Dave v The King
[2025] NZHC 1467
•5 June 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2025-404-152
[2025] NZHC 1467
BETWEEN NGATOKOA TINA DAVE
Appellant
AND
THE KING
Respondent
Hearing: 20 May 2025 Appearances:
A Jenkin and C Megala for the appellant C A Jordan for the respondent
Judgment:
5 June 2025
JUDGMENT OF BLANCHARD J
[Appeal against sentence]
This judgment was delivered by me on 5 June 2025 at 3.00 pm Registrar/Deputy Registrar
Solicitors:
Public Defence Service, Auckland Meredith Connell, Auckland
DAVE v R [2025] NZHC 1467 [5 June 2025]
[1] Mr Dave appeals against a decision of Judge N R Dawson in the District Court at Auckland dated 21 February 2025,1 sentencing him to three years and two months’ imprisonment on a charge of robbery,2 to which he had pleaded guilty.
The offending
[2] The victim is an 82-year-old female who lives alone. Mr Dave was known to her through a mutual associate.
[3] At about 7.15 am on 15 September 2024, the victim opened the back door of her home in Mr Albert and found Mr Dave standing at the door holding a long object in his hands. Mr Dave said to the victim, “I’ve come to get money”. He then pushed the victim on her chest with both hands, causing her to fall backwards onto the ground.
[4] Mr Dave then pushed her into the lounge, where she sat down in a chair. He repeated that he wanted money and acted threateningly towards her. He then took the victim’s handbag and housekeys from her living room.
[5] The victim alerted her friend as she arrived outside her house. Mr Dave left the house, taking the handbag and the victim’s keys with him.
[6] Mr Dave was apprehended by Police later in the day. The victim’s handbag and keys were found inside his car.
[7] As a result of being pushed by Mr Dave, the victim sustained a graze to her right arm, bruising to her right wrist and bleeding from her mouth.
The District Court decision
[8] The Judge considered that there are the following aggravating factors in this case:3
(a)The victim was an 82-year-old woman.
1 New Zealand Police v Dave [2025] NZDC 3838.
2 Crimes Act 1961, s 234. Maximum penalty 10 years’ imprisonment.
3 New Zealand Police v Dave above n 1, at [4], [6], [7] and [9].
(b)There was actual violence involved.
(c)Mr Dave was in possession of a weapon.
(d)This was a home invasion. The victim was in a place where she should feel safe.
(e)Mr Dave abused a mutual friendship.
(f)The extent of the harm to the victim. This was not just the physical injuries that she suffered. Her victim impact statement showed that she felt extremely upset emotionally and lived in fear due to Mr Dave’s actions.
(g)There was premeditation, although at a lower level.
(h)Mr Dave’s previous convictions. The Judge noted that Mr Dave is 65 years’ old. He had a total of 81 criminal convictions. There were 21 previous convictions for dishonesty, 15 for violence, and many others including possession of weapons and threatening.
[9] The Judge concluded that the appropriate starting point for the offence was a sentence of imprisonment of four years and six months. He applied no uplift.4
[10] Mr Dave pleaded guilty a month prior to trial. As a result, the Judge applied a 15 per cent discount.5
[11] No discount was allowed for remorse. Although Mr Dave had expressed remorse for his offending, as he had engaged in offending of a similar type over many years, the Judge did not accept that there was any genuine remorse.6
4 At [11].
5 At [8].
6 At [8].
[12] On the other hand, the Judge noted that Mr Dave had made some rehabilitative efforts, which he took into account.7
[13] The Judge also noted that the pre-sentence report records that Mr Dave’s offending-related factors are his unstructured lifestyle, financial difficulties, violence, poor judgement, poor problem-solving, mental health and attitudes towards the law.8
[14] The Judge said that Mr Dave self-reported as being bipolar and had said that he was not taking his medication. The Judge said that, if Mr Dave did have an issue, then he needed to take his medication. The Judge said that there was some evidence of mental health and addiction issues, along with a family background that is likely to have a causative connection with the offending. However, he considered that the relevance of this was lessened by the fact that he continues to offend.9
[15] The Judge allowed reductions of 15 per cent for Mr Dave’s guilty plea, five per cent for some rehabilitative efforts and 10 per cent for Mr Dave’s background — a total reduction of a 30 per cent.10
[16] Accordingly, the Judge sentenced Mr Dave to three years and two months’ imprisonment.11
Appeal principles
[17] Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow the appeal if satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
7 At [8].
8 At [10].
9 At [10].
10 At [12].
11 At [13].
[18] When reviewing a sentence on appeal, it must be shown that the sentence is manifestly excessive or wrong in principle, or there must be exceptional circumstances.12 The focus is not on the process by which the sentence was reached, but on the correctness of the end result. In making this assessment, the Court does not interfere with the legitimate exercise of judicial discretion or indulge in mere tinkering with the sentence.13
The appeal
[19] Mr Dave submits that the sentence is manifestly excessive because the starting point of four-and-a-half years’ imprisonment was excessive and insufficient discounts for his personal circumstances were applied.
[20] He submits that the correct starting point is three-and-a-half years and that he should have received a further reduction of 15 per cent for his mental health.
The starting point
[21] As I have said, the Judge considered the appropriate starting point was four years and six months.
[22] Ms Jenkin for Mr Dave contends this was excessive. She says the most analogous cases are Norman v R and Rickard v Police. She submits a starting point of three-and-half years is appropriate.
[23] Ms Jordan for the Police submits the starting point adopted by the Judge was well within the appropriate range. She says the most analogous cases are R v Ha’apai and Heteraka v R.
12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [31], citing Te Aho v R
[2013] NZCA 47 at [30].
13 Ngawati v New Zealand Police [2022] NZHC 2156 at [6].
Norman v R
[24] In Norman v R,14 the defendant and her partner went to the victim’s house where she lived with her three children. The victim knew the defendant and was let into the house by her three-year-old child. The defendant asked the victim for gear or cash, and argued with the victim, refusing to leave. When the victim asked her daughter to get her phone to call the Police, Ms Norman lunged at the victim, grabbed her hair and pulled her to the ground. She then stomped on the victim’s body, face and back in front of the children. During the attack, the defendant’s partner was close to the victim’s head and said, “we just want $250.” The offenders took her cell phone and purse.
[25] The sentencing judge identified the aggravating factors of the offending as the serious violence inflicted, the refusal to leave the victim’s home when asked, the presence of the victim’s children, and that the defendant acted in concert her partner.15 He adopted a starting point of two years and 10 months’ imprisonment.16 Eaton J did not disturb the starting point on appeal and considered it was at the “upper level of the appropriate range.”17
[26]Ms Jenkin submits that Mr Dave’s offending is comparable to that in Norman:
(a)Both cases involved an element of home invasion of a known victim.
(b)The victim in Norman was vulnerable because she was the only adult in the home with three young children, while the victim in this case was vulnerable because of her age.
[27] Conversely, Ms Jordan says the offending in Norman was less serious than in this case:
(a)The offending was not a case of home invasion. The offenders lawfully entered the house and later refused to leave.
14 Norman v R [2022] NZHC 808.
15 At [15].
16 At [16].
17 At [30].
(b)There was no weapon.
(c)While children were present, the victim herself was not vulnerable.
(d)The violence was not significantly greater — considering the vulnerabilities of the victim in this case, pushing an elderly woman to the ground can, and in this case did, cause significant injuries, similar to that of the bruising to the victim in Norman.
Rickard v Police
[28] In Rickard v Police,18 the defendant, together with three co-offenders, approached a 63-year-old woman in a supermarket car park. One of the group pushed her from behind, causing her to fall onto her car. The group took her purse containing cash and credit cards.
[29] The sentencing judge adopted a starting point on the robbery charge of three- and-a-half years’ imprisonment.19 On appeal, Harrison J reduced the starting point two-and-a-half years. He considered the aggravating factors included the use of force on a vulnerable, older victim, premeditation, and violence.20
[30] Ms Jenkin says Mr Dave’s offending is slightly higher in gravity than in Rickard. The offending in Rickard involved greater premeditation and the offenders had targeted vulnerable women as a group. However, the robbery did not involve a home invasion and the defendant denied being the person who physically assaulted the victim.
[31] Ms Jordan agrees the offending in Rickard was less serious than in this case for the following reasons:
(a)There was no home invasion.
18 Rickard v Police HC Auckland CRl-2009-404-70, 30 April 2009.
19 At [2].
20 At [17].
(b)The victim did not suffer any injuries.
(c)The victim was 20 years younger than the victim in this case.
(d)The defendant denied being the offender who physically assaulted the victim.
Ha’apai v R
[32] In Ha’apai v R,21 the defendant observed the victim, an 85-year-old woman who required a frame to walk, withdraw several thousand dollars at a bank. The defendant followed the victim and her son home and approached her outside when her son was inside. The defendant pushed the victim to the ground and took her purse. She suffered a broken nose, a grazed swollen forehead, two broken bones in her right hand, and bruising and swelling to her left hand.
[33] The sentencing judge adopted a starting point of six years’ imprisonment.22 On appeal, the Court of Appeal considered the starting point adopted was “stern but not outside the available range”.23 The Court considered there were aggravating factors of planning and premeditation, there being an associate offender waiting in a getaway vehicle, the victim being vulnerable, and there being actual violence, reasonably serious injuries and a reasonably significant value of items taken.24
[34] Ms Jordan submits the offending in Ha’apai and this case are comparable for the following reasons:
(a)Both cases involved a level of premeditation, albeit more so in Ha’apai.
(b)Both cases involved a similar level of victim vulnerability, being women in their 80s.
21 R v Ha’apai CA294/05, 2 May 2006.
22 At [12].
23 At [29].
24 At [28].
(c)While the injuries suffered by the victim in Ha’apai were more serious, that is a matter of chance given the age and frailty of elderly victims and where they were attacked (outside as opposed to indoors).
[35] Ms Jordan also says Mr Dave’s offending is more serious than in Ha’apai for the following reasons:
(a)Mr Dave had a weapon.
(b)The offending occurred in the victim’s home as opposed to outside.
(c)The victim was known to Mr Dave. He breached her trust.
[36] In these circumstances, Ms Jordan suggests Mr Dave’s offending is similar to, but moderately less serious than, that that in Ha’apai.
[37]Ms Jenkin says the offending is less serious than that in Ha’apai:
(a)Mr Dave brought no associate with him ready to make a quick getaway, indicating lesser planning and premeditation.
(b)The victim in Ha’apai sustained more serious injuries, being pushed onto concrete while already having difficulty walking.
(c)Mr Dave believed the victim owed him money. The victim in Ha’apai
was random.
[38] Ms Jenkin also notes Ha’apai is a decision from 2006. She says the 2022 case of Norman reflects a more appropriate and updated approach to sentencing for robbery.
Heteraka v R
[39] In Heteraka v R,25 the defendant entered a backpackers hostel and knocked on the victim’s door after midnight. The victim, a French tourist, opened the door. The
25 Heteraka v R [2013] NZCA 339.
defendant punched her in the face with a closed fist, said he had a knife and that he would not hesitate to kill her, punched her several more times, covered her mouth and nose with sheets so she could not breathe, and punched her several more times. He said again he would kill her if he had to, and that he wanted money. He took the victim’s laptop, ID and driver licence, credit cards, and cash. A starting point of five years was undisturbed on appeal.26
[40] Ms Jordan submits the offending in Heteraka was moderately more serious than in this case. She says there was a greater degree of violence in Heteraka, but there was a more serious home invasion element and a far more vulnerable victim in this case.
[41] Ms Jenkin submits that the offending in Heteraka was significantly more serious than in this case. While the victim was younger, she was vulnerable due to being a solo backpacker in a foreign country, alone, at night. The robbery took place in her hostel room where she should have been safe. The violence inflicted on her was significant and her life was repeatedly threatened, including by Mr Heteraka claiming he had a knife.
Discussion
[42] I agree with the Judge that the aggravating factors present in Mr Dave’s offending are:
(a)Vulnerability — the victim was an 82-year-old woman who lived alone.
(b)Home invasion — Mr Dave pushed his way into the victim’s home.
(c)Violence — Mr Dave pushed the victim to the ground and into the living room. She suffered sustained a graze to her right arm, bruising to her right wrist and bleeding from her mouth.
(d)Abuse of trust — the victim was known to Mr Dave.
26 At [28].
(e)Weapon — Mr Dave was holding a long object when he arrived at the victim’s house, although, he did not use it to harm the victim.
(f)Premeditation — although, to a lower degree than other cases.
[43] Accordingly, I consider Mr Dave’s offending was more serious than that in Norman and Rickard. While the level of violence was not as great as in Norman and Mr Dave did not act with co-offenders as in Rickard, the victim was more vulnerable. She was an 82-year-old woman who should have been safe in her home. Mr Dave pushed his way into the house, uninvited and armed with a weapon. I agree with Ms Jordan that the breach of trust element of Mr Dave’s offending increases the seriousness.
[44] On the other hand, I consider Mr Dave’s offending to be less serious than that in Ha’apai and Heteraka v R. While the victims in Ha’apai and this case were a similar age, and the victim in Ha’apai was attacked outside as opposed to in her home, the victim in Ha’apai suffered more severe injuries, and there was a greater level of premeditation in that offending. There was a greater degree of violence in Heteraka and the victim was repeatedly threatened. I also accept Ms Jenkin’s submission that the approach taken in Norman is a more appropriate and updated approach to sentencing for robbery.
[45] The conclusion I have reached is that a starting point of four years’ imprisonment would be appropriate, given the aggravating features I have outlined.
Previous convictions
[46] I note that, in reaching a starting point of four-and-a-half years’ imprisonment, the Judge considered Mr Dave’s previous convictions to be an aggravating feature of the offending. The correct approach under the two-stage Moses sentencing methodology is that previous convictions constitute an aggravating factor personal to the offender, not an aggravating feature of the instant offending.27 Accordingly, I have
27 Stuart v R [2021] NZCA 539 at [15]; and Felts v Police [2023] NZHC 1612 at [40].
not taken Mr Dave’s previous convictions into account in concluding that four years’ imprisonment is an appropriate starting point.
[47] As the Judge summarised, Mr Dave has a number of previous convictions for dishonesty, violence, possession of weapons and threatening. However, in the District Court, the Police did not seek an uplift for Mr Dave’s previous convictions given the “somewhat historic nature of the more serious offences in his past.” Accordingly, I do not impose an uplift for Mr Dave’s past convictions.
Reduction for mental health
[48] As discussed above, the Judge applied deductions totalling 30 per cent for Mr Dave’s guilty plea, rehabilitative efforts and background. Ms Jenkin says that a further reduction of 15 per cent should have been applied for Mr Dave’s mental health.
[49] As I have said, the Judge said that Mr Dave had self-reported as being bipolar.28 But this was not correct. It is common ground that Mr Dave has been diagnosed with bipolar disorder. Ms Jenkin points to this error by the Judge and says that it resulted in him not applying any reduction for Mr Dave’s mental health.
[50] Ms Jenkin submits that there is a clear causal connection between Mr Dave’s mental health and his offending. There is support for this in Mr Dave’s clinical notes. His diagnosis is long standing. His clinical notes suggest that, when he is in a manic state, his emotional dysregulation can manifest in violence.
[51] Ms Jordan acknowledges that the Judge was in error when he said that Mr Dave’s bipolar disorder was self-reported. But she does not accept that this resulted in any error in the reduction applied. She refers to the following paragraph in the Judge’s decision:29
Your offending-related factors are identified as an unstructured lifestyle, financial difficulties, violence, poor judgement, poor problem-solving, mental health, and attitudes towards the law. You are self-reported as being bipolar and say you are not taking your medication. If you do have an issue, then you do need to take your medication. There is some evidence of mental health and
28 New Zealand Police v Dave, above n 1, at [10].
29 At [10].
addiction issues, along with a family background that is likely to have a causative connection with this offending, but that is lessened by the fact that you continue to offend.
[52] Ms Jordan submits that the discount of 10 per cent for “the causative factors” of Mr Dave’s background included his mental health.
[53] She also notes that Mr Dave has said that, at the time of the offending, he was not taking his medication and that the periods of time in which he has not offended were as a result of him having taken his medication. Ms Jordan submits that the Judge was correct to give Mr Dave’s mental health less weight when he was aware that he offended when he failed to take his medication and yet he had failed to take his medication at the time the offending occurred.
[54] Finally, Ms Jordan submits that, even if a further modest reduction was appropriate for Mr Dave’s mental health, to apply a reduction on appeal would amount to tinkering.
[55] As I have said, Mr Dave’s clinical notes confirm his bipolar disorder can manifest in violence when he is in a manic state. But I also think the Judge was correct to afford his condition less weight when he had not been taking his medication. There is also no direct evidence that his bipolar disorder played a causative role in this offending. At the same time, I accept it is a relevant factor and could also make a sentence of imprisonment more difficult.30 I consider a discount of 15 per cent for Mr Dave’s background and bipolar diagnosis is appropriate.
Conclusion
[56] My conclusion is that an appropriate end sentence for Mr Dave is one of two years and four months’ imprisonment. This is calculated by taking a starting point of four years’ imprisonment and applying discounts of 15 per cent for Mr Dave’s guilty plea, 15 per cent for Mr Dave’s background and bipolar disorder, and five per cent for Mr Dave’s rehabilitative efforts.
30 Gemmell v R [2023] NZCA 420 at [22] and [44].
[57] Accordingly, I consider the Judge’s end sentence of three years and two months’ imprisonment was manifestly excessive.
Result
[58]The appeal is allowed.
[59] The sentence of three years and two months’ imprisonment is quashed. A sentence of two years and four months’ imprisonment is substituted.
Blanchard J
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