Hira v Police

[2025] NZHC 2895

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2025-409-205

[2025] NZHC 2895

TONY LUCAS HIRA

v

NEW ZEALAND POLICE

Hearing:	2 October 2025
Counsel:	C D Bean for Appellant G Collett for Crown
Judgment:	2 October 2025

ORAL JUDGMENT OF GENDALL J

[Sentence appeal]

Introduction

[1]                 On 5 August 2025, Mr Tony Hira, the appellant, was sentenced to two years one-and-a-half months’ imprisonment on charges of:1

(a)burglary;2

(b)assault on a person in family relationship (x2);3 and

(c)assaulting a person with blunt instrument.4

1      Police v Hira [2025] NZDC 18333 [decision under appeal].

2      Crimes Act 1961, s 231(1)(a)—maximum penalty of 10 years’ imprisonment.

3      Section 194A—maximum penalty of two years’ imprisonment.

4      Section 202C—maximum penalty of five years’ imprisonment.

HIRA v NEW ZEALAND POLICE [2025] NZHC 2895 [2 October 2025]

[2]                 Mr Hira now appeals against that decision on the basis that the starting point adopted was not within the available range, and accordingly, the resulting sentence was manifestly excessive.

Background

The offending

[3]Turning to the background in this matter, I address first the offending.

[4]                 Mr Hira and the complainant of his offending had been in an on-and-off relationship for one year but they did not live together. On Thursday 17 October 2024 at about 8.00 pm, Mr Hira and the complainant were arguing at her home, and he then left the address. The complainant and her brother barricaded the front door, as they feared Mr Hira would return.

[5]                 Approximately four hours later at 12.30 am on 18 October 2024, Mr Hira returned to the complainant’s house. He attempted to unlock and open the front door, before kicking the door and forcing it open enough for him squeeze through and get inside. Mr Hira stormed up the stairs towards the complainant’s bedroom. He punched the complainant in her right eye with a closed fist, then threw an unknown item across the bedroom which struck her on the back of the head, cutting it and causing it to bleed. When the complainant went to leave her bedroom, Mr Hira picked her up by her arms causing bruising to both arms. He then came down the stairs, past the complainant’s brother, and asked him to go outside for a fight. Mr Hira then left after being informed Police were on the way.

[6]                 The complainant suffered a cut to the back of her head and bruising to her right eye and both arms as a result of the assault. The front door security chain was also broken from Mr Hira’s forced entry. When asked about the incident, Mr Hira acknowledged an altercation took place.

Pre-sentence report

[7]                 Turning now to the pre-sentence report. This notes that Mr Hira is assessed as a medium risk of harm and a medium risk of re-offending, as well as a high-risk family

harm perpetrator. Mr Hira proposed an address in Shirley, Christchurch for the purpose of an electronically monitored (EM) sentence. The report writer recorded that Mr Hira’s mother, the occupant of the address, advised that she and her husband consented to Mr Hira residing at their address, but didn’t have capacity for him to live with them at present, as their granddaughter and son were also residing at the address. The report writer also noted that Mr Hira’s parents resided in a Kainga Ora property, and therefore needed permission from Kainga Ora before Mr Hira could live there. Accordingly, the report writer found an EM sentence could not be recommended.

[8]                 Instead, imprisonment was recommended, with release conditions to include that Mr Hira engage in alcohol and drug treatment and a programme to address his use of violence, especially in the context of family harm. Community work was not recommended given Mr Hira’s history of non-compliance with community work. The report noted that the Integrated Safety Response (ISR) team said there would be high concern for victim safety if Mr Hira and the complainant resumed a relationship upon his release, with Community Corrections recommending a not-to-associate or contact special condition. In terms of drug use, Mr Hira is noted to have disclosed he relapsed back into methamphetamine use at the time of his offending but was wanting to engage with He Waka Tapu for alcohol and drug intervention.

[9]                 In terms of his ability to comply, the report notes Mr Hira has a history of non- compliance with 10 convictions for breaching his sentence conditions. His non- compliance with community work mentioned above involved him receiving three warning letters due to failures to attend. He was close to a breach of community work before he was arrested for his offending.

Decision under appeal

[10]              Turning now to the decision under appeal, Judge Couch sentenced Mr Hira on 5 August 2025 at the Christchurch District Court. After summarising Mr Hira’s offending, the Judge noted the most serious charge was of burglary but found that since all the charges arose out of a continuous series of events, a starting point would be adopted based on the totality of Mr Hira’s conduct. The Judge noted a major aggravating factor was the vulnerability of the victim, given she was in bed, possibly

asleep, when Mr Hira returned to the house at around half-past midnight. He noted also she was vulnerable when the object was thrown at her from behind, as she could not see what Mr Hira was going to do. His Honour considered the other aggravating factor was that this was a dwelling house, and commented that Mr Hira’s conduct seemed to be premeditated, as once Mr Hira found the door had a chain on it he decided to break in and hurt the complainant. For the totality of that conduct, the Judge adopted a starting point of 32 months’ imprisonment.

[11]              His Honour gave a five per cent uplift for the fact the offending occurred while Mr Hira was subject to a sentence of intensive supervision, and another five per cent uplift for Mr Hira’s criminal history. A 20 per cent discount was granted for Mr Hira’s guilty pleas, which the Judge noted were entered only after initial not guilty pleas. A further reduction of 10 per cent was provided for Mr Hira’s “far from adequate upbringing” which normalised violence. Those uplifts and discounts brought the Judge to an end sentence of 25-and-a-half months’ imprisonment. This was imposed on the lead charge of burglary, with concurrent sentences of eight months for the assault with a weapon, and six months for each of the charges of assault in a family relationship.

Approach on appeal

[12]              Turning now to the approach to be taken on this appeal. This is a first appeal against sentence under s 244 of the Criminal Procedure Act 2011. Under s 250 of the Act, an appeal against sentence must only be allowed if the Court is satisfied that, for any reason, there was a material error in the sentence and a different sentence should have been imposed.5 The focus is on the final sentence arrived at, rather than the process by which it is reached, and I refer to the decisions in Ripia and Tutakangahau.6

[13]              The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.  Although s 250 does not use

5      Criminal Procedure Act 2011, s 250(2); and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

6      Ripia v R [2011] NZCA 101 at [15] and Tutakangahau v R above n 5.

the expression “manifestly excessive”, it is a principle that is well-established in the Court’s approach to determining the extent of the error in sentencing appeals.7

Submissions

Appellant’s submissions

[14]              Turning now to the submissions I have received, Mr Bean, for Mr Hira, maintains that the 32-month starting point adopted in the District Court was excessive and the Judge was silent as to its makeup. He notes there is no tariff or guiding decision for a burglary charge that turns on this type of domestic violence. Mr Bean contends that at sentencing he pointed to comments of his Honour Justice Brewer for ranges of sentencing on single domestic assaults. He says the approach he used was to avoid double-counting of the violence that ensued after entering the house, and he considers an 18-month starting point for the burglary and a totality adjusted six-month uplift for the violence charges as appropriate here.

[15]              Mr Bean considers the same result could have been appropriately reached by looking at the three assault charges, noting the single event, aggravated by the attack to the head, as the lead offending and finding it warranted a stand-alone starting point of 18 months’ imprisonment. He says on a stand-alone basis a single burglary could be argued with, if a stand-alone starting point of 12 months was adopted. He submits that even with the above approach, the requisite adjustment for totality would see a 30-month starting point reduced to around 24 months’ imprisonment.

[16]              Mr Bean goes on to submit that due to the excessive starting point, the end sentence of 25-and-a-half months’ imprisonment was manifestly excessive. He says the sentence should be set aside and a sentence of 18–19 months’ imprisonment imposed in its place.

Respondent’s submissions

[17]              In response, Ms Collett, for the Police, acknowledges the Judge set a starting point of two years and eight months without identifying a lead offence or uplift. She

7      Tutakangahau, above n 5, at [32]–[35]; and R v Shipton [2007] 2 NZLR 218 (CA) at [138]–[140].

says that in respect of the burglary charge here, the cases of Brewster8 and Alexander- Roberts9 are helpful. She notes the purpose of Mr Hira’s burglary was intimidation, and she points to the fact the complainant and her brother barricaded the door with a set of drawers due to their fears. She also observes there was property damage, in that the protective security chain was broken when Mr Hira forced his entry. Ms Collett submits this was not an opportunistic burglary, but rather required a concerted effort to enter the dwelling of a domestic partner in the early hours of the morning. She argues that on a stand-alone basis, a starting point of at least 20 months’ imprisonment is available for the burglary charge.

[18]              In terms of the violence offending, Ms Collett maintains that the aggravating features include breach of trust, vulnerability, given it occurred in the context of a domestic relationship, with the complainant being in her bedroom just past midnight, and she was particularly vulnerable. The complainant, it is noted, was assaulted to the back of the head, and would have been defenceless. The other aggravating features included the attack to the head, overall injuries inflicted, and a home invasion, although Ms Collett observes that double-counting must be avoided in terms of home invasion, given the overlap with the lead burglary charge. Ms Collett submits that a starting point of 18 months to two years’ imprisonment would be available for the three violence charges combined. Applying this as a conservative uplift of 12 months’ imprisonment, this would bring the starting point, she says, to 32 months’ imprisonment.

[19]              Ms Collett notes that, if the Court took a different approach by setting a starting point for the entire incident, then a starting point of 32 months’ imprisonment or even higher figure, would be available here. She notes the decision of Gotz which involved on charge of assault and burglary with a starting point of three years adopted.10 She says the present offending is arguably more serious as there were more instances of violence, the events involved forced entry into the complainant’s residence, and was in the context of a domestic relationship. Accordingly, she submits a starting point of

32  months  would  be  available,  if  not  at  the  lower  end  of  the  available  range.

8      Brewster v R [2022] NZCA 147.

9      Alexander-Roberts v Police [2024] NZHC 1535.

10     Gotz v R [2019] NZCA 99.

Consequently Ms Collett maintains there is no error in the end sentence, and this appeal should be dismissed.

Analysis

[20]              Turning now to my analysis in this matter. At the outset, I need to set out the view that I do not consider the starting point adopted by the District Court Judge here was outside the available range. As noted in Arahanga v R, there is no tariff case for the lead charge here of burglary, due to the wide range of circumstances in which burglary can be committed.11 However, minor dwelling house burglaries tend to attract starting points between 18 months and 30 months’ imprisonment. I do not accept Mr Bean’s submission that a stand-alone starting point of 18 months is appropriate for the burglary charge in this case. That starting point, it is said, is arrived at by reference to the decision in Wati v R. There, his Honour Justice Brewer held a charge of male assaults female ranges from two months to 12 months’ imprisonment.12 I do not see how that case particularly assists here. I note that the cases referred to in Arahanga where a starting point of 18 months was adopted are arguably less serious, with Wilson v R involving someone climbing through a window with no property damage.13 While it is true Mr Hira may not have intended to steal anything, I note the comments of the Court of Appeal in Brewster that:14

… we reject the submission that the domestic context and the desire to intimidate rather than steal property necessarily renders a burglary less serious or of a different type. That particular context, which involves characteristics of oppression and dominance so prevalent in domestic offending, does not diminish culpability.

[21]              There is significant factual similarity, in my view here, with Brewster, with the main differentiating point being that Brewster involved breach of a trespass notice, an aggravating factor not present in Mr Hira’s offending. However, the additional aggravating factor here of property damage, and arguably breaking through a protected and clearly barricaded door, means, in my view, that similarly to Brewster a starting point of 20 months’ imprisonment was in range, if towards the upper end.

11     Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

12     Wati v R [2015] NZHC 2064.

13     Wilson v R [2012] NZHC 65.

14     Brewster, above n 8, at [18].

[22]              In relation to the other charges of assault on person in a family relationship and assault with a weapon, as commented in Wati, fixing a starting point is difficult in domestic violence cases given the circumstances vary widely.15 Relevant aggravating factors include violence, attacks to the head, and injuries sustained.16 In this case, there is a relatively serious assault in a punch to the eye, and arguably a less serious assault of hauling the complainant by her arms. The most serious perhaps is the object thrown at the complainant’s head. All three assaults resulted in injuries, namely bruising to the eye, bruising to the arms, and a cut to the back of the head respectively. I also accept Ms Collett’s submission that there was a degree of vulnerability here that aggravates the assaults. The complainant was asleep in her bedroom, and was unable to easily escape, with Mr Hira stopping her when she tried to leave the room. There is also a breach of trust, in that the assailant was her partner. While there is also the home invasion aspect, I consider that should be put to one side to avoid double- counting with the burglary charge. Accordingly, I agree with Ms Collett that an uplift of 12 months’ imprisonment for the other charges is appropriate.

[23]              Therefore, while I agree the Judge should have set out how he arrived at the starting point for the offending, I consider that starting point of 32 months’ imprisonment was within the range available to him. I also cannot identify, nor have counsel identified, any other errors in the final sentence adopted. Accordingly, I consider the end sentence was not manifestly excessive.

Conclusion

[24]              In conclusion, the appellant has failed to demonstrate that the sentence imposed was manifestly excessive. This appeal is dismissed.

Gendall J

Solicitors:

Bean Law Ltd, Christchurch for Appellant Crown Solicitor, Christchurch

15     Wati, above n 12, at [18].

16     Johnstone v R [2013] NZCA 214 at [58].