McKay v The King
[2025] NZHC 3137
•21 October 2025
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CRI-2025-442-019
[2025] NZHC 3137
BETWEEN SEAN McKAY
Appellant
AND
THE KING
Respondent
Hearing: 16 October 2025 Appearances:
L A Caris for Appellant
A R Goodison for Respondent
Judgment:
21 October 2025
JUDGMENT OF GRICE J
(Appeal against sentence)
Introduction
[1] Sean McKay pleaded guilty to one charge of burglary.1 On 22 July 2025, he was sentenced in the District Court at Nelson to two years and three months’ imprisonment, and a $2,500 emotional harm reparation payment.2 The sentence also included remission of $10,534 in fines.
[2]Mr McKay now appeals against his sentence on the grounds that:
(a)the starting point was too high;
1 Crimes Act 1961, s 231 — maximum penalty of 10 years’ imprisonment.
2 R v McKay [2025] NZDC 16595.
McKAY v R [2025] NZHC 3137 [21 October 2025]
(b)the Judge applied an inadequate discount for personal mitigating factors;
(c)the Judge erred in make an order for an emotional harm reparation payment of $2,500; and
(d)the remission of fines and imposition of an additional two months’ imprisonment was not appropriate in the circumstances.
The offending
[3] On 7 May 2024 at 3.28 am, Mr McKay left his address and drove a vehicle to Tasman Bay Jewellers in Motueka. He approached the rear door of the jewellers, wearing gloves and a black paintball mask to disguise his identity.
[4] Mr McKay used a sledgehammer to break the safety glass out of the rear door, and then broke the metal security lattice from inside of the door. He proceeded to squeeze his body through the gap in the broken door and entered the premises. Once inside, he pulled a locked cabinet off the wall. One of the glass doors on the cabinet broke and a number of gold chains fell onto the floor. Mr McKay then proceeded to smash the top of another cabinet and remove two display trays containing gold wedding bands and other decorative jewellery.
[5] While Mr McKay was attempting to leave the premises through the gap in the broken door, he dropped a number of gold wedding bands on the ground. He also left his right shoe, the black mask and the sledgehammer. Mr McKay’s DNA was identified on the mask.
[6] The police tracked Mr McKay via his home detention bracelet and discovered that he had placed layers of foil over the bracelet in an attempt to disrupt the GPS signal. Mr McKay had with him a personal bag containing a wig and gold jewellery, including rings identified as coming from the jewellery store. His bag also contained a notebook with his name on it, which included a list related to the burglary.
[7] Mr McKay initially denied the offending and explained that the person responsible for the burglary must have put the jewellery in his bag when the police stopped him.
Pre-sentence reports
Provision of Advice to Courts report
[8] Mr McKay has a significant and continuous criminal history dating back to his first conviction at age 16. He is now 33 years old. He has a seven-year-old daughter who is currently under the care and legal guardianship of Mr McKay’s mother. He expressed sadness that he has never had “the opportunity to be her dad”. Mr McKay’s mother is supportive of him, but acknowledged that he has previously made similar statements regarding his desire to turn his life around. However, she said she believed he was finally ready to address his drug addiction and that he genuinely wanted to make a positive change for his daughter.
[9] Mr McKay told the report writer that he had been making positive changes in his life at the time of the offending, including leave the gang he had been a member of and moving to Motueka. He said he was disappointed in himself for his actions, but he was confident he could make the changes needed to turn his life around if he was given another opportunity.
[10] The report writer noted that a sentence of home detention would have been recommended as an option for the Court’s consideration, however Mr McKay declined consent, expressing concerns about his wellbeing if he were sentenced to home detention. Therefore, a sentence of imprisonment with release conditions was recommended.
[11] The report records that Mr McKay has been proactive in seeking placements in available rehabilitation centres, including the Grace Foundation and Red Door Recovery. The Grace Foundation has confirmed there would be a space available for Mr McKay on his release from prison.
Section 27 report
[12] The s 27 report records that Mr McKay’s parents were in a violent and abusive relationship, and as a child he was frequently beaten by his father to the point of bruising and injury. He also reported suffering blackouts from a young age which affect his memory. Mr McKay began having regular violent episodes and outbursts from age five, and police and mental health crisis teams were often called throughout his teenage years. His mother said that Mr McKay was diagnosed with sleep disorders, anxiety and depression as a child. He has also had multiple suicide attempts throughout his life.
[13] Mr McKay began consuming alcohol and smoking cannabis and cigarettes from age 13. He was made to leave home at age 14 after threatening to shoot his mother’s house with a pistol, and spent several months sleeping on the streets before moving into a boarding house. He then began using methamphetamine.
[14] When he was around 18, Mr McKay met a man referred to as “Frank”, who took on a father-figure role in his life and manipulated him into carrying out criminal activity over the next eight years. They parted ways in 2014. Mr McKay became a gang member in 2015, where he says he found some sense of belonging. However, he left the gang about 18 months ago following “multiple attempts on his life” and threats to his family.
[15] While Mr McKay has never been in employment, he said his short term goals were to find a job so he could travel between Motueka to Palmerston North to see his mother and daughter every second week.
Alcohol and other drug assessment
[16] The AOD report provides further detail relating to Mr McKay’s background and struggle with substance abuse. He reported his father chasing him with a machete at age five or six, as well as other traumatic incidents throughout his childhood. He was expelled and disengaged from the education system at age 15.
[17] Mr McKay identified methamphetamine as his primary substance of choice, having used it on a daily basis for a number of years. However, he expressed strong motivation for rehabilitation. Mr McKay has been abstinent from alcohol since age 21.
[18] The report also notes that Mr McKay had a cancer scare in 2024, which gave him further motivation to turn his life around.
Victim impact statement
[19] The victims of the offending, Mr and Mrs Petrie, described the significant impact that the offending has had on their lives. They are both in their sixties, and Mr Petrie is disabled. They said they were traumatised and no longer felt safe in their store following the burglary. Both reported suffering significant health issues as a result, and they received injuries from broken glass from the door which Mr McKay smashed to enter the premises.
[20] Mr and Mrs Petrie also reported the harm caused to their business. They lost income, and lost the enjoyment they previously had from their business, which they had spent many years building. They described the difficulties in working through the insurance process, and noted that the replacement cost of the items stolen was far more than that which they received from the insurance company, given the recent increase in the value of gold.
District Court decision
[21] In considering the starting point, Judge Barkle identified four aggravating features of the offending, namely:
(a)Planning and premeditation:3 Mr McKay carried a “to-do list”, a disguise, gloves, and a sledgehammer to gain entry.
3 At [14].
(b)Nature of the premises:4 The burglary was of a jewellery store which held high-value items. The Judge also inferred from this that Mr McKay had specifically targeted the jewellery store, which supported planning and premeditation.
(c)Value of the property stolen:5 Mr McKay stole valuable jewellery. The insurance claim was over $22,000, although some of that figure included damage to property. The Judge noted that the actual sale value of the items taken could have been substantially greater. He viewed the offending as “relatively sophisticated”.
(d)The harm to the victims:6 The Judge noted that the harm caused by the offending was evident from the victim impact statement. In particular, the owners of the jewellery store are in their late sixties and have built up their business over many years.
[22] The Judge then referred to the culpability factors set out by the Court of Appeal in R v Nguyen.7 He also considered a number of comparable cases, and ultimately adopted a starting point of two years and three months’ imprisonment for the offending.8
[23] The Judge identified two personal aggravating factors, which warranted an uplift of six months’ imprisonment.9 First, Mr McKay was serving a sentence of home detention that had commenced only seven days prior to the offending. Second, Mr McKay has an extensive offending history, including seven burglary convictions.
[24] The Judge then adopted a 20 per cent reduction for Mr McKay’s guilty plea given that this was agreed to by the Crown, however noted that the plea was not entered at the earliest opportunity and was in the context of strong police evidence.10
4 At [14].
5 At [15].
6 At [15].
7 R v Nguyen CA110/01, 2 July 2001 at [17].
8 At [16]–[21]. The cases referred to by the Judge included McIndoe v R [2021] NZHC 3023;
Lenihan v R [2020] NZHC 2543; and Adams v R [2012] NZCA 515.
9 At [22].
10 At [23].
In addition, the Judge applied an overall discount of 10 per cent for personal mitigating factors, including upbringing, mental health challenges, and rehabilitative prospects.11 This amounted to an overall discount of 30 per cent, or eight months.12
[25] Applying the uplifts and discounts for personal factors, the Judge reached a sentence of 25 months.13 However he also remitted $10,534 worth of fines owed by Mr McKay, and applied a further uplift of two months’ imprisonment to reflect the significance of that figure.14 The Judge therefore reached an end sentence of 27 months, or two years and three months’ imprisonment. He also ordered Mr McKay to pay a $2,500 emotional harm reparation payment.15
Approach on appeal
[26] An appeal against sentence is an appeal against an exercise of discretion, and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence and a different sentence should have been imposed.16 Generally, an appellate court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.17 In most cases, a sentence appeal will turn on whether the final outcome is manifestly excessive, rather than the route taken by the judge in reaching that outcome.18
Starting point
[27] Ms Caris, for Mr McKay, submits that the starting point of two years and three months’ imprisonment was too high, and suggests that a starting point of between 18-20 months would have been appropriate. Ms Goodison, for the Crown, says the starting point was orthodox, well-reasoned, and squarely within range.
11 At [24]–[26].
12 At [27].
13 At [27].
14 At [27] and [28].
15 At [28].
16 Criminal Procedure Act 2011, s 250(2).
17 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
18 Ripia v R [2011] NZCA 101 at [15].
[28] As noted by the sentencing Judge, there is no guideline judgment for burglary, however the Court of Appeal set out certain factors relevant to assessing culpability in R v Nguyen.19
[29] Ms Caris lists a number of factors which she suggests are relevant to the gravity of the offending in this case, several of which overlap with those identified by the Judge. She particularly emphasises that although binary distinctions between burglaries of commercial premises and residential premises are generally unhelpful,20 the commercial nature of the premises here lessens the impact on the victims, and involves a lesser invasion of personal privacy. In addition, she says the burglary was not a sophisticated operation, it occurred at night and so carried a minimal risk of confrontation, and it did not involve the infliction of “wanton” damage.
[30] Both parties discuss the facts of McIndoe v R and Lenihan v R, which were relied upon by the Judge at sentencing.21 In McIndoe, the appellant entered Michael Hill Jeweller wearing a black face mask, black hooded top, and black gloves.22 He jumped over the counter and, when challenged by a staff member, told them to “fuck off”. He took $28,895 worth of jewellery and attempted to leave, but was restrained by the store manager and a member of the public. The starting point of three years’ imprisonment on the lead charge of burglary was upheld on appeal.23
[31] In Lenihan, the appellant and an associate broke into a pharmacy at around midday on a Saturday, but left the area when an alarm was triggered.24 The appellant returned that evening and entered the building by climbing onto the roof and removing a solar dome to climb into the ceiling cavity.25 He then covered a motion sensor and broke through the ceiling and walls to enter the dispensary. Once inside, he jemmied open a safe and removed $3,700 worth of predominantly class B drugs. Around 70-80 per cent of the stolen drugs were located under the appellant’s bed eight days
19 Nguyen, above n 7, at [17].
20 Lenihan, above n 8, at [28], citing Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.
21 McIndoe, above n 8; and Lenihan, above n 8.
22 McIndoe, above n 8, at [6].
23 At [23].
24 Lenihan, above n 8, at [2].
25 At [3].
later.26 The starting point of three years and six months’ imprisonment for the two burglary charges was upheld on appeal.27
[32] Ms Caris submits that the present case can be distinguished from McIndoe, given the confrontation with staff and members of the public involved in that case. She also notes that the value of the stolen items had not been confirmed at the time Mr McKay pleaded guilty, and that a number of the items were recovered. Furthermore, she contends that Lenihan is of limited assistance, as it concerned two burglaries of a pharmacy committed within quick succession, which occurred during the day and therefore with a higher risk of confrontation, involved two offenders, and involved a greater degree of planning and sophistication. She notes that the need for deterrence is heightened in cases involving burglary of pharmacy premises, due to the particular concern around offenders obtaining restricted drugs.28 Ms Caris submits that the same level of seriousness would not generally attach to burglaries of jewellery stores.
[33] However, as Ms Goodison notes, the starting point taken by the Judge was materially lower than those adopted in both McIndoe and Lenihan, reflecting the somewhat less serious nature of the offending here. Furthermore, while certain aggravating factors such as risk of confrontation or the presence of multiple offenders do not apply here, Mr McKay’s offending does bear several similarities to that in McIndoe and Lenihan. For instance, Mr McKay inflicted considerable damage in order to gain entry to the premises, there was evidence of premeditation, and the goods stolen were of a high value. I am not persuaded by Ms Caris’s submission that the damage caused was only such as is “inherent” in a burglary of this kind, nor that the evidence necessarily indicated premeditation of no more than one day.
[34] I also accept Ms Goodison’s argument that while the targeting of a pharmacy for controlled drugs is a serious aggravating factor, that does not mean that targeting a jeweller for high value, readily moveable goods is not also serious and destructive for a family-owned business. Furthermore, despite the fact that the burglary did not
26 At [4].
27 At [43].
28 At [31]–[32]; and Pluim v Police [2012] NZHC 1592 at [15(c)].
occur at a residential address, it has still had a clear impact on the victims’ feeling of safety in their place of work and has caused them significant mental distress. Overall, I consider the starting point of two years and three months was pitched fairly by the Judge in relation to McIndoe and Lenihan.
[35] Ms Caris submits that the present offending is most comparable to Adams v R, which was also considered by the sentencing Judge.29 In that case, the appellant, together with a co-offender, entered a commercial building by jemmying open a second-story office window. A large amount of property, including jewellery, suitcases, alcohol, mobile phones and computers were removed from the property. The jewellery alone was valued at around $25,000.30 A starting point of 21 months’ imprisonment was adopted at sentencing.31
[36] However, as Ms Goodison notes, the only ground of appeal in Adams related to whether the Judge had erred in failing to commute the sentence to one of home detention. The starting point was therefore not interrogated on appeal, and limited assistance can be drawn from the decision here. In any event, that offending did not involve the level of property damage inflicted in this case, nor a targeted attack on a family business.
[37] Ms Caris also refers to Ikahihifo v R, in which a starting point of two years’ imprisonment was lowered to 20 months on appeal.32 There, the appellant and an associate forced open doors of a supermarket and stole over $20,000 worth of cigarettes and tobacco. However, the damage to property in that case was less, and the goods were fully recovered.33
[38] Finally, Ms Caris raises an argument about the proper time at which to assess the value of the jewellery stolen. She contends that the relevant figure is the value at the time the items were taken, not the present cost of replacement. In particular, she takes issue with the Judge’s comments regarding the victims’ evidence that it would
29 Adams, above n 8.
30 At [2].
31 At [8].
32 Ikahihifo v R [2012] NZHC 3553.
33 At [4] and [5].
cost them more to replace the stolen items than their insurance payout could cover, and argues that a significant number of the rings stolen were recovered. However, Ms Caris accepts that for the purposes of sentencing the value of the goods taken (as evidenced by the insurance claim) was in the vicinity of $22,000. It is common ground that the items stolen were high-value and, in any event, the value of the items is only one relevant factor among many. I do not consider anything turns on this point.
[39] While Ms Caris also referred to a number of other cases in her submissions, I note the offending here is not comparable to opportunistic commercial burglaries involving minimal damages and stolen property of low value. It involved a premeditated, planned burglary in which the appellant made careful preparations, including having on hand a sledgehammer, mask, and disguise, and driving to the shop. The target was a jewellery store which contained high value and easily disposed of items. In addition, it was small family business not a commercial enterprise. In my view the Judge made no error in assessing the starting point based on comparator cases. The starting point adopted achieves the sentencing purposes of denunciation, deterrence, and community protection.
Personal mitigating factors
[40] Ms Caris submits that the discount of 10 per cent for Mr McKay’s personal mitigating factors was insufficient. Her submissions in relation to the relevant factors raised are addressed in turn.
Background factors and s 27 report
[41] An offender’s background may be a relevant factor where it can be established that it had a causative contribution to the offending.34
[42] Ms Caris submits that there is an apparent nexus between Mr McKay’s offending and his personal background factors, as detailed in the s 27 report. In particular, she suggests that the abuse and neglect he experienced as a child primed him for subsequent behavioural issues, which led to his disrupted education and early
34 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [108].
homelessness. This in turn established the context in which he turned to criminal behaviour and became addicted to methamphetamine. He was then vulnerable to manipulation by “Frank”, under whose influence his involvement with the criminal justice system became more entrenched. Ms Caris contends that a 15 per cent discount would be appropriate for s 27 factors.
Rehabilitative prospects
[43] Ms Caris submits that Mr McKay has been proactive in identifying potential support avenues for once he is released into the community. The pre-sentence reports also indicate that he is no longer affiliated with his former gang, which Ms Caris submits is a significant and promising development. She contends that a moderate discrete discount is appropriate for Mr McKay’s rehabilitative prospects.
Remorse
[44] Ms Caris submits that a moderate discrete discount is appropriate for Mr McKay’s expressions of remorse. He provided a letter to the Court acknowledging his actions were selfish and impulsive, and saying he hoped to apologise to the victims in person.
[45] Furthermore, Mr McKay had wanted to engage in restorative justice. A direction was made for this by the Court on 1 April 2025, however due to apparent administrative errors, this was never pursued further. Ms Goodison says the victims were not interested.
Was the overall discount for personal mitigating factors sufficient?
[46] Ms Goodison contends that the global 10 per cent discount was within range. She notes the need to avoid tallying up discrete discounts in such a way that leads to an end sentence which does not reflect the offender’s overall culpability.35 Ms Goodison submits that here, the 10 per cent discount recognised that to allow greater credit would not provide for an appropriate sentencing outcome given the seriousness of the offending.
35 McCaslin-Whitehead v R [2023] NZCA 259 at [62]–[66].
[47] I do not consider the Judge made any error in failing to provide a discount for remorse. There is little evidence of remorse to the level that it should be recognised as a discrete discounting factor.
[48] While it may be that another judge might have increased the discount for both Mr McKay’s background factors and rehabilitative prospects together, I do not consider that the Judge was in error in setting the discount at 10 per cent. As Ms Goodison pointed out the discount for the guilty plea was relatively generous. Therefore, overall, I do not consider the level of the reduction for personal mitigating factors resulted in a sentence that was manifestly excessive.
Reparation
[49]Ms Caris submits that the additional emotional harm reparation payment of
$2,500 was excessive. She says that, given Mr McKay already has outstanding reparations of $21,644, is unlikely to be realistic for him to pay the emotional harm payment in any timely fashion. He has been in custody since 7 May 2024 and his current sentence has an expiry date of 7 August 2026. She submits it is unlikely Mr McKay will be in paid employment following his release. Ms Caris contends that if the Court considers the imposition of any reparation order is appropriate, it ought to be confined to $1,000, which reflects the insurance excess the victims had to pay.
[50] Ms Goodison submits that, had Mr McKay engaged in restorative justice, as he says he wanted to do, the topic of reparation would have arisen. The existing figure of $21,644 represents the extensive damage caused by the offending, whereas the additional $2,500 separately accounts for the emotional impact on the victims. She says the figure imposed must have reflected what the Judge determined could be fairly ordered given the remission of Mr McKay’s fines.
[51] Mr McKay has been in prison for over a year and will continue to be for some time, and he already owes substantial reparations. In those circumstances, I consider he has no possibility of paying a further $2,500 within a reasonable time. I therefore quash the order for the emotional harm reparation payment of $2,500.
Remission of fines
[52] Ms Caris notes that there does not appear to have been any report put before the Judge in relation to the unpaid fines, as referred to in s 88(2)(b) of the Summary Proceedings Act 1957. The powers of the Judge after considering such a report are contained in s 88AE of that Act, including imposing a warrant of commitment. Ms Caris also submits that here, the least restrictive appropriate sentence was not imposed, as required by s 106E(4).
[53] Following the hearing, the Crown filed a memorandum acknowledging that the Judge had not followed the mandatory procedure under s 106E(1) of the Summary Proceedings Act before remitting the fines. In particular, the Judge was required to consider an assessment of Mr Turner’s financial capacity, and be satisfied that all other methods of enforcing the fines had been considered or tried but were inappropriate or unsuccessful. The Crown therefore accepted that the remission order should be quashed and the fines reinstated.
[54] The Judge did not have the power to remit the fines and substitute them with a prison term without following the process prescribed in the Summary Proceedings Act.36 Therefore, insofar as the term of imprisonment is concerned, it must be reduced by two months. The fines which were remitted are reinstated.
Conclusion
[55] With the reduction in sentence to two years and one month’s imprisonment and no order for reparation, the sentence is not manifestly excessive.
[56] The appeal is allowed to the extent that the orders for a $2,500 reparation payment and remission of Mr McKay’s fines are quashed. The sentence of two years three months’ imprisonment is set aside, and a sentence of two years and one month’s imprisonment is imposed.
36 See Morehu v R [2023] NZHC 3684 at [15]; and Nahi v Police [2012] 2576 at [20].
Grice J
Solicitors:
O'Donoghue Webber, Nelson for Respondent
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