Hill v Police - [2025] NZHC 544

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…

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 Hill v Police

Details

AGLC: Hill v Police [2025] NZHC 544
Case: [2025] NZHC 544
Decision Date: 10 March 2025

CaseChat Overview and Summary

In the High Court of New Zealand, Zhivago Hill appealed against a 26-month imprisonment sentence imposed by Judge S Bonnar in the Auckland District Court, arguing it was manifestly excessive. Hill's counsel contended that the five-month uplift for prior convictions and offending while on bail was inappropriate and should have been three months, and that the three-month reduction for personal background factors, including mental health issues, was insufficient and should have been 15 to 20 per cent. Becroft J concluded that the appeal must fail, as the sentence was not manifestly excessive and the uplift and reduction were within the range permitted for a sentencing judge. The court found the Judge's sentencing structure appropriate, and that the five-month uplift for previous convictions and offending while on bail, along with the three-month reduction for mental health and background factors, were both within the acceptable range. The overall sentence of 26 months' imprisonment was deemed appropriate in all the circumstances.

The court considered the nine offences to which Hill pleaded guilty, including receiving a stolen motor vehicle, using a forged document, two burglaries, theft, an indecent act with intent to assault, unlawfully taking a motor vehicle, failing to comply with a lawful requirement imposed by an enforcement officer, and driving in a dangerous manner. The court noted that Hill had a significant history of dishonesty offences, including previous convictions for being unlawfully in a building and indecent assault, and that most of his instant offending occurred while on bail. The court also acknowledged Hill's mental health history and drug use issues, but found that the Judge's consideration of these factors was appropriate and within the permissible range.

The court held that the end sentence was within the range and not manifestly or plainly excessive. The appeal was dismissed, and the sentence of 26 months' imprisonment was confirmed.

Orders