Haerewa v The King
[2025] NZHC 1870
•10 July 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2025-404-245
[2025] NZHC 1870
BETWEEN KALEB HAEREWA
Appellant
AND
THE KING
Respondent
Hearing: 30 June 2025 Appearances:
S Brickell for Appellant
R N Benic and A F Afzaly for Respondent
Judgment:
10 July 2025
JUDGMENT OF WILKINSON-SMITH J
This judgment was delivered by me on 10 July 2025 at 10 am.
………………………… Registrar/Deputy Registrar
Solicitors/Counsel:
S Brickell, AucklandMeredith Connell, Auckland
HAEREWA v R [2025] NZHC 1870 [10 July 2025]
Introduction
[1] Mr Haerewa appeals against a sentence of 10 months’ imprisonment imposed by Judge B A Gibson in the Auckland District Court in respect of one charge of assault with intent to injure.1 The sentence was cumulative on a two-year sentence of imprisonment imposed in the High Court for unrelated drug and property offending.
[2]The grounds of the appeal are that the sentencing Judge erred by:
(a)uplifting the starting point on account of the previous history;
(b)not considering and allowing a discount for relevant personal mitigating circumstances; and
(c)not making an adequate totality adjustment.
[3] The respondent opposes the appeal and submits that even if the Judge erred in uplifting the starting point for previous history, a commensurate uplift was available for offending on bail. The credit for mitigating factors and the totality adjustment was appropriate. The respondent submits that the resulting end sentence when considered across both sets of offending was not manifestly excessive.
The offending
[4] On 1 January 2024, just after 5 am, Mr Haerewa, the co-offender, and a female associate were in the Auckland CBD. The female complainant was in the same area with her friends including one friend who was 38 weeks’ pregnant. Mr Haerewa’s companions advanced on this group but an argument between the two ensued. Mr Haerewa tried to separate them. A verbal altercation began between the two groups. The complainant stepped in front of Mr Haerewa. Mr Haerewa and the complainant argued. The complainant told Mr Haerewa to get back into his car and “fuck off”. Mr Haerewa struck her face with such force that it knocked her to the ground rendering her unconscious. Mr Haerewa says that the female complainant spat
1 R v Haerewa [2025] NZDC 10143.
at his partner. That does not appear in the summary of facts but was not disputed by the respondent.
[5] The co-offender threatened the pregnant woman with an imitation firearm before dropping it on the ground. Mr Haerewa picked the imitation firearm up before the group left.
[6] The complainant was knocked unconscious for approximately three minutes and suffered a concussive head injury requiring hospital admission.
The sentencing decision
[7] The Judge began by noting that Mr Haerewa was 24 years of age at the time of sentencing and that the incident involving the two groups occurred on New Year’s Day. The Judge said that whatever happened led Mr Haerewa to commit a serious assault on one of the complainants in this matter. The Judge recognised that the assault on the pregnant woman was carried out by the co-offender. The Judge specifically noted that Mr Haerewa was being sentenced for the assault on the complainant and not on the pregnant woman. The Judge said that Mr Haerewa has a modest criminal history in New Zealand, having been returned from Australia. Within that record, only one conviction was in respect of an assault but that was against a police officer.
[8] Mr Haerewa said that he was under the influence of alcohol and drugs and the pre-sentence report noted that Mr Haerewa could not hold his temper. The Judge set out the claim that complainant had spat on Mr Haerewa’s partner which angered him. The Judge accepted that the complainant and her group may well have been drunk but said that fact does not mitigate Mr Haerewa’s behaviour.
[9] The starting point sought by the Crown was a sentence of between 16 and 18 months’ imprisonment. The Judge referred to the guideline case of Nuku v R, and noted the aggravating features as an attack to the head, the injuries suffered (albeit they did not appear to have been permanent) and what the Judge regarded as extreme
violence — namely the knocking out of a female.2 The starting point was not contested, and the Judge said it was within the range envisaged by Nuku. The Judge took a starting point of 18 months’ imprisonment and uplifted that by one month for previous history. A discount of 10 per cent was allowed for a guilty plea. The Judge accepted that Mr Haerewa’s background may well have provided a nexus for the offending and allowed 10 per cent for personal factors, saying that, had Mr Haerewa not suffered poverty, a deprived background and parents who separated when he was young, he may not have been led down the path that he has been. The end sentence arrived at was 15 months’ imprisonment. The Judge then turned to consider totality noting that Harvey J sentenced Mr Haerewa to two years’ imprisonment on drugs charges on 11 April 2025 and the sentence imposed in the District Court would be cumulative on that. The 15-month sentence was reduced to a sentence of 10 months’ imprisonment cumulative on the existing sentence of two years’ imprisonment.
The approach on appeal
[10] An appellant may appeal against sentence as of right under s 244 of the Criminal Procedure Act 2011.
[11] An appeal against sentence must be allowed if an appellate court is satisfied that for any reason there is an error in the sentence imposed and that a different sentence should be imposed.3 In any other case the appellate court must dismiss the appeal.4 Sentencing is not a science, and an appellate court will not intervene unless the end sentence is outside the range available to the sentencing Judge.5 An appellate decision is focused on the end result rather than the process by which the end sentence was reached.6
[12] When allowing an appeal on the basis that there was an error in the sentence imposed, the appellate court may: set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate, vary the sentence or any
2 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
3 Criminal Procedure Act 2011, s 250(2).
4 Section 250(3).
5 Palmer v R [2016] NZCA 541 at [17] citing Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].
6 Kumar v R [2015] NZCA 460 at [81].
part of the sentence or any condition of sentence, or remit the sentence to the court that imposed it.
[13] The appellate court does not start afresh or simply substitute its own opinion for that of the sentencing Judge, rather it must be shown that there was an error, whether intrinsically or because of additional material submitted on appeal, that affects the appropriate outcome.7 The Court will not intervene where a sentence imposed is within a range that could be properly justified by accepted sentencing principles.8
Discussion
[14] The appellant submits that the Judge erred in uplifting the starting point on the basis of Mr Haerewa’s previous history given that the previous relevant history consisted of only one conviction for assault on police where a sentence of community work was imposed. In fact, Mr Haerewa has other convictions that also indicate a potential issue with alcohol and have some relevance.
[15] The appellant complained that the sentencing Judge took a starting point at the very highest end of the available range and then applied credits or discounts at the lowest available level.
[16] The Crown accepted that the uplift for previous criminal history was not justified but submitted that the offending was committed on bail and an uplift for that was justified. The starting point of 18 months’ imprisonment was not disputed at the sentencing hearing. An uplift for one month to reflect the fact that the offending occurred on bail is unremarkable and while that would have occurred at the end of the process, it would have made no difference after rounding occurred.
[17] I agree that an uplift of one month was available and should properly have been described as an uplift for offending whilst on bail rather than an uplift for previous history but that error, if it was an error, has not led to a manifestly excessive sentence.
7 R v Shipton [2007] 2 NZLR 218 (CA) at [138].
8 Tutakangahau v R, above n 5, at [36].
[18] The appellant also complains that the District Court Judge did not apply the same credits as applied by Harvey J in the High Court when sentencing on the drug offending. Harvey J allowed:9
(a)a 10 per cent discount for the appellant’s youth and rehabilitative prospects;
(b)a five per cent reduction for the impact of incarceration on the appellant’s Tamariki; and
(c)a four-month reduction for time spent on electronically monitored (EM) bail.
[19] Judge Gibson was invited to impose the same discounts and it is said that they apply equally to this offending. I disagree so far as the four-month reduction for time spent on EM bail is concerned.10 Obviously that reduction had already been applied in respect of the drug offending and could not be applied twice.
[20] A discount for youth was potentially available although at 23 the appellant is pushing the limits of such a discount. Likewise, a small reduction to recognise the impact of incarceration on Mr Haerewa’s family, particularly his partner who is now pregnant with their second child, was also available. The potential element of provocation, if it is accepted that the complainant spat at Mr Haerewa’s partner, could have attracted a small discount.
[21] The discount for guilty plea reflected the fact that the guilty plea was entered close in time to trial. The appellant says it was entered at the earliest possible opportunity following the amendment of charge and saved the complainant and other witnesses from giving evidence.
[22] Mr Haerewa was charged with injuring with intent to injure on 26 January 2024. He pleaded guilty on 28 January 2025 to an amended charge of
9 R v Haerewa [2025] NZHC 920 at [43].
10 See where the reduction was applied in R v Haerewa, above n 9, at [41]–[42].
assault with intent to injure. In Hessell v R, it was said that where the Crown accepts a plea to a lesser charge, that in itself can be a concession and a full guilty plea discount may result in an improper sentence.11 The level of guilty plea discount in the end was properly considered by the sentencing Judge and I cannot say that 10 per cent was not available.
[23] I agree with the Crown that the focus in sentence appeals remains very much on the end sentence and not the process by which it was reached. As the Court of Appeal identified in Tutakangahau v R, the Court will not intervene where a sentence is in within the range that can properly be justified by accepted sentencing principles.12
[24] The sentence imposed by Judge Gibson could be described as stern, however as the respondent submits, Mr Haerewa was for sentence for an assault to the head of a woman which left her unconscious for several minutes. I do not agree that the assault was necessarily unprovoked, but Mr Haerewa’s response was completely out of all proportion and dangerous. Attacks to the head of this nature can have serious consequences and there is a good argument that the requirements of denunciation and deterrence justify a stern response. The additional factor of an attack by a male to the head of a female clearly weighed on the mind of the sentencing Judge and I do not think that that is an inappropriate consideration. The offence for which Judge Gibson sentenced Mr Haerewa was entirely different in kind to the offending for which Harvey J sentenced Mr Haerewa. A cumulative sentence was clearly required and although an adjustment for totality was appropriate, that sentence still had to recognise the seriousness of the assault carried out by Mr Haerewa.
[25] The focus must be on whether the overall sentence of imprisonment was out of proportion to the overall gravity of the offending as a whole. Mr Haerewa’s offending entailed serious drug, property, and violence offending. All of the offending occurred on bail. The undisputed available starting point for the offending taken together was in excess of six years’ imprisonment. An end sentence of two years and 10 months’ imprisonment cannot be said to be manifestly excessive.
11 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607, (2010) 24 CRNZ 966 at [62].
12 Tutakangahau v R, above n 5, at [30].
[26]The appeal is dismissed.
Wilkinson-Smith J
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