Keil v The King

[2025] NZHC 2533

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2025-441-7

[2025] NZHC 2533

BETWEEN

PAUL PHILLIP KEIL

Appellant

AND

THE KING

Respondent

CRI-2025-441-9

BETWEEN

MARK JOHN SHAW
Appellant

AND

THE KING

Respondent

Hearing:	26 August 2025
Appearances:	S Jefferson for Appellant Keil R B Philip for Appellant Shaw M J M Mitchell for Respondent
Judgment:	2 September 2025

JUDGMENT OF CULL J

[1]    Following a judge-alone trial, Mr Shaw and Mr Keil (the appellants) were convicted of aggravated burglary,1 wounding with reckless disregard2 and unlawful possession of a firearm.3,4 Mr Shaw additionally pleaded guilty to possessing an

1      Crimes Act 1961, s 232(1)(a) and 66; maximum penalty 14 years’ imprisonment.

2      Section 188(2) and 66; maximum penalty seven years’ imprisonment.

3      Arms Act 1983, s 45; maximum penalty four years’ imprisonment.

4      R v Keil [2025] NZDC 3805.

KEIL v R [2025] NZHC 2533 [2 September 2025]

offensive weapon,5 cannabis,6 methamphetamine7 and methamphetamine utensils.8 Mr Shaw was sentenced to six years and six months’ imprisonment and Mr Keil was sentenced to eight years and one month’s imprisonment.9

[2]    The appellants appeal their convictions on the basis that the aggravated burglary charge under s 232(1)(a) of the Crimes Act 1961 was not made out as the defendants did not possess a weapon when they entered the caravan. Instead, the appellants say they committed a burglary.10 In the event that the aggravated burglary charge is set aside or replaced with a lesser charge, such as burglary, the appellants appeal their respective sentences.

Background

The offending

[3]    This factual summary is taken from the verdicts decision,11 sentencing notes12 and the victim’s evidence, which the Judge generally accepted.

[4]    The victim lived in a caravan near a dwelling house that had operating CCTV cameras pointing in the direction of the caravan. Mr Keil and Mr Shaw were each known to the victim. The victim believed Mr Keil was responsible for taking his truck and had phoned the police to place a stolen alert on the vehicle. Separately, Mr Shaw and the victim were involved in a motor vehicle incident prior to this offending.

[5]    At 7 am on the morning of 9 August 2023, the victim was asleep in his caravan. Mr Keil and Mr Shaw arrived at the victim’s address in a car. Mr Keil was driving and Mr Shaw was in the front passenger seat. They were disguised, wearing face coverings, clothing that covered their arms and legs, and gloves. On arrival at the property, Mr Keil turned the vehicle around in the driveway and backed up to the caravan. He left the vehicle running with the keys in the ignition as he approached the

5      Section 202A(4)(b); maximum penalty three years’ imprisonment.

6      Misuse of Drugs Act 1975, s 7(1)(a) and (2)(b); maximum penalty three months’ imprisonment.

7      Section 7(1)(a) and (2)(a); maximum penalty six months’ imprisonment.

8      Section 13(1)(a) and (3); maximum penalty one year’s imprisonment.

9      R v Keil [2025] NZDC 9841.

10     Crimes Act, s 231(1)(a); maximum penalty 10 years’ imprisonment.

11     R v Keil, above n 4.

12     R v Keil, above n 9.

front door of the caravan. He opened the caravan door and entered without the victim’s permission, waking him. Mr Keil sat next to the door and started speaking with the victim, who was still in bed. Mr Shaw came to the door of the caravan, and Mr Keil instructed him to get a bag from the vehicle. Mr Shaw went to the vehicle, retrieved the bag from the front passenger seat of the car and returned to the caravan, handing the bag to Mr Keil through the caravan door from the outside. Mr Shaw then entered the caravan and remained there for at least 15 minutes.

[6]    Mr Keil pulled a military style .22 semi-automatic firearm out of the bag. He asked the victim if he wanted to purchase the firearm. The victim declined. Mr Keil then loaded the rifle, pointed it at the victim, and fired it. The bullet struck the victim’s left elbow. Mr Keil later wrapped the victim’s arm with a jumper and belt to stem the blood flow.

[7]    Mr Keil told Mr Shaw to check on the surveillance cameras around the property. Mr Shaw went to the nearby dwelling house and spoke to an occupant to ask whether the cameras were operating. The occupants lied to him, saying the cameras did not work. They had already called the police after Mr Shaw and Mr Keil arrived at the property.

[8]    A short time later, the police arrived at the caravan. Mr Shaw was outside the caravan and in possession of the victim’s phone, which had blood on it. Mr Keil was still inside the caravan. Both were arrested. Mr Shaw was searched and found to have in his possession a knuckleduster, a small amount of methamphetamine, a small amount of cannabis, and a pipe for the purpose of consuming methamphetamine.

[9]    Mr Keil and Mr Shaw had gone to the caravan for the purpose of intimidating the victim. Mr Keil appeared to be remonstrating with the victim because of the “stolen” alert the victim had placed on his vehicle. Separately, Mr Shaw had his own grievance with the victim in respect of a motor vehicle incident. Both matters were raised with the victim after he was shot.

[10]   Both appellants were charged with aggravated burglary, wounding with intent to cause grievous bodily harm and unlawful possession of a firearm. Mr Shaw faced further charges for the items found in his possession.

APPEAL AGAINST CONVICTION

The verdicts decision

[11]   The Judge was satisfied that both appellants were guilty of aggravated burglary, with Mr Keil as the principal and Mr Shaw either as a principal or as a party in aiding and abetting Mr Keil. The Judge was satisfied that the appellants entered the caravan without authority for the purpose of intimidating the victim, having with them a .22 semi-automatic firearm.13 The Judge was also satisfied that the appellants were guilty of unlawfully possessing a firearm, with both of them being aware of the firearm, their having the ability to exercise control over it, and it being unlicensed.14

[12]   With regard to the charge of wounding with intent to cause grievous bodily harm, the Judge was satisfied that the firearm was intentionally loaded and fired by Mr Keil. However, the Judge was unsure whether there was an actual intent to cause grievous bodily harm or whether the intention was to intimidate the victim. The Judge was satisfied that Mr Keil was at least reckless as to the possibility of wounding the victim. The Judge reduced the charge to wounding with reckless disregard and entered convictions on this charge.15

Approach on appeal against conviction

[13]The Court must allow an appeal against conviction if satisfied that:16

…

(b)in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(c)in any case, a miscarriage of justice has occurred for any reason.

13     R v Keil, above n 4, at [51]–[53].

14     At [56]–[57].

15     At [54]–[55].

16     Criminal Procedure Act 2011, s 232(2)(b) and (c).

[14]   A miscarriage of justice means any error, irregularity, or occurrence in or affecting the trial that has either:

(a)created a real risk that the outcome of the trial is affected; or

(b)resulted in an unfair trial or a trial that was a nullity.17

[15]   Under s 234(2) of the Criminal Procedure Act 2011, a first appeal court, upon a successful conviction appeal of an offence for which the appellant was found guilty at trial, may substitute that offence for a different, related offence, provided the appellant could have been found guilty at trial for the latter offence, and the trial judge was satisfied of facts that prove the person guilty of the latter offence.

The aggravated burglary conviction

[16]   The sole challenge on the conviction appeal for both appellants is to the aggravated burglary conviction. They say the offence of aggravated burglary was not committed because Mr Keil was not in possession of the firearm when he entered the property.

Parties’ positions

[17]   The appellants submit that Mr Keil did not have the firearm physically with him when he entered the caravan, nor was the weapon sufficiently available to him to constitute possession. As the offence of burglary is complete upon entry and Mr Kiel did not possess the firearm at this time, they say the offence of aggravated burglary was not made out and should be quashed. However, the appellants accept they committed a burglary. They say that the possession of the firearm after entry raised the gravity of the burglary offence but did not elevate the burglary to an aggravated burglary offence. They submit that as the Court has the discretion to direct a conviction for a different offence under s 234 of the Criminal Procedure Act, the aggravated burglary conviction should be set aside and substituted for the charge of burglary.

17     Criminal Procedure Act, s 232(4).

[18]   The Crown submits Mr Keil did, in law, have the firearm in his possession when he entered the caravan, such that aggravated burglary  was committed under    s 232(1)(a). In the alternative, the Crown says aggravated burglary was committed under s 232(1)(b), and the Court can substitute aggravated burglary under this paragraph.

Has the offence of aggravated burglary been met?

[19]   The definitions of burglary and aggravated burglary under the Crimes Act 1961 provide the starting point for this analysis.

[20]Under s 231(1), burglary is committed when a person:18

(a)enters any building … or part of a building … without authority and with intent to commit an imprisonable offence in the building … ; or

(b)having entered any building … remains in it without authority and with intent to commit an imprisonable offence in the building …

[21]   Entrance into a building is defined under s 231(3)(a), for the purposes of burglary and aggravated burglary, as follows:

entrance into a building … is made as soon as any part of the body of the person making the entrance … is within the building…

[22]   Aggravated burglary is defined under s 232(1) and is committed when a person:

(a)while committing burglary, has a weapon with him or her or uses any thing as a weapon; or

(b)having committed burglary, has a weapon with him or her, or uses any thing as a weapon, while still in the building…

[23]The appellants were charged with aggravated burglary as follows:

That PAUL PHILLIP KEIL and MARK JOHN SHAW on 9 August 2023 at Napier while entering a caravan, without authority and with intent to commit an imprisonable offence in that caravan, had a weapon with him, namely a rifle.

18 Section 231(2) provides, “In this section and in section 232, building means any building or structure of any description, whether permanent or temporary; and includes a tent, caravan, or houseboat; and also includes any enclosed yard or any closed cave or closed tunnel.

[24]   The Crown case was that the appellants, while entering the caravan had the semi-automatic weapon with them and intended to intimidate the victim, which is a criminal offence punishable by imprisonment and thereby, committed aggravated burglary.

[25]   The Judge in directing herself on the ingredients of the aggravated burglary charge said the prosecution was required to prove the following matters beyond reasonable doubt:19

·That each defendant was either a principal or a party to the unlawful entry into the caravan of [the victim].

·That there was an intent to commit a crime––in this case the allegation is intimidation which is a criminal offence punishable by imprisonment.

·That they had with them a weapon during the burglary, which in this case is alleged to be a .22 semi-automatic firearm.

[26]   The Judge summarised her factual findings with respect to the aggravated burglary charge as follows:

[51]      In summary, I am quite satisfied that both defendants went together to [the victim’s] caravan in a vehicle with a firearm in a bag that they both knew about, in partial disguise for the purpose of intimidating [the victim] about matters that they each had issues with.

[52]      I accept [the victim’s] version, as supported by the CCTV footage and the other evidence in the case, that he did not give them authority to come into his caravan or to open his door. He did not invite them in. That Mr Keil entered and then requested Mr Shaw to get the bag with the firearm in it and bring it to the caravan. I am satisfied that Mr Shaw knew what was in the bag, that it was firearm, and that it would be used to intimidate [the victim].

[53]      I am satisfied that Mr Keil shot [the victim]. I am satisfied that both defendants are guilty of the  aggravated burglary either  as  a  principal  or Mr Shaw as a party by aiding and abetting him––by getting the firearm and bringing it to the caravan for the purpose of being used.

[27]   The appellants submit that neither the facts nor the Judge’s direction support the offence of aggravated burglary because the offence of burglary is complete once there is unauthorised entry with intent to commit an imprisonable offence. Burglary is not a continuing offence. Mr Jefferson stresses that once Mr Keil had entered the

19     R v Keil, above n 4, at [3].

caravan, the burglary was complete. He highlights the Judge’s words “that Mr Keil entered and then requested Mr Shaw to get the bag with the firearm in it and bring it to the caravan.” Therefore, he says, at the time Mr Keil entered the caravan partially disguised with the intention of intimidating the victim, he did not have the firearm physically with him.

[28]   For the proposition that burglary is not a continuing offence, the appellants rely on the Court of Appeal authority of Taylor v R.20 There, the appellant entered a property and stole some items. While he was leaving, he was confronted by the occupant. There was a struggle and the occupant threw the appellant against a glass ranch slider, which shattered, leaving the two men surrounded by broken glass. The appellant then grasped a shard of broken glass in his hand and threatened to injure the complainant with it. It is this action which the Crown relied on to charge the appellant with aggravated burglary, on the ground the glass shard constituted a weapon for the purpose of s 232, and that the appellant used the glass shard as a weapon “during the course of the burglary”.

[29]   The Court held that burglary is not a continuing offence, being complete once there is an unauthorised entry with intent to commit an imprisonable offence. Therefore, once the appellant entered the house, the burglary was complete21 and the offence had been completed prior to the appellant picking up the glass shard.22 It was legally incorrect to say that the appellant armed himself with a glass shard “during the course of” the burglary.23 The Court further held that the trial Judge’s direction, that the offence of burglary can be a continuing offence and does not cease at the time the burglar entered the property, was wrong.24 The Court set aside the conviction for aggravated burglary and entered a conviction for burglary under s 231(1)(a).

[30]   The Court in Taylor referred to two previous decisions for the proposition that the offence of burglary is complete upon the entering of a building with the required intent. In Larkins v Police,25 Mr Larkins came upon the scene of a burglary of a bottle

20     Taylor v R [2021] NZCA 606.

21 At [16].

22 At [17].

23 At [12].

24 At [21].

25     Larkins v Police [1987] 2 NZLR 282.

store and decided to stand guard to watch out for the police and call out if he saw them. He was charged as a party for aiding and abetting the offence of burglary. His conviction was quashed because the breaking and entering of the building had been completed before he came upon the scene. A conviction of accessory after the fact was substituted.

[31]   In Kahuroa v R,26 Ms Kahuroa was charged with burglary for sending encouraging text messages during the course of the burglary, after the offenders had entered the enclosed yard for the first time. Her conviction was set aside because the text messages were sent after the first burglary had been committed. The Court of Appeal, referring to Larkins, held that the offence of burglary is committed when the offender enters the building without authority and with the requisite intent. A person “who abets a burglary only after entry … does not attract secondary liability as a party” to burglary.27

[32]   I consider a distinction can be drawn between the facts in those three cases and the facts here. Mr Keil and Mr Shaw drove to the victim’s caravan with the intention of intimidating the victim with the semi-automatic military-style rifle, which they had in a bag with them, together with ammunition. Mr Keil reversed the car close to the caravan, kept the ignition running and entered the caravan. He woke the victim, staying seated by the door, and then instructed Mr Shaw, who was outside the door, to get him the bag containing the firearm from the car. Mr Shaw then passed the weapon across to Mr Keil, who shot the victim.

[33]   Unlike the defendants in Kahuroa and Larkins, there is no question that the appellants planned and intended to be involved in this offending before they entered the caravan. The issue here is whether the appellants had the firearm ‘with them’ when they entered the caravan, or whether, as in Taylor, they gained possession of the firearm after entry, once the offence of burglary was already complete.

26     Kahuroa v R [2021] NZCA 39.

27 At [21].

[34]   In Ellmers v Police28 (an authority on which the Crown relies), the Court held that a weapon (a mace) found in a vehicle “only a matter of feet” away from where the appellant was standing, satisfied the test that he had the offensive weapon “with him”. The Court held that the preposition “with” means the weapon is on the person of the defendant or reasonably available to him. Subsequently in Lewis v Police,29 the Court held that on its natural meaning, the preposition “with” suggests a degree of involvement of the defendant with the item in question.

[35]   In R v Manapouri,30 the Court of Appeal held that two or more persons can each be said to have with them a weapon, if each has ready access to, and a significant degree of control over, a weapon.

[36]   Mr Keil and Mr Shaw travelled to the victim’s address with the firearm. They both exercised control over the weapon and it remained in their control as Mr Keil and Mr Shaw unlawfully entered the caravan, respectively. The car was as physically close to the caravan as Mr Keil could park it and the firearm was easily accessible from the caravan. I consider the wording in s 232(1)(a) “has a weapon with him” is met here. The weapon must either be on the person of the offender or reasonably available to him or at hand.31 The weapon was reasonably available to Mr Keil when he entered the caravan, being in the vehicle that was parked in close proximity to the caravan, and Mr Keil was able to direct Mr Shaw to retrieve the firearm quickly.

[37]   I accept the Crown’s submission that this is not the situation in Taylor, where the offender has armed himself with a weapon during his escape from the property. Nor is it comparable to the facts in Larkin and Kahuroa, where the appellants assisted the principals after burglary had already occurred.

[38]   When Mr Keil entered the caravan, he had a weapon readily available to him for the purpose of intimidating the victim. Similarly, when Mr Shaw entered the caravan, the weapon was available to, and with, the appellants to commit the offence

28     Ellmers v Police (1988) 3 CRNZ 259 (HC).

29     Lewis v Police [2019] NZHC 100 at [14].

30     R v Manapouri [1995] 2 NZLR 407 (CA) at 417.

31     Ellmers v Police, above n 28, at 260.

of intimidation, as they both intended. I find therefore that the offending satisfies the ingredients of aggravated burglary under s 232(1)(a).

[39]   However, if I am wrong and Mr Keil did not “possess” the rifle when he entered the caravan, the offending would satisfy s 232(1)(b), as the Crown submits. In that event, it is open to this Court to substitute a charge of aggravated burglary under      s 232(1)(b) by virtue of s 234 of the Criminal Procedure Act.

[40]   Section 232(1)(b) provides that a person commits aggravated burglary if, having committed burglary (i.e., unlawfully entered with intent to commit an imprisonable offence) he has a weapon with him, while still in the building. The wording of s 232(1)(b), in my view, contemplates a continuing offence of aggravated burglary after the initial entry with criminal intent. It suggests that for aggravated robbery, the entering without a weapon does not preclude the offence of aggravated burglary, if the offender then comes into possession of a weapon following entry.

[41]   However, as I am satisfied that the offence of aggravated burglary was committed on these facts under s 232(1)(a), there is no further need to consider s 234 of the Criminal Procedure Act.

[42]   Accordingly, I find the Judge made no error in law and dismiss the appeals against conviction.

SENTENCE APPEAL

[43]   The basis of Mr Shaw’s appeal against sentence was premised on the outcome of the conviction appeal being successful. As I have found that aggravated burglary is made out under s 232(1)(a), Mr Shaw does not challenge the sentence he received.

[44]   Regardless of the outcome of the conviction appeal, Mr Keil appeals his sentence of eight years and one month’s imprisonment, on the ground that the Judge erroneously applied the tariff sentence guideline for aggravated robbery of Mako, resulting in the starting point for this offending as being too high. He submits the sentence imposed was manifestly excessive in any event.

Sentencing decision

[45]I focus on Mr Keil’s sentence only.

[46]   The Judge identified the following aggravating features of the offending: some premeditation, disguises, the firearm and its reckless use, the entering of a private dwelling, and the lack of prospect of escape for the victim and high likelihood of injury.32

[47]   The Judge observed that aggravated burglary is a “wide-ranging charge”, “cover[ing] a large number of situations.”33 The Judge applied the tariff decision of  R v Mako for aggravated robbery offending.34 Referring to authorities provided by Mr Jefferson, the Judge distinguished R v Karaitiana from the present offending on the basis that the shooting there was referred to as “accidental”.35 The Judge saw the present offending as more similar to the authorities provided by the Crown.36

[48]   The Judge imposed a starting point for Mr Keil of eight and a half years’ imprisonment.37

[49]   The Judge imposed an uplift of six months’ imprisonment for his previous convictions for violence offending and a recent “situation” that involved Mr Keil and a firearm.38 The Judge deducted 10 per cent for Mr Keil’s desire to rehabilitate.39 The Judge did not impose a minimum period of imprisonment in order to achieve some parity with Mr Shaw’s sentence.40

[50]The Judge made a firearm prohibition order.41

32     R v Keil, above n 9, at [18].

33 At [20].

34     At [21]; R v Mako [2000] 2 NZLR 170.

35     At [23]; R v Karaitiana [2020] NZHC 91.

36     At [23]; Poi v R [2020] NZCA 312; Currie v R [2010] NCA 449; Hay v R [2015] NZCA 329;

Hemopo v R [2016] NZCA 242; Waddington v R [2019] NZCA 440.

37 At [25].

38 At [27].

39 At [29].

40 At [30].

41     At [34(b)].

Legal principles on appeal

[51]   The appellant’s right of first appeal against sentence is under s 244 of the Criminal Procedure Act. An appeal against sentence is an appeal against the Judge’s discretion.42

[52]   In order to succeed, Mr Keil must show that there was an error in the sentence reached and that a different sentence should have been imposed.43 The Court will not intervene where the sentence is within the range available to the sentencing Judge.44 The Court will intervene only if the sentence is manifestly excessive.45

Argument on appeal

[53]   Mr Jefferson submits the Judge erroneously applied the tariff sentence guideline for aggravated robbery of R v Mako,46 resulting in the starting point being too high. He says the facts of this case are not typical of aggravated burglary cases in that there was no explicit intention to rob and no property was taken. The real criminality arose from the wounding with reckless disregard, which is aggravated by the use of the firearm, and the unlawful entry into the caravan. Mr Jefferson submits a starting point of five years’ imprisonment is appropriate, having regard to the maximum penalty for the wounding charge of seven years’ imprisonment.47

Analysis

[54]   I consider the Judge did not err in determining that aggravated burglary was the lead offence, nor in sentencing the appellant with reference to R v Mako. Although R v Mako is the guideline authority for aggravated robbery offending, the Court of Appeal in R v Watson affirmed that as the charges of aggravated robbery and aggravated burglary carry the same maximum penalty and have similar elements, the guidance in Mako is useful by analogy.48

42     Filivao v R [2024] NZCA 103 at [30].

43     Criminal Procedure Act, s 250(2).

44     Tutakangahau v R [2014] NZCA 279 at [36].

45     Kumar v R [2015] NZCA 406 at [81].

46     R v Mako, above n 34.

47     Crimes Act, s 188(2).

48     R v Watson CA224/03, 24 October 2003 at [27]–[28].

[55]   The elements of the aggravated burglary offending on these facts correspond to the relevant features discussed in Mako. The offending occurred in the victim’s dwelling at night, it involved a firearm and violence, which significantly increased the seriousness of the offence, and involved intimidation. The fact that there was no intention to steal, as Mr Jefferson submits, does not significantly diminish the seriousness of this offending, although I note the victim’s cellphone was taken during the burglary.

[56]   I uphold the Crown’s submission that the invasion of the victim’s home with a loaded firearm, the motive of intimidation, and the infliction of serious injury contributes more to the gravity of the offending than a theft of property. As the Court said in Mako:

[43]      Apart from the increased danger from the introduction of even minor physical force in the tension generated by robbery, actual violence on top of threats and intimidation takes the conduct into another dimension and must attract a considerably higher rating in overall seriousness. The extent of any violence and its consequences will be highly relevant either in assessing the robbery offence or, if the subject of an additional charge, the total criminality.

Meanwhile, the Court spoke of the extent of the property stolen as an aggravating feature in less significant terms:

[44]      The property stolen and the extent of any recovery naturally bear upon the offending. They are factors to be taken into the overall assessment of the crime.

[57]   However, the approach to sentencing is of secondary importance on appeal. The Court will intervene only if the sentence is manifestly excessive.49 I proceed to assess whether the starting point was manifestly excessive.

[58]   Mr Jefferson submits that the real criminality in this case is the wounding with reckless disregard, aggravated by the use of the firearm and unlawful entry into the caravan. He refers to two authorities involving wounding with reckless disregard offending and firearms,50 one of which the Judge expressly considered.51 The Judge rejected the relevance of Karaitiana, as the shooting in that case was “accidental”.

49     Kumar v R, above n 45, at [81].

50     R v Karaitiana, above n 35.

51 At [23].

The second authority on which Mr Jefferson relies in R v Motuliki.52 That offending did not involve the element of home invasion, and the sentencing Judge characterised the offending as “impulsive”, driven by the “sole motivation … to protect the people in [the defendant’s] home.”53

[59]   I consider the facts in this case differ markedly from those authorities and are more analogous to the authorities provided by the Crown to both the Judge and to this Court, particularly Poi v R, Currie v R and Hay v R.54 They all involved offenders breaking into the homes of victims, demanding money or property, and possessing firearms (except in Poi, where the victims believed the offenders possessed a firearm). While there was an explicit intention to rob the victims in those authorities, there was no discharge of a firearm. The starting points upheld in those cases ranged between seven years and nine months’ imprisonment to nine years’ imprisonment.

[60]In Poi v R, the Court of Appeal observed:55

[17] Starting points upheld or imposed by this Court in recent years for aggravated robberies with an element of home invasion have generally ranged from six and a half to ten years.

[61]   I have also had regard to the sentencing guideline decision for serious violent offending of Taueki v R by way of comparison.56 Given the aggravating factors here of home invasion, use of violence with a firearm, intimidation and two offenders together with planning and preparation, the band two sentencing range in Taueki of five to 10 years is comparable.57

[62]   I am therefore satisfied that the starting point reached by the Judge of eight and a half years’ imprisonment was within the available range. This was serious offending. I note that the starting point was a global starting point for all three charges: the aggravated burglary, the wounding with reckless disregard, and the unlawful possession of the firearm.

52     R v Motuliki HC Auckland CRI-2006-092-18270, 4 March 2008.

53 At [17].

54     Poi v R, above n 36; Currie v R, above n 36; and Hay v R, above n 36.

55     Poi v R, above n 36.

56     R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372.

57     At [34] and [38]–[39].

[63]   Although not raised by counsel, the Judge incorporated the six-month uplift for Mr Keil’s previous convictions as a personal aggravating factor in reaching an adjusted starting point of nine years’ imprisonment, contrary to the Court of Appeal’s guidance in Moses v R.58 This gave Mr Keil an advantage, as the 10 per cent reduction was taken from the adjusted starting point, resulting in a higher reduction for Mr Keil.

[64]   I find there has been no error in the starting point of eight and a half years’ imprisonment for this offending.

Result

[65]The appeal against sentence is dismissed.

Cull J

Solicitors:

Bramwell Bate, Hastings for Appellant Shaw Crown Solicitor, Napier for Respondent

58     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].