Heihei v Police
[2025] NZHC 589
•20 March 2025
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 of say eight months. Second, Mr Scott contends the Judge should have mitigated the global starting point for totality. The Judge declined to do so. Mr Scott argues that was an error. Mr Scott also argues the Judge should have discounted the starting point by more than 10 percent for Mr Heihei’s unfortunate background.
[6] I begin with the starting point. The case of Henriksen v Police,4 identified by Mr Goodwin on behalf of the respondent, is analogous. Mr Henriksen stole two trailers. Lang J held the sentence of 12 months’ imprisonment was available. Mr Heihei stole one trailer rather than two, but he threatened the owner in the course of its taking. That aggravated the offending.
[7] In relation to totality, it is important to bear in mind that an adjustment is not automatic. The principle actually has two aspects. First, a recognition that the components of a sentence should reflect the gravity of the offending in relation to each component. Second, and a typically qualifying principle, is that the effect of cumulative sentences derived necessarily by arithmetic, does not result in a grossly or unfairly disproportionate outcome.
[8] Despite Mr Scott’s argument to the contrary, I am not persuaded the Judge erred in relation to totality. Mr Heihei committed a variety of offending. Some of the goods taken had not insignificant value. It is also important to bear in mind offending of this nature has real victims.
[9] In relation to the discount for Mr Heihei’s background, more can be said for Mr Heihei. It is apparent his upbringing was unfortunate. It is also clear that upbringing has affected Mr Heihei in a variety of ways, including in manners that do
4 Henriksen v Police [2015] NZHC 2572.
not conform to the social compact. But, as against this, it must be remembered that there is an element of discretion, or perhaps better called evaluation, to this aspect of sentencing. Appeal courts must be careful not to presuppose that there is only one figure available in relation to a discount, almost always the correct position is that there is an appropriate range. Another Judge might have offered Mr Heihei a greater discount as appears to have happened in the past, but it does not follow the Judge’s assessment was wrong.
[10] The other factor in this mix is this: Mr Heihei has a very significant criminal history. He has committed offences of this nature again and again. It is distinctly arguable that some doctrine of attenuation in relation to background applies.
[11] But, most importantly in this context, the overall concern is whether the sentence is manifestly excessive. Standing back, I am unable to conclude it is. The offending spanned many months. It involved goods of some value. Mr Heihei has an unfortunate background, but he also has a very bad history. The sentence is commensurate with all of the circumstances.
[12]For these reasons, the appeal must be dismissed.
……………………………..
Downs J
2