after pleading guilty to a charge of burglary.
[4] On 8 January 2025, Mr Currie was sent a letter urging him to re-engage with his sentence obligations to avoid enforcement action being taken after a period of
1 Police v Currie [2025] NZDC 18422.
2 Sentencing Act 2002, s 96(1)—maximum penalty: one year of imprisonment or a fine not exceeding $2,000.
3 Crimes Act 1961, s 231(1)(a)—maximum penalty: 10 years’ imprisonment.
4 Bail Act 2000, s 38(a)—maximum penalty: one year of imprisonment or a fine not exceeding
$2,000.
5 Arms Act 1983, s 22B—maximum penalty: fine not exceeding $10,000.
non-compliance. On 29 January 2025 he failed to report as instructed and was breached.
[5] Mr Currie completed only two hours of the two community work sentences and last reported on 23 January 2025. An application was made to cancel and substitute the community work sentence.
[6] I turn to the property offending. At approximately 4.30 am on 15 December 2024, Mr Currie walked up the driveway and through the carport of an address in Christchurch and stole two sets of outdoor lights. He left, but returned a short time later and took a box of beer that had been left in the carport. The items had a combined value of $30. About a week later, at approximately 6.30 am on 22 December, Mr Currie entered another property through a side gate and took a hedge trimmer valued at $200.
[7] During a search of Mr Currie’s property, police located two rounds of 7 mm ammunition and one round of 803 ammunition. While these matters were before the Court and Mr Currie was on bail, he failed to appear before the District Court on 24 April 2025. He was subsequently arrested and remanded in custody four days later.
District Court decision
[8] Judge Couch assessed the gravity of the two burglary lead charges as “moderate”.6 He considered the fact the offending involved dwelling houses and took place at times the occupants were likely to be home enlivened a risk of confrontation and aggravated the offending. He adopted a starting point of 20 months’ imprisonment for the two burglaries.7
[9] The Judge described the breach of release conditions as “relatively serious as it totally deprived the sentence of any effect”. A four-month uplift was applied.8 A further two-month uplift was imposed for the charge of failing to answer bail.
6 At [8].
7 At [9] and [17].
8 At [10].
Mr Currie was convicted and discharged on the charge of possession of ammunition. The Judge declined to make a totality deduction.
[10] The Judge considered a 20 per cent uplift was appropriate to reflect Mr Currie’s previous convictions, which the Judge noted included 64 convictions for offences involving dishonesty and 10 for burglary. After allowing a 25 per cent deduction for guilty pleas, the result was “an end point of just under 25 months’ imprisonment.”9
[11] The application to resentence Mr Currie for the failure to complete the sentences of community work was granted and that sentence was substituted with a cumulative sentence of two months’ imprisonment for the burglary alongside a one month concurrent sentence for the disorderly charge, and a two month concurrent sentence for the breach of release conditions.
[12] That led to an end sentence of 27.5 months’ imprisonment. It is common ground on appeal that the Judge made a mathematical error. The final sentence the Judge in fact arrived at was 26.7 months’ imprisonment.
Principles on appeal
[13] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.10 As the Court of Appeal stated in Tutakangahau v R, referencing the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.11 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.12
9 At [16].
10 Criminal Procedure Act 2011, ss 250(2) and 250(3).
11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
12 Ripia v R [2011] NZCA 101 at [15].
The appeal
Appellant’s submissions
[14] Mr Allan, for Mr Currie, submits that the starting point adopted by the Judge was too high. He highlights that the dwellinghouses were not themselves entered and items of relatively low value were taken such that the burglaries must be considered very low level. He submits the error in fixing the starting point was compounded by the decision not to adjust for totality and the uplift for prior convictions. Mr Allan further submits that the Judge should have factored in a deduction to reflect Mr Currie’s ongoing struggles with homelessness and addiction. No issue is taken with the resentencing exercise.
Respondent’s submissions
[15] Ms Stitely, for the respondent, opposes the appeal, submitting there is no error in the sentence imposed. Ms Stitely accepts the risk of confrontation with an occupant is moderated by the fact the appellant did not enter the home, but submits the Judge was correct to find the early morning targeting of residential properties aggravated the offending.
[16] Ms Stitely submits that the starting point of 20 months’ imprisonment for both burglaries is consistent with case law for other low-level residential burglaries.13 She observes that the Judge explicitly referred to totality when considering the global starting point to be appropriate, and submits it is notable the Judge did not uplift the sentence to reflect that Mr Currie was subject to sentence when the offending occurred.14
[17] Ms Stitely does not accept that a causal nexus between Mr Currie’s addiction and/or background is apparent in his theft of low-value items that she describes as not readily useful to fund an addiction, nor to support himself while he is unhoused.15
13 Citing Moerea v Police [2015] NZHC 2226; and Nelson v Police [2019] NZHC 2434.
14 At [13].
15 R v Kawhe [2022] NZHC 1852 at [25]–[27].
Analysis
[18] The Judge adopted a 20-month starting point for the two burglaries, a four-month uplift for the breach of release conditions and a two-month uplift for failing to answer bail. I will deal with each of those components of the sentence in turn.
The burglaries
[19] The Court of Appeal in Arahanga v R observed that dwellinghouse burglaries at the relatively minor end of the scale tend to attract a starting point of between 18 months’ and two-and-a-half years’ imprisonment.16 In Nelson v Police, after reviewing a number of cases, this Court observed that sentences below 18 months’ imprisonment were often imposed for lower-level residential burglaries. The Court considered that the realistic range for dwellinghouse burglaries at the lower end of the scale is appropriately between one year and two and a half years’ imprisonment.17
[20] There is no guideline judgment for burglary because of the range of circumstances in which the offence can be committed is so varied.18 However factors relevant to the criminality of the offending include the nature of the premises entered, the nature and value of the property stolen, damage done, the impact and potential impact upon occupants or owners of property, and the extent of the offending where multiple burglaries were involved.19
[21] The two burglaries committed by Mr Currie engage few of those factors. In both cases he unlawfully entered onto a residential property and engaged in the opportunistic theft of low-value items left outside. It is not suggested that Mr Currie made any attempt nor intended to enter either dwellinghouse. There was no confrontation with occupiers. Indeed, the summary of facts does not record whether the occupants were home or not. It is unclear why the Judge considered there was a risk of confrontation with occupiers.
16 The Court of Appeal’s range discussed in Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78] has not strictly been applied—see Nelson v Police, above n 13, at [33].
17 At [33].
18 Arahanga v R, above n 16, at [78].
19 R v Nguyen CA110/01, 2 July 2001 at [17]. See also Senior v Police (2000) 18 CRNZ 340 (HC) at [19].
[22] Ms Stitely relies on Moeroa v Police as authority supporting the starting point adopted by the Judge. Mr Moeroa went on to a residential property. He tried to enter the property through a window. When confronted by a neighbour he explained that he was picking flowers. He left in his car. The sentencing Judge considered that the occupants were put in danger. On appeal, Edwards J observed that the offending was during daylight hours; there was no suggestion that the appellant actually entered the dwelling; and that no property was taken or damaged. The starting point adopted in the District Court was significantly reduced from two years and six months to 15 months’ imprisonment.20 In my view, an important and distinguishing feature of that offending was that the offender clearly intended to enter the property and was seen by the occupier giving rise to an elevated risk of danger.
[23] The second case referred to by Ms Stitely is Nelson v Police. In Nelson, the appellant forced open a fanlight window and shattered an inside glass pane. He reached through the glass window leaving his fingerprints on the interior side. Hinton J adopted a starting point of 14 months’ imprisonment. Again, I consider that offending to be distinguishable to that of Mr Currie, given the offender made a deliberate attempt to force entry into the dwellinghouse.
[24] In sentencing Mr Currie, the Judge described the gravity of the burglaries as moderate. In my view, both burglaries engaged very low-level gravity. The starting point of 20 months’ imprisonment for both offences was too high. I consider the appropriate starting point for the first burglary was 10 months’ imprisonment, with an uplift of seven months for the second committed a week later. The appropriate starting point was 17 months.
Uplift for breach of release conditions
[25] I also consider that the four-month uplift for the breach of release conditions charge and the two-month uplift for failing to answer bail warrant reconsideration. Both appear to be high and the reasons for the level of uplift are not clear.
20 At [15] and [22]–[23].
[26] The release conditions were imposed following Mr Currie’s release in June 2024 from a sentence of seven months’ imprisonment imposed on 8 March 2024. That sentence was imposed on charges of burglary, receiving and a breach of conditions of intensive supervision. The present breach was Mr Currie’s failure to report to probation in mid-January 2025, but the summary indicates there had been a pattern of non-compliance.
[27] As mentioned, the Judge described the breach as “relatively serious as it totally deprived the sentence of any effect”.21 In my view, that overstates the gravity of the breach. The breach undermined the rehabilitative component of the sentence, but the substance of the sentence was the term of imprisonment that Mr Currie had served. The sentence was not totally deprived of any effect. Further, in my view, a four-month uplift for breaching a release condition following a seven month sentence lacks proportionality.
[28] In Whiu v Police, the underlying circumstances of the appellant’s breach of release conditions were unremarkable.22 Mr Whiu had reported only once to his probation officer before failing to report. The District Court Judge adopted a starting point of eight months’ imprisonment on the basis that the appellant had eight previous convictions for breaching release conditions. Gordon J reduced that starting point to two months’ imprisonment on appeal. The Judge then helpfully referred to a number of cases considering the appropriate sentence for breaching release conditions.23 That review confirmed there is no tariff case for offending of this type, and that a four-month uplift for Mr Currie’s failure to comply with release conditions by failing report to a probation officer is at the maximum of the available range.
[29] Mr Currie has three prior convictions for breaching release conditions. In 2017 he was convicted and discharged. In 2018 he was convicted and ordered to come up for sentence if called upon. In 2019 he was sentenced to a concurrent term of imprisonment of three months. That history justifies an uplift, but I am satisfied the
21 At [10].
22 Whiu v Police [2020] NZHC 298.
23 At [21].
four-month uplift was too high. I consider an uplift of no more than two months’ imprisonment to be appropriate.
Uplift for failing to answer bail
[30] Failing to answer bail is commonly dealt with by a conviction and discharge,24 as is reflected in Mr Curries’ criminal history. He has nine prior convictions for failing to answer bail. On six occasions he has been convicted and discharged and on three occasions he received concurrent sentences. He has not previously been sentenced to a cumulative term of imprisonment for failing to answer bail.
[31] A conviction and discharge serves as a record of the defendant’s failure to appear and will inform the risk assessment for any future bail application. It also reflects that a likely consequence of failing to answer bail is that a defendant is remanded in custody. The failure to appear is often subsumed by the offending for which the defendant was required to appear in court.
[32] I accept there may be cases where the failure to answer bail may justify an uplift. In such a case, and as observed by Whata J in Gebremedhin v Police, a starting point in the order of one to two months (at most) would typically be justified for a single breach.25
[33] There was no material before the Judge to indicate that Mr Currie’s failure to appear was particularly serious and it seems the Police had little difficulty catching up with him four days after his failure to appear, when he was remanded in custody. The two-month uplift adopted was excessive. If any uplift was called for, it ought to have been no more than one month.
24 Sentencing Act, s 108. See for example R v Emery [2012] NZHC 2933 at [20(f)]; De Seymour v Police [2013] NZHC 2232 at [20]; R v Felts [2013] NZHC 451; and R v Walters [2012] NZHC 1750 at [26].
25 Gebremedhin v Police [2018] NZHC 2824 at [17].
Totality
[34] Having adopted cumulative starting points the Judge observed, “That leads to a combined starting point of 26 months’ imprisonment which having regard to totality I consider appropriate the [sic] adjusted starting point.”26
[35] Pursuant to s 85(2) of the Sentencing Act 2002, if cumulative sentences of imprisonment are imposed, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending. The Judge did not engage in that analysis.
[36] Ms Stitely submits that no totality deduction was called for because the individual starting points or uplifts applied by the Judge were for distinct types of offending. But that submission only serves to support the imposition of cumulative sentences. It does not address the proportionality assessment required pursuant to s 85(2).
[37] I have assessed the individual starting points adopted by the Judge to be too high and that an appropriate global starting point is 20 months’ imprisonment. Having dealt with the two burglaries as connected offending, in my view no totality adjustment is then required. The reduced global starting point I have adopted is not wholly out of proportion to the gravity of the overall offending.
Uplift for previous convictions
[38] Mr Allan submits that the Judge erred in applying a 20 per cent uplift to reflect Currie’s previous convictions. Mr Currie has 10 convictions for burglary and over 20 convictions for dishonesty offending involving theft or receiving over the same period of time. I consider the level of uplift was stern but available.
Insufficient credit for addiction?
[39] The Judge had the benefit of a brief report from alcohol and other drug assessment and treatment services (ADAS). That report records that Mr Currie is
26 At [13].
homeless and that ADAS would refer him for more intensive alcohol and drug treatment “should he be in a position to engage”. It concludes that any programmes or group work would be an unrealistic treatment. The pre-sentence report recorded that Mr Currie has previously refused to engage with an alcohol and drug program. Mr Currie told the pre-sentence report writer that he was intoxicated at the time of his offending, but that he was only drinking due to it being around Christmas time. Mr Currie also reported to not have consumed alcohol since his offending.
[40] Credits for an offender’s background remain a discretionary exercise.27 A causal contribution between an offender’s background and offending will be sufficient to merit a credit at sentencing.28
[41] Ms Stitely contends that there is no causal connection between Mr Currie’s addiction and the present offending because the low-value items he stole were not readily useful to fund an addiction. I do not accept that submission. I have no doubt that a hedge trimmer and lights might be tradeable for cash that might then be used to purchase alcohol or drugs.
[42] I do however agree that there is some doubts as to exactly what was motivating Mr Currie to commit these low-level burglaries. Was he simply intoxicated (as he claims) and wandering aimlessly through properties, or was he targeting easily accessible goods that could be transported by hand and converted to cash to buy alcohol or drugs? Mr Currie’s various responses do not, of themselves, assist in trying to identify a causal connection between his addiction and his offending.
[43] Perhaps more significantly, Mr Currie presents as a high risk of offending. The sentencing purpose of community protection must be prioritised having regard to the recidivist nature of Mr Currie’s offending and the high risk he presents.29
[44]I am not satisfied a discrete deduction is appropriate.
27 Rivers v Police [2024] NZHC 2847 at [43]; and Collins-Roberts v R [2025] NZHC 2448 at [36].
28 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
29 Sentencing Act, s 7(1)(g).
Conclusion
[45] I am satisfied the Judge erred in setting the starting points and uplifts for the admitted offences. Those errors have led to a manifestly excessive sentence. The appropriate adjusted starting point is 20 months’ imprisonment. With adjustments, as adopted in the District Court for previous convictions, guilty pleas and to reflect the resentencing, the end sentence is 21 months’ imprisonment.
[46] The mathematical error made by the District Court Judge is subsumed by the adjustments that I have made to the sentence on appeal. Leave to apply for home detention is not sought and is declined.
Result
[47] The sentence of 10 months’ imprisonment imposed on each of the burglary charges is quashed and substituted with a sentence of eight months’ imprisonment (total 16 months’ imprisonment).
[48] The sentence of four months’ imprisonment imposed on the charge of breaching release conditions is quashed and substituted with a sentence of two months’ imprisonment—cumulative on the 16-month sentence.
[49] The sentence of one month and 14 days imprisonment imposed on the charge of failing to appear is quashed and substituted with a sentence of one month imprisonment—cumulative on the two-month sentence.
[50] The two-month cumulative sentence imposed on the resentencing remains, as does the reparation orders.
[51] The total sentence is one of 21 months’ imprisonment. I impose the recommended special release conditions as follows:
(a)Mr Currie is not to possess, consume or use any alcohol or drugs not prescribed to him.
(b)Mr Currie is to attend an assessment for an appropriate alcohol and/or drug programme as directed by a probation officer.
(c)Mr Currie is to attend and complete any counselling, treatment or programme as recommended by the assessment as directed by, and to the satisfaction of, a probation officer.
...................................................
Eaton J
Solicitors:
Crown Solicitors, Christchurch
Counsel:
P N Allan, Barrister, Christchurch
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