Lawrence v The King

[2025] NZHC 2223

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2025-441-8

[2025] NZHC 2223

BETWEEN

JETT LAWRENCE

Appellant

AND

THE KING

Respondent

Hearing:	31 July 2024
Appearances:	W R Hawkins for the Appellant S Manning for the Respondent
Judgment:	7 August 2025

JUDGMENT OF HARLAND J

Introduction

[1]    On 23 May 2025, the appellant was sentenced by Judge R J Collins in the Napier District Court to a term of two years and seven months' imprisonment and was disqualified from holding or obtaining a driver licence for six months1 on charges of burglary,2 conversion of a vehicle,3 demanding with menaces,4 theft,5 intentional damage,6 assault with intent to injure7 and driving while suspended.8

1      R v Lawrence [2025] NZDC 11730.

2      Crimes Act 1961, ss 231(a) and 66(1) - maximum penalty 10 years' imprisonment.

3      Sections 226(1) and 66(1) - maximum penalty seven years' imprisonment.

4      Sections 239(2) and 66(1) - maximum penalty seven years' imprisonment.

5      Sections 219(1)(a) and 223(3) - maximum penalty one year' imprisonment.

6      Sections 269(2)(a) and 66(1) - maximum penalty seven years' imprisonment.

7      Section 193 - maximum penalty three years' imprisonment.

8      Land Transport Act 1961, ss 32(1)(c) and (3) - maximum penalty three months' imprisonment.

LAWRENCE v R [2025] NZHC 2223 [7 August 2025]

[2]    The appellant submits the adjusted starting point adopted by the Judge and the deduction allowed for personal mitigating factors are such that I can conclude the end sentence was manifestly excessive.

[3]    The respondent opposes the appeal and submits the sentence imposed was well within the available range in terms of the adjusted starting point adopted and the mitigating factors applicable to this appellant. The respondent submits the end sentence was not manifestly excessive.

[4]    I have decided to dismiss the appeal. This judgment sets out my reasons for doing so.

The facts

[5]    There are three sets of charges that reflect offending between 2 February 2024 and 4 October 2024. The first two sets of charges (referred to as the Crown Charge Notice charges) were faced by the appellant and a co-defendant. The third set of charges (referred to as the Police charges) were faced by the appellant alone. The appellant was 19 years of age at the time of the offending.

Crown Charge Notice charges

Te Mata Peak offending - 2 February 2024

[6]    On 2 February 2024, the appellant and a co-defendant were in a motor vehicle in a carpark at the top of Te Mata Peak. A man seated in the driver's seat of his vehicle (the victim) was also there, reading from his Kindle device, looking at his cell phone and, from time to time, looking out over the view of Hastings.

[7]    The appellant and the co-defendant stopped behind the vehicle occupied by the victim. The victim was not known to either of them. The co-defendant, who was the driver of the vehicle, blocked the victim's vehicle so he could not leave.

[8]    The appellant got out of the vehicle and approached the victim at the driver's door. He had a tyre iron in his hand. The appellant asked the victim "what have you got?" The victim was confused and surprised, and simply replied "nothing". The

appellant then asked the question again, this time holding the tyre iron up to the victim’s face. The same response was given. The appellant saw that the victim was holding his cell phone and demanded that it be given to him, all the while holding the tyre iron near the victim's face. The victim gave the appellant his cell phone.

[9]    The appellant then reached into the victim’s car, took the keys out of the ignition, opened the driver's door, reached inside and grabbed the victim by his hoodie, pulling him out of the car. The appellant then got into the car and started it. At this point, the co-defendant (who was still in the car they had arrived in) reversed his car out of the way so the appellant could drive away in the victim’s vehicle. Both vehicles were then driven down Te Mata Peak Road heading towards Havelock North.

[10]   The charges of demanding with menaces, conversion and theft arise from this offending.

Ram raid at Clive - 2 February 2024

[11]   The appellant and his co-defendant both ended up in the stolen vehicle. They drove to Clive and decided to commit a ram raid on the Four Square. The stolen vehicle was reversed into the front entrance of the shop, causing extensive damage to the steel roller door.

[12]   The co-defendant got out of the vehicle and, armed with a hammer, attempted to smash the glass door behind the roller door. As he was doing this, the appellant reversed the stolen vehicle into the entrance again. In that process, his co-defendant ended up being crushed between the car and roller door. Two of the co-defendant’s front teeth were broken as a result.

[13]   Once the doors to the shop were able to be opened, the appellant and co-defendant went inside and attempted to break open the cigarette cabinet and cash register using a tyre iron and a hammer but to no avail. Both ended up leaving the premises empty handed.

[14]The stolen vehicle was then driven back to Hastings and abandoned.

[15]   There was extensive panel damage to the rear portion of the vehicle stolen from the victim at Te Mata Peak. The exhaust system was damaged and windows were broken. Unfortunately, as the vehicle was uninsured and because the victim had insufficient funds to repair it, the vehicle was written off.

[16]   When spoken to by Police, the appellant admitted taking the car from Te Mata Peak and that he drove it to the Four Square in Clive. He also acknowledged reversing the vehicle into the front doors of the Four Square and said he had gone inside and tried to smash the cigarette cabinets.

[17]The charges of burglary and intentional damage arise from this offending.

[18]   The appellant was initially charged with aggravated robbery, burglary and intentional damage. He appeared in Court on 9 February 2024 to answer these charges, was granted bail and remanded to appear back in Court on 26 February 2024. On 8 April 2024, he pleaded not guilty to the charges and elected trial by jury. The Crown assumed responsibility for the charges.

Facebook Marketplace offending - 4 October 2024

[19]   On 4 October 2024, while still on bail, the appellant agreed to meet with the victim who had contacted him through Facebook Marketplace to purchase a motorbike. There was an arrangement for the victim to come to view the bike at 1 pm that day at the appellant's address. Unbeknownst to the appellant, the victim thought it looked like one that had been stolen from his friend two months earlier. The victim sent a photo of the listed motorbike to his friend, who confirmed it was the bike that had been stolen from him.

[20]   Both the owner of the motorbike and the victim turned up at the appellant's address at the agreed time with the intention of recovering the bike. The owner of the bike managed to take it and drive it away from the address. The victim then returned to his vehicle intending to leave the appellant's property.

[21]   When the appellant realised the bike was being taken, he chased the victim and jumped onto the flat deck of his vehicle. As the victim drove away, the appellant was

on the back of the ute tray and grabbed a metal bike ramp. The appellant struck the back window of the ute, shattering the window, gaining access to the victim. He struck the victim to the back of the head multiple times with the metal bike ramp. As he was driving down the road, the victim managed to grab the bike ramp and pulled it inside the vehicle. The appellant stood up on the ute tray and kicked the victim to the back of the head numerous times. As the victim turned into a nearby road, the appellant reached inside the cab and put his arms around the victim's neck in a chokehold. In an attempt to break free, the victim bit the appellant's thumb causing him to release the victim. The appellant then reached around the head of the victim attempting to scratch and gouge his right eye.

[22]   The victim abruptly stopped the vehicle near traffic lights at an intersection. The appellant then climbed into the cab next to him and started punching the victim several times around his body before a member of the public intervened and separated the appellant from the victim.

[23]   As a result of this assault, the victim received several cuts to his face and a cut to his leg.

[24]   This incident resulted in the charges of assault with intent to injure and intentional damage.

[25]   At some point, the appellant pleaded guilty to the charges that have been referred to in [1] of this judgment. The charge of aggravated robbery was reduced to demanding with menaces, conversion and burglary.

The District Court decision

[26]   The Judge commenced his decision by referring in detail to the facts. He noted that, in relation to the Te Mata Peak offending, the appellant could have easily faced the charge of aggravated robbery as opposed to demanding with menaces and conversion. Had the aggravated robbery charge been laid, a considerably higher

starting point in the vicinity of five years’ imprisonment could well have been justified, given that the maximum penalty for that charge is a term of imprisonment of 14 years.9

[27]   The Judge then referred to the starting point of three and a half years imprisonment adopted by Judge Matenga in respect of the co-defendant who participated in the offending at Te Mata Peak and in Clive. The Judge said the appellant's involvement was likely greater than that of his co-defendant and he also faced an additional charge of theft of the cell phone. But the Judge decided to adopt the same starting point of three and a half years and did not uplift the starting point to reflect the theft charge. This was generous.

[28]   In relation to the Facebook Marketplace offending, the Judge noted that it had occurred while the appellant was on bail. He decided the minimum uplift he could adopt would be one year and three months' imprisonment.

[29]   Given that, the starting point was one of four years and nine months' imprisonment. The Judge then considered whether, on a totality basis, the starting point should be reduced. In doing so, he set the adjusted starting point at four years' imprisonment.

[30]   From that adjusted starting point, the Judge adopted a 20 per cent deduction to reflect the appellant's guilty pleas and a further 15 per cent to reflect his youth, resulting in an end sentence of two years and seven months' imprisonment.

[31]   The end sentence was imposed on the burglary charge, in addition to the following concurrent sentences: two years' imprisonment on the intentional damage at the Clive Four Square, one year six months' imprisonment on the unlawful taking of the victim's vehicle from Te Mata Peak, one year imprisonment for demanding with menaces and six months for the theft of the cell phone.

[32]   The Judge also concurrently imposed sentences of one year' imprisonment on the assault with intent to injure, one month imprisonment for the intentional damage of the window of the ute (the Facebook Marketplace offending) and convicted and

9      Crimes Act 1961, s 235.

disqualified the appellant from holding or obtaining a driver licence for six months on the charge of driving while disqualified.

[33]   The Judge did not order any reparation stating that, although it would be justified, it would nonetheless be futile.

Discussion

[34]   I deal with the appeal points about the starting point and the personal mitigating factors separately.

The starting point for the Facebook Marketplace offending

[35]   Mr Hawkins, for the appellant, submitted the starting point for the assault with intent to injure was too high as it ought properly to have been placed within band one of Nuku v R, which would attract a community-based sentence.10 Therefore, he submitted, a cumulative uplift of imprisonment was wrong in principle. To support his argument, Mr Hawkins referred to Tamihana v R11 and Edwards v R.12

[36]   Mr Manning, for the respondent, submitted the uplift was appropriate. He also referred to Edwards v R as a comparable case and to Kojeunikov v Police.13

[37]   Nuku v R provides guidance about how R v Taueki may be adapted to apply to offending that involves violence short of grievous bodily harm.14 The aggravating factors referred to in R v Taueki require an assessment of whether the offending involved extreme violence, pre-meditation, serious injury, use of weapons, attacks to the head, facilitation of crime, perverting the course of justice, multiple attackers, vulnerability of the victim, home invasion, gang warfare, attack on a public official carrying out their duty and vigilante or hate crime.15 In Nuku v R, three bands are adopted to assist a Judge in determining the appropriate starting point. They are:16

10     Nuku v R [2012] NZCA 584.

11     Tamihana v R [2015] NZCA 169.

12     Edwards v R [2018] NZHC 1463.

13     Kojeunikov v Police [2013] NZHC 551.

14     Nuku v R, above n 10 at [2]; R v Taueki [2005] 3 NZLR 372 (CA).

15     R v Taueki, above n 14 at [31].

16     Nuku v R, above n 10, at [38].

(a)         Band one: where there are few aggravating features, the level of violence is relatively low and the sentencing judge considers the offender’s culpability to be at a level that might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate.

(b)        Band two: a starting point of up to three years’ imprisonment will be appropriate where three or fewer of the aggravating factors listed at [31] of Taueki are present.

(c)         Band three: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band three, even if there are few other aggravating features.

[38]   Although Mr Hawkins submitted the appellant's offending fell within band one, Mr Manning submitted it falls within band two.

[39]   Mr Manning submitted that, in Edwards v R, the Court said, where three R v Taueki factors are present but at the lower end of the range, the offending is properly categorised at the bottom end of band 2.17 That appears to apply here. Addressing the factors that relate to each of the bands, I agree that the appellant's offending is best categorised as lying in band two. There is the use of a weapon, the vulnerability of the victim given that he was driving his vehicle while being attacked from behind, attacks to the head with a weapon, the violence was sustained and continued despite the victim’s resistance and included punching and kicking, and the attempt to gouge the victim's eye. I am not persuaded that the offending was premeditated, rather, I consider it was an excessive violent response, displaying a complete lack of personal control. The appellant only stopped his attack when a member of the public intervened after the victim had stopped his vehicle.

[40]   In Edwards v R, the starting point adopted at first instance for the assault with intent to injure conviction was 17 months’ imprisonment, which was reduced to 12 months’ imprisonment on appeal.18 The offending in that case involved punching the victim in the face and pushing them onto a couch.19 In Kojeunikov v Police, the assault with intent to injure conviction attracted a starting point of two years’ imprisonment

17     Edwards v R, above n 12, at [15].

18 At [15].

19 At [9].

at first instance, reduced to 12 months’ on appeal for one punch to the victim’s head and further kicks when the victim was on the ground. I agree with Mr Manning that the appellant’s offending was more serious than either of these examples, as it involved determined and prolonged violence, including with a weapon, to the head of a vulnerable victim.

[41]   It would be quite wrong, in my view, to characterise this offending as displaying a level of violence that is relatively low or offending where the appellant's culpability could be described as being at a level that might have been better reflected in a less serious charge. Band one does not apply here.

[42]   Even if the appellant was not aware that the bike had been stolen from the victim’s friend, his response to the situation was completely disproportionate, particularly given that there were other options available to him such as calling the Police. It also cannot be overlooked that this offending occurred while the appellant was on bail for other serious violent offending.

[43]   Although the Judge did not specifically refer to it, I consider a cumulative sentence of imprisonment higher than 15 months could well have been adopted. The starting point adopted by the Judge on this charge, in my view, was at the lower end of the appropriate range.

[44]   Accordingly, I do not agree that a sentence of anything other than a term of imprisonment (as opposed to community-based sentencing) was the appropriate response to the second set of offending. If, for argument’s sake, this offending had preceded the Te Mata Peak offending, a starting point of imprisonment, in my view, would still have been warranted taking into account Nuku v R and the purposes and principles of sentencing. I accept that, in that scenario, a sentencing Judge may well have been able to commute the sentence to home detention, but the reality of this offending is that it was a short time after the Te Mata Peak offending. A pattern of violent offending was developing. This cumulative sentence of imprisonment was the only option and inevitably would take the end sentence out of the range where home detention could, and in my view should, be considered as a sentencing response.

[45]   While the interests of a defendant are a fundamentally important part of the sentencing process, the interests of victims of offending also need to be taken into account, as do the interests of the community. Even though one of the purposes of sentencing is to assist in the offender’s rehabilitation and reintegration,20 random acts of violence against members of the public, where there is no suggestion of self- defence, engage a number of purposes of sentencing including the need:21

(a)        to hold the offender accountable for harm done to the victim and community by the offending;

(b)        to promote in the offender a sense of responsibility for, and an acknowledgment of, that harm;

(c)        to provide for the interests of the victim of the offence;

(d)        to denounce the conduct in which the offender was involved;

(e)        to deter not only the offender but others from committing the same or a similar offence; and

(f)         to protect the community from the offender.

[46]   But as well, certain principles of sentencing apply in this case. As well as the gravity of the offending and the offender’s culpability for it, I must take into account the general desirability of consistency with appropriate sentencing levels in dealing with offenders in respect of similar offenders committing similar offences in similar circumstances.22 After considering the comparator cases above at [40], I conclude that the more serious penalty imposed by the Judge in this case, when compared to the comparator cases, was warranted given the more serious nature of offending here.

[47]   The appellant’s whānau and cultural background are important as they relate to the appellant’s rehabilitative prospects23 and the least restrictive outcome that is appropriate in the circumstances is also an important principle.24 In this case, despite

20     Sentencing Act 2002, s 7(1)(g).

21     Section 7.

22     Sections 8(1)(a) and (e).

23     Also an important purpose under s 7 of the Sentencing Act 2002.

24     Sections (8)(1)(g) and (i).

the age of the appellant and the considerable amount of support available to him, the interests of the victim and the appellant's degree of culpability for the offending should be afforded more weight.

Adjustments for personal factors

[48]   The appellant challenges the 15 per cent allowance made by the Judge for personal mitigating factors apart from the guilty plea.

[49]   A number of letters have been filed by the appellant’s whānau indicating he is responding well to the structure provided by incarceration and that he has made the most of opportunities to improve himself since his sentence began.

[50]   Leave is required for further evidence to be called on appeal but, to be admissible, it must be fresh and cogent.25 What this means is that, if information would have been available at the initial sentencing, it cannot be said to be fresh. Although counsel for the respondent could well have opposed the admission of this evidence, no issue is taken with the Court considering it. I grant leave accordingly.

[51]   I have carefully considered the letters provided. All indicate a loving, caring and responsible family who wish to support their young whānau member. They present a picture somewhat different from the attitudes and actions displayed by the appellant during his offending. It is difficult to understand how this young man, with the family support he has, has chosen a path that seems in direct conflict with his whānau values. There are likely reasons, apart from the fact of his youth, that explain what has gone wrong for him. Impressive though these letters of support are, I cannot ignore that the active role of the appellant's family was set out in the pre-sentence report and by the appellant’s counsel during the sentencing hearing. Judge Collins acknowledged that support at the outset of his decision.

[52]In relation to allowances for youth, the Court of Appeal in Churchward v R

said:26

25     Criminal Procedure Act 2011, s 335.

26     Churchward v R [2011] NZCA 531 at [84], citing Pouwhare v R [2010] NZCA 268 at [96].

[84]  As was noted in R v Rapira, however, where the offending is grave,  the scope to take account of youth may be greatly circumscribed. This is because the very factors that may lead young people to offend may cause concerns about future public safety. There is also the need for denunciation and deterrence, both specific to the offender and general. This Court summarised the relevance of youth to sentencing in Pouwhare v R as follows:

… the fact than an offender is a young person can sometimes be given radical effect on sentence, unconstrained by any normative percentage, even where offending is serious. In other cases that is not possible. The young age of the offender cannot be accorded presumptive, let alone paramount, weight. The objective seriousness of the offending, the young person's part in it, anything aggravating and otherwise mitigating must also be weighed.

[53]   I am not persuaded that a further discount is warranted in this case. The support the appellant has from his whānau will still be available to him after his term of imprisonment ends. If he is serious about rehabilitating himself, he will avail himself of the opportunities and support they are prepared to offer him after he is released.

[54]   Mr Hawkins referred me to several cases to demonstrate how imprisoning a young man can be significantly detrimental to his future and overall long-term rehabilitation.27 I do not consider this point takes his case very far here, as it is quite apparent that anything short of a sentence of imprisonment is not available in these circumstances. But the appellant can also choose to avail himself of the opportunities he will have in prison to address the issues that led him to offend in this way. It is not inevitable that this sentence will blight his future or impede the prospect of him turning his life around.

[55]   Counsel for the appellant also referred to parity with the appellant's co- offender. This was a responsible point to make. However, in relation to the charges arising from Te Mata Peak, I agree with the Judge that the appellant's co-offender played a lesser role, even if both were equally culpable for the offending at the Clive Four Square. But, in addition, the co-offender did not face the additional charges arising from the Facebook Marketplace offending and, as I have already said, that offending occurred while the appellant was on bail. Given these factors, this is a case where parity with the co-defendant’s end sentence is not warranted.

27     Maiko v R [2020] NZHC 2958, R v Nathan [2017] NZHC 806, Reweti v R [[2018] NZHC 809.

Result

[56]The appeal is dismissed.

Harland J

Solicitors:

Crown Solicitor, Napier

Counsel:
W R Hawkins, Barrister, Hastings