Hill v Police
[2025] NZHC 544
•10 March 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-702 [2025] NZHC 544
BETWEEN ZHIVAGO HILL
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 10 March 2025 Appearances:
H Woo for Appellant
V Sudhakar for Respondent
Judgment:
10 March 2025
ORAL JUDGMENT OF BECROFT J
[Appeal against sentence]
Solicitors:
Meredith Connell, Auckland H Woo, Auckland
HILL v NEW ZEALAND POLICE [2025] NZHC 544 [10 March 2025]
What this appeal is about
[1] Mr Zhivago Hill appeals against a sentence of 26 months’ imprisonment imposed by Judge S Bonnar KC in the Auckland District Court on 26 November 2024.
[2]The charges to which he had pleaded guilty, were:
(a)receiving (over $1000);1
(b)using a forged document;2
(c)burglary (x 2);3
(d)theft (under $500);4
(e)indecent act with intent to assault;5
(f)unlawfully taking a motor vehicle;6
(g)failing to comply with lawful requirement imposed by enforcement officer;7 and
(h)driving in a dangerous manner.8
[3] Mr Hill’s appeal, well and precisely argued by Mr Woo, is that the sentence is manifestly excessive. In that context, Mr Woo raises two particular issues:
(a)First, that the uplift of five months imposed by the Judge for Mr Hill’s previous convictions and offending while on bail is inappropriate and should only have been three months.
1 Crimes Act 1961, ss 246 and 247. Maximum penalty: seven years’ imprisonment.
2 Section 257. Maximum penalty: 10 years’ imprisonment.
3 Section 231. Maximum penalty: 10 years’ imprisonment.
4 Sections 219 and 223(d). Maximum penalty: three months’ imprisonment.
5 Section 126. Maximum penalty: two years’ imprisonment.
6 Section 226. Maximum penalty: seven years’ imprisonment.
7 Land Transport Act 1998, s 52(1)(c). Maximum penalty: $10,000 fine.
8 Section 35(1)(b). Maximum penalty: three months’ imprisonment or $4,500 fine.
(b)Second, that the reduction of three months’ imprisonment (about 10 per cent) for his personal background including his previous mental health history was insufficient and should have been 15 to 20 per cent— that is a reduction of up to six months’ imprisonment.
[4] I have reached a clear view about this matter during counsels’ arguments. I have concluded that this appeal, with respect, must fail.
[5] The end sentence is not manifestly excessive. The two issues identified by Mr Woo, on the one hand a too higher uplift and, on the other hand, a too lower reduction are both within the range permitted for a sentencing Judge. I should not disturb them. I am satisfied that the overall sentence of 26 months’ imprisonment, in all the circumstances, is also very much within the range and it is not manifestly or plainly excessive.
Mr Hill’s offending
[6] At this point it will be helpful to set out the nine offences to which Mr Hill pleaded guilty. They are set out in Judge Bonnar’s decision and are not essentially disputed by Mr Woo. I repeat the Judge’s summary:
[2] First, there is a charge of receiving a motor vehicle, valued at $15,000. The victim had taken his vehicle to a Newmarket car yard for repair. It was stolen from the mechanic’s yard. At around 8 pm on 11 August, Police saw the vehicle and conducted a stop. You were a passenger in the vehicle. You told the Police that you had been approached by an unknown male at around 2 o’clock that afternoon, 11 August, and you had paid $2,800 cash for the car. You said you had brought it from a “random dude” outside the Mount Roskill Cash Converters: “The guy had the keys so I thought he was the rightful owner.”
[3] The second offence by date is using a forged document. On 22 August you were at an ASB Bank in Queen Street. You presented a bank statement which had been altered, using whiteout fluid, to change the name. You attempted to withdraw money from the account using the altered document.
[4] You first appeared in Court in relation to any of these matters on 25 August 2023. So, all the subsequent offences I am going to refer to now were committed while you were already before the Court or on bail.
[5] The third offence is a burglary, committed by you on 22 September 2023. The burgled premises is a building that houses many businesses, including a college. You exited the elevator on level 3, turned left and entered a supply closet. You remained in there for a short time. You were approached by an occupant wanting to know why you were in the building. You left the
supply closet with a plastic bag containing a laptop. The staff member snatched the bag back from you. You were seen filling a blue bag with supplies from the closet. You emptied the supplies out onto the floor when asked.
[6] The next charge is a charge of theft, committed by you on 12 December 2023. You entered some offices in Queen Street in Auckland. You went to a reception area, picked up items, put them inside your bag and entered several meeting rooms before you were removed from the premises by employees. You denied that offence when questioned.
[7] The fifth charge is a charge of doing an indecent act with intent to insult or offend, committed by you on 12 February 2024. You entered a business in Auckland central in the afternoon of that day. You asked the victim if you could buy some clothing off a rack. The victim told you that the items on the rack were not sale. You then asked the victim if she would like to have sex with you. Unsurprisingly, she declined. You started making enquiries about the types of printing work that could be done at the store. The victim provided you with pen and paper and asked you to complete a printing order. You sat down on the floor and began drawing. You drew an image of a naked woman with her genitals exposed and asked the victim if she could arrange for that to be printed on a shirt. You removed a number of $50 notes from your sock and offered the victim $150 to have sex with you. You began licking your lips and groaning in a sexual manner. You moved from the office space into a showroom. The victim followed, in fear of being cornered in the office space. You asked her to pick up a baseball cap from a shelf and, as she did that, you walked towards her. She moved out of the way. When the police spoke to you, you said that you had found the drawing on Karangahape Road and denied giving it to the victim.
[8] Next in sequence is a burglary, committed by you on 23 February 2024. You entered a bus depot in Auckland central at about 10 pm that day and went to a secured counter area, having followed another employee inside. While in the secure area you picked up multiple sets of car keys for depot vehicles. You left the depot with the keys and were confronted by depot staff. You told the police that you had initially gone into the premises looking for work.
[9] Finally, there are three offences committed on 6 April 2024; unlawfully taking a motor vehicle, dangerous driving and aggravated failure to stop. [I understand the Judge meant 6 March 2024].
[10] On the afternoon of 6 March you went to the valet services carpark at Auckland International Airport. You got into a Hyundai vehicle owned by Avis Rentals and drove it out of the carpark.
[11] That evening you were driving the car in Parnell. You noticed Police following behind you. You accelerated away from Police, driving in a dangerous manner and swerving between cars on the motorway. You reached speeds of up to 130 kilometres per hour. Police tried to get you to stop by use of their lights and sirens. You continued to accelerate away and failed to stop. You got off the motorway in Ellerslie and parked the car at the corner of Ladies Mile in Ellerslie where you were apprehended.
Approach on appeal
[7] The Court must allow Mr Hill’s appeal if satisfied that there was a material error in the sentence imposed9 and a different sentence should be imposed. In any other case, the appeal must be dismissed.10
[8] It is well established that the imposition of a “manifestly excessive” sentence constitutes a material error that would justify allowing an appeal. A sentence will be manifestly excessive if it is significantly more severe than it should have been, having regard to the seriousness of the offending and the culpability of the offender.
[9]When determining whether a sentence is manifestly excessive, the focus is on
the end sentence rather than the process by which it was reached.11
[10] It is not for an appellate court to “tinker” with a sentence imposed where the end sentence is within the available range and can be justified by the application of accepted sentencing principles.12 An appeal is not a second opportunity at sentencing.13
The Judge’s sentencing structure
[11]There is no issue with the sentencing structure adopted by Judge Bonnar.
[12] The Judge adopted a starting point of 12 months for the two charges of burglary which he considered the lead offences. That is not challenged. The Judge uplifted that starting point by 18 months for the remaining charges, resulting in an adjusted or final starting point of 30 months’ imprisonment. That also is not challenged.
[13] The Judge then applied a six-month reduction for the guilty plea, or about 20 per cent. That is not challenged.
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
10 Criminal Procedure Act 2011, s 250(3).
11 Noda v R [2024] NZCA 433 at [8].
12 Grey v Police [2023] NZHC 2065 at [20].
13 Polyanszky v R [2011] NZCA 4 at [17].
[14] He applied a further three months reduction, around 10 per cent, for Mr Hill’s personal background factors including his repeated interactions with mental health services and previous mental health history. This is challenged.
[15] And, finally, a five-month uplift for his previous offending and because most of Mr Hill’s instant offending was on bail. That also is challenged.
Was the five-month uplift excessive and/or inappropriate and/or wrong in principle?
[16] Mr Woo immediately concedes that an uplift in these circumstances was justified for both Mr Hill’s prior offending and Mr Hill’s offending while on bail. Mr Woo notes that the Judge does not differentiate within that five-month uplift between allowance for previous convictions and the allowance for offending while on bail. But that is not required. The real issue is whether the five months uplift is too much. Mr Woo submits strongly that it should have been three months.
[17] I start by accepting that, ordinarily, uplifts should be modest and carefully, if not cautiously, imposed. That is to avoid, amongst other things, a risk of double counting and it also ensures focus on the instant offending before the Court.
[18] Mr Woo emphasises that in terms of the offences taken as the lead offence— that is burglary—Mr Hill only had one previous burglary conviction for an offence in 2019 for which he received 15 months intensive supervision. That said, there were five other previous convictions for being unlawfully in a building which is, to a degree, a charge that has some similarity to burglaries. I put it no higher than that.
[19] Mr Woo refers to two cases Tepania v Police14 and Herewini v Police15 where the appellant had 11 previous convictions for burglary and a four-month uplift was not disturbed. Mr Woo submits that by parity of reasoning, here, there could not be an uplift anywhere near that four-month period.
14 Tepania v Police [2013] NZHC 2327.
15 Herewini v Police [2015] NZHC 2807.
[20] That said, Mr Hill has two previous convictions for indecent assault, significant previous shoplifting convictions, and convictions for theft and the like. Judge Bonnar noted that Mr Hill, who I note is about 35 years old, had (he counted) 15 previous dishonesty defences and, as I have said, five offences of being unlawfully in a building. And he noted the indecent assault offences in 2022. He also noted, although it is not before the Court, but I understand is not disputed, an extensive history of offending in Australia involving dishonesty offending, family violence offending, drug offending and public nuisance offending.
[21] Separately, I cannot ignore the offending while on bail. Mr Hill was remanded on bail, I assume with clear conditions designed to reduce his risk of reoffending, as from August 2023, so that all the charges except the receiving of the motor vehicle charge and using a forged document charge were committed while on bail. In my view, this represents a pattern of consistent and chronic flagrant disregard for bail conditions. It must be met with appropriate recognition by way of uplift.
[22] When both the previous convictions and the offending while on bail are considered together, they are significant. The five-month uplift applied by Judge Bonnar, in my view, could not be considered manifestly excessive, inappropriate, nor wrong in principle. Some might consider it near the top end of the range but that is no more than to say different Judges might take a slightly different view to this issue. But it is not to say that the Judge was outside the range. I do not accept that submission from Mr Woo.
Was there sufficient discount for Mr Hill’s mental health and drug issues?
[23] Mr Woo seeks a 15 to 20 per cent “discount” rather than 10 per cent. I observe, and this is no criticism of Mr Woo, that the term “discount”, which now seems normative in the parlance of sentencing, is apt to mislead. It rather suggests that the sentencing process is like entry into a “justice supermarket” where “discounts” or “cheap deals” are available. That undervalues the significance of the sentencing exercise which includes (at this stage) balancing and assessing statutory mitigating features. Much better to see it in that way and call discounts “reductions” or
“recognition” of various statutorily prescribed factors, of which personal circumstances such as mental health is one.
[24] There are two aspects to Mr Woo’s submission. First, that the mental health aspect was not sufficiently recognised. Second, that the substance abuse—particularly drug addiction issues— were not factored into the reduction calculations. What the Judge said on this point is relevant:
[17] I have also read a psychiatric assessment report prepared about you for sentencing. In that report, Dr Jacques concludes that your offences are not driven by any psychotic symptoms or schizophrenia but are more related to your drug use and psychosocial stresses. You have had multiple previous contacts with mental health services and, it appears, previous admissions to psychiatric hospitals in Australia. You have previously been on antipsychotic medications. There are repeated references in Dr Jacques’ report to episodes of psychosis which appear to be linked to drug abuse. You have not been observed to be psychotic in the absence of drug use.
[18] There have been a number of different diagnoses over the years, including schizoaffective disorder, post-traumatic stress disorder, foetal alcohol spectrum disorder, attention deficit hyperactivity disorder and antisocial personality disorder. But Dr Jacques tells me that your persistent and significant substance abuse issues cloud the clinical picture. It is clear that your mental state deteriorates when you use substances and are exposed to stress. Dr Jacques notes, at paragraphs 40 and 47, that your previous diagnoses are controversial. A number of clinicians believe that you do not have a severe and enduring mental illness; rather, your problems are drug induced.
[19] At paragraph 50 Dr Jacques says that your offending is more closely linked to your use of substances rather than the relapse of any mental illness. Your offending behaviour was not driven by psychotic symptoms. Your mental health problems are not of a degree or nature that would make treatment in a psychiatric hospital or detention under the Mental Health (Compulsory Assessment and Treatment) Act 1992 appropriate.
[20] Dr Jacques goes on, at paragraph 52, to say that you are not motivated to change your drug use as you do not see this as a future problem or a treatment need. For that reason you are considered to be a poor candidate for drug abuse treatment.
[21] Dr Jacques concludes that you present with a high and enduring risk of reoffending because of your extensive history of offending, the nature of your substance abuse issues, mental health difficulties, your itinerant lifestyle and other social factors.
…
[31] As a final stage in the process, however, I have to apply an uplift to take account of the fact that a number of these offences were committed while you were on bail and to take account of your previous significant criminal history. I apply a five-month uplift for those factors.
[25] It can be seen, therefore, that the Judge was alert to this matter. Mr Woo had brought it to his attention and the Judge had considered the submission of a 20 per cent reduction. He quoted extensively from the report from Dr Jacques, which is also before this Court and which I will not repeat. Suffice to say, in my view, while the report indicates some form of mental ill health, it does not firmly conclude that there is a significant serious and enduring mental health illness.
[26] Dr Jacques notes Mr Hill’s diagnosis is somewhat controversial and is not supported by all the clinicians who have worked with him. Some clinicians believe that Mr Hill does not have a severe and enduring mental illness; rather his difficulties and recurrent psychotic episodes are drug induced. It is, however, certain (according to Dr Jacques) that Mr Hill does meet diagnostic criteria for substance use disorder and that he abuses multiple psychoactive substances.
[27] These issues are always difficult for a sentencing court. Sentencing courts are never deaf to evidence and submissions relating to a defendant’s mental health concerns. Tragically, and much too often, these issues play a significant role in a person’s offending. The approach that the court should take is undergoing something of an evolution.
[28] Mr Woo is right to point to the relatively recent comments such as in Berkland v R16 as to the importance of background factors such as addiction and deprivation in dispensing individualised justice, and by mitigating sentencing where those factors have contributed causatively to the offending. Such factors are not required to be the operative or proximate cause, but they must have played a role in the offending.
[29] In that respect, here, there is a difficulty which the Judge identified. He was by no means sure that this significant array of offences were each causatively linked or connected to the mental health illness. Rather, it may be that they are seen, as is Dr Jacques’ opinion, as more closely linked to repetitive substance abuse causing psychotic symptoms.
16 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
[30] Here there is no suggestion that Mr Hill’s offending was driven by those symptoms or was the direct result of taking drugs. That is why the Judge adopted a cautious approach. I quite accept there are cases, particularly if clear causative links are established between offending and mental health and drug use, where higher reductions have been made. That other Judges here might have imposed a higher reduction is not determinative of the issue. Other Judges might not. All that indicates is that there is a range within which Judges operate and which is permissible. In my view, the 10 per cent or three-month reduction here is within that range, although at the bottom of it.
[31] It is also clear that the Judge wished to give Mr Hill as much credit as possible for personal background factors including repeated interactions with mental health services and previous mental health history. That, of course, would include the drug use which was clearly before the Judge in terms of the report.
[32] Ms Sudhakar for the Crown has carefully addressed all of Mr Woo’s submissions and, in my view, her answers, which effectively mirror my conclusions, are well made.
[33] I have reached the clear view that, in particular, while the reduction for mental health and background factors was the minimum that could have been given, it was not outside the range, and it must be considered in the circumstances of this case to have been appropriate.
Conclusion
[34]The end sentence in any case, is very much within the range.
[35] As a final point, I note that Mr Woo did not mention what might be called the “elephant in this sentencing room”. That is, a sentence of two years two months’ imprisonment virtually invites an appeal to bring it within the realm of home detention. Mr Woo did not make a specific submission that if the sentence was to be reduced, then leave to apply for home detention should be given. Nevertheless, it would be a matter that I would have been obliged to consider.
[36] In the absence of specific submissions, I do observe as a preliminary view, that had the sentence been reduced to two years’ imprisonment or less, leave to apply for home detention would have been inappropriate. I say that because it would have been quite contrary to the principles of accountability and deterrence, particularly taking into account that seven sets of offending took place while Mr Hill was on bail.
[37] There is a previous conviction of failing to comply with an order and a breach of conditions of intensive supervision. In all the circumstances, home detention would have been plainly inappropriate and wrong in principle. I would not have granted leave to Mr Hill to apply for it.
[38]The sentence must stand. I confirm it. The appeal is dismissed.
Becroft J
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