Heihei v Police - [2025] NZHC 589

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2025-488-000021

[2025] NZHC 589

BETWEEN
NICKY HEIHEI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 20 March 2025

Counsel:

JPR Scott for Appellant

AJ Goodwin for Respondent

Judgment:

20 March 2025

ORAL JUDGMENT OF DOWNS J

Solicitors:
Crown Solicitor, Whangārei. Thode Utting, Auckland.

HEIHEI v POLICE [2025] NZHC 589 [20 March 2025]

[1] Nicky Heihei committed seven dishonesty offences between February and December 2024:

(a) Shoplifts (over $1,000) (x 2). (b) Shoplifts ($500 - $1,000) (x 2).
(c)Wilful damage.

(d)Unlawfully takes a motor vehicle.

(e)Unlawfully got into a motor vehicle.

[2] Judge T Bayley imposed a 22-month term of imprisonment.1 A term of home detention was not readily available as Mr Heihei had, while on electronically monitored bail for the offending, cut off his bracelet and absconded.

[3] Mr Heihei appeals his sentence. The appeal must be allowed if there is an error in the sentence and a different one should be imposed.2

[4]The background is conveniently captured by the Judge’s sentencing remarks:3

On 20 February last year, you stole tools valued at $1,784.30 at Repco. On 7 March, you stole Adidas clothing valued at $500 from Rebel Sport. On 6 April, you damaged a glass cabinet at a retailer and stole sunglasses valued at $3,609. On 7 April, you unlawfully took a trailer from a private address in Whangārei. On 28 October, you unlawfully got into a motor vehicle which was valued at $5,500. There was a short police chase that resulted following that offending. In respect of your other offending, earlier on 10 April 2024, you stole clothing valued at $847.77 from Cotton On in Whangārei. In respect of that offence, you were found in some of the clothing later and with a pair of sunglasses, that you had stolen earlier from another retailer, on your head.

I have read the pre-sentence report. I must say it makes for some pretty sad reading, Mr Heihei. You say you were stealing to fund what was quite an entrenched, or had been at that time an entrenched, methamphetamine habit. You have been using methamphetamine from a very young age, having been introduced to it, effectively, by a very close family member. When I look at

1      Police v Heihei [2025] NZDC 3801.
2      Criminal Procedure Act 2011, s 250(2).
3      Police v Heihei, above n 1, at [2]–[3].

your prior history, most of it is for dishonesty. Because of that, and because of the number of offences for which you appear for sentencing today, you are currently assessed as being a high risk of offending in the future.

[5] On behalf of Mr Heihei, Mr Scott contends the overall starting point of 24 months’ imprisonment was too severe. Mr Scott advances two points in support of the major one. First, he argues the theft of the trailer should not have attracted a starting point of 10 months’ imprisonment, but a lower starting point…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Heihei v Police

Details

AGLC: Heihei v Police [2025] NZHC 589
Case: [2025] NZHC 589
Decision Date: 20 March 2025

CaseChat Overview and Summary

In the case of Heihei v Police, the appellant, Nicky Heihei, challenged the severity of a 22-month term of imprisonment imposed by Judge T Bayley for seven dishonesty offences committed between February and December 2024. These offences included multiple instances of shoplifting, wilful damage, and unlawfully taking a motor vehicle. The sentencing judge had determined that a term of home detention was not readily available due to Mr Heihei's prior conduct of cutting off his electronically monitored bail bracelet and absconding.

The primary legal issues before the court were whether the starting point for the sentence was too severe and if the sentencing judge erred by not sufficiently adjusting the global starting point for the totality of the offences and Mr Heihei's background. Mr Scott, counsel for the appellant, argued that the starting point for the theft of the trailer should have been lower and that the judge should have applied a greater discount for totality and background. The respondent, represented by counsel AJ Goodwin, contended that the sentence was appropriate given the nature and number of offences and the appellant's criminal history.

The court considered the precedent set by Henriksen v Police, where a similar theft of trailers resulted in a sentence of 12 months' imprisonment. Despite Mr Scott's arguments, the court found no error in the judge's handling of the starting point and totality. The court held that the sentence, while taking into account Mr Heihei's unfortunate upbringing, was not manifestly excessive given his repeated offending and the significant impact on victims. The appeal was ultimately dismissed as the sentence was deemed commensurate with the circumstances of the case.

Orders