Natua v The King
[2025] NZHC 1795
•2 July 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000665 CRI-2025-404-000185
CRI-2025-404-000186 [2025] NZHC 1795
BETWEEN LUKE NATUA
Appellant
AND
THE KING
Respondent
Hearing: 24 June 2025 Appearances:
M Ryan for the Appellant R Benic for the Respondent
Judgment:
2 July 2025
JUDGMENT OF ANDREW J
This judgment was delivered by me on 2 July 2025 at 3 pm
Registrar/Deputy Registrar Date:
NATUA v R [2025] NZHC 1795 [2 July 2025]
Introduction
[1]This is an appeal against sentence.
[2] On 16 October 2024, Mr Natua was sentenced by Judge J M Jelaš to eight years and six months’ imprisonment, with a 50 per cent minimum period of imprisonment (MPI) for a range of offending committed between 1 August 2021 and 11 October 2023.1 Mr Natua’s offending was extensive and involved both the orchestration of violent offending in the community while he was in prison and, when he was on bail, the accrual of further charges.2
[3] Mr Natua does not challenge the starting point of 10 years’ imprisonment adopted for the totality of the offending. Likewise, he does not contest the uplift of nine months’ imprisonment applied to reflect his offending while subject to a sentence and on bail, the uplift of six months’ imprisonment for previous convictions, or the credit of 15 per cent applied for guilty pleas.3
[4] The focus of Mr Natua’s appeal is on the credit given for his personal mitigating factors and the imposition of a MPI. He submits:
(a)a credit of 20–25 per cent should have been given for Mr Natua’s personal background factors, rather than the 10 per cent provided;
(b)a 10 per cent credit for rehabilitative efforts and remorse should have been applied, rather than the credit of one month provided; and
(c)a MPI should not have been imposed.
1 R v Natua [2024] NZDC 25570.
2 The Manukau Crown charges from August 2021 were: intentional damage, threatening to destroy property, and threatening act (discharging a firearm). The Auckland Crown charges from October 2021 were: aggravated robbery, blackmail, conspiracy to pervert the course of justice, and attempt to pervert the course of justice (x 3). The Police charges from April 2022–October 2023 were: escaping lawful custody, failing to stop, operating a vehicle recklessly, driving while disqualified (x 3), assault on a person in a family relationship, unlawful possession of a firearm, failure to stop (x 2), driving a motor vehicle dangerously, and aggravated assault.
3 Mr Natua was first charged on 20 March 2022 for the October 2021 offending. He pleaded guilty on 13 June 2024, shortly before trial and following a declined sentence indication. The offending prosecuted by the Manukau Crown involved a 10 per cent discount for guilty plea, following a sentence indication in April 2022. Mr Natua pleaded guilty to the Police charges on 13 June 2024.
[5] The Crown opposes the appeal and submits that the end sentence imposed was within the appropriate range, the credits applied were appropriately identified based on the material available, and the MPI was justified as release after serving one third of the sentence would not meet the relevant purposes of sentence.
The offending
[6] While in custody, Mr Natua enlisted others to commit violent offences on his behalf in order to satisfy “debts” he believed he was owed. This included Mr Natua arranging for confrontations at victims’ homes and arranging for an associate to discharge a firearm at the home of those victims. Separately, he arranged for associates to rob others of a vehicle and their belongings at gunpoint. Mr Natua then arranged for assistance to be provided to his associates as they fled the Police following the report of that offending.
[7] When charged for the above offending, Mr Natua was granted EM bail. He repeatedly breached his EM bail conditions and accrued the further charges mentioned above at fn 2. The perverting the course of justice charges arose in part from Mr Natua, who was in prison, directing others to destroy evidence.
Decision under appeal
Personal history
[8] Having reached an adjusted starting point of 10 years and nine months’ imprisonment, the Judge turned to mitigating factors and, relevantly to the appeal, Mr Natua’s personal background factors. The Judge noted that Mr Natua’s personal history and mental health background were set out in full in a s 27 report and a report provided by Dr Lokesh, a consultant forensic psychiatrist. She set out an extract of the s 27 report that detailed Mr Natua’s upbringing having been characterised by “family violence victimisation, father absence, parental role modelling of drug and criminal behaviours, sexual abuse, and that his mother began giving him cannabis at age two to subdue his symptoms of ADHD”.
[9] The Judge went on to set out in some detail the contents of the s 27 report, noting Mr Natua’s extensive history in State care and then in the youth and adult justice systems. She noted his longstanding gang affiliations and ongoing drug use and abuse, which began at a young age and continued into adulthood. The Judge noted that drug abuse had significantly impacted Mr Natua’s mental health, referring to Dr Lokesh’s report, which records Mr Natua’s diagnoses with paranoid schizophrenia, depression, and complex PTSD.
[10] Judge Jelaš acknowledged that Mr Natua’s personal history had contributed to his substance use, abuse and addiction and that his upbringing had normalised gang involvement and criminal activity. However, while she acknowledged that these factors were relevant to sentences, the Judge stressed the need to balance the factors against the need to keep the public safe. This balancing exercise led her to allow the 10 per cent credit for personal history.
Remorse and rehabilitation
[11] Judge Jelaš said she had no reason to doubt that Mr Natua’s expressions of remorse were “anything other than heartfelt”. However, again she noted the need to balance the mitigation of remorse with the fact that Mr Natua pleaded guilty at a late stage, he had offended while under sentence and while on bail, and the charges were serious. The Judge concluded that the discount provided for guilty plea was sufficient to recognise the “inherent remorse” expressed and declined to provide a discrete credit.
She reasoned that “more would be required” for a discrete credit to be given.4
[12] As to rehabilitation, the Judge noted that Mr Natua had endeavoured to use his time well and undertaken some rehabilitative programmes. She noted he has high-complex needs, given his high-risk factors — and there are multiple factors driving his offending.5 However, she considered that “More specialist, meaningful and long-term rehabilitation” would be required for a greater level of credit to be given for rehabilitation. She held that one month should be deducted for rehabilitation.
4 R v Natua, above n 1, at [124].
5 At [126].
MPI
[13] The Judge said that Mr Natua was at high risk of re-offending and high risk of causing harm to others. She found that those risks were amply demonstrated in the offences before the Court. She also noted the need to deter and denounce Mr Natua’s offending and the relevance of his offending having occurred while subject to either bail or a sentence of imprisonment. It was with regard to these factors that the Judge imposed the MPI of 50 per cent.
Legal principles on appeal
[14] Section 250 of the Criminal Procedure Act 2011 sets out how a court is to determine a sentence appeal. An appeal must be allowed if the Court is satisfied that there is an error in the sentence imposed, for any reason, and that a different sentence should be imposed.6
[15] The Court of Appeal in Palmer v R outlined the position with respect to sentence appeals, stating that:7
… the standard of appellate review in sentence appeals … requires that the appellant show a material error was made and satisfy the appellate court that a different sentence ought to be imposed. Sentencing is not a science and an appellate court will not ordinarily interfere unless the end sentence was outside the range available to the sentencing judge. For that reason it is not an error to describe sentencing decisions as discretionary, so long as it is clear that “discretion” means only that the sentencer enjoys an appropriate margin of appreciation.
[16] In Tutakangahau v R, the Court of Appeal said that the concept of “manifestly excessive” continues to apply to appeals against sentence.8 The Court held that the appellate court’s focus is on the sentence imposed rather than the process by which it was reached.9 A judge on appeal should not intervene where the sentence imposed was within the range that could be properly justified by accepted sentencing principles.10
6 Criminal Procedure Act 2011, s 250(2).
7 Palmer v R [2016] NZCA 541 at [17] (footnotes omitted).
8 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [35].
9 At [36].
10 At [36], citing Tutakangahau v R [2014] NZHC 556 at [10].
Analysis and decision
[17] I address below each of the grounds of appeal: credit for personal background factors; credit for remorse and rehabilitation; and the MPI. The overarching and determinative issue is, of course, whether the end sentence was manifestly excessive.
Mitigating factors
[18] Mr Ryan, for Mr Natua, submits that the circumstances set out in Dr Lokesh’s report, including his psychotic illness (which is a major focus of submissions), substance abuse issues, significant difficulties in upbringing, and complex PTSD arising from significant traumas, impaired Mr Natua’s “choice” and significantly reduced his moral culpability for the offending. Mr Ryan goes on to note that, contrary to Judge Jelaš’ finding that Mr Natua is at high risk of re-offending and causing harm to others, Dr Lokesh’s report assessed Mr Natua’s risk as being moderate.11
[19] Mr Ryan submits, with reference to R v MacDonald and Poi v R, that a discount of 20–25 percent was justified for mitigating factors. In MacDonald,12 Grice J allowed a discount of 25 per cent for the factors set out in the s 27 and psychological reports, given the offending could be linked to those factors, which included substance abuse, loss of a parent, abuse in institutions, experience of violence, and gang membership. In Poi,13 the Court of Appeal allowed a 20 per cent discount for the appellant’s personal background, which involved whānau dysfunction and violence, limited education, alcohol and drug addictions, and gang affiliations.
[20] As to remorse and rehabilitation, Mr Ryan submits that Mr Natua’s “demonstrable remorse” warrants a discrete discount for sentence, rather than being included in the overall credit for guilty plea. He says a discount of between five and 15 per cent is usually appropriate to acknowledge steps taken to indicate remorse. Mr Ryan emphasises that Judge Jelaš stated that she had no reason to believe that
11 I note that, in the executive summary of Dr Lokesh’s report, he said “Mr Natua has a moderate to high-risk prediction for similar future index offending. However this can be reduced to low to moderate if the above rehabilitation recommendations are implemented.” I infer that the District Court Judge based her finding on this comment, rather than Dr Lokesh’s formulation at [100] of the report.
12 R v Macdonald [2021] NZHC 224.
13 Poi v R [2020] NZCA 312.
Mr Natua’s statements of remorse were anything other than genuine. He submits that she was wrong to treat Mr Natua’s remorse as being bound up with his guilty pleas, noting that a sentencing credit should be given separately from that for a guilty plea. Overall, Mr Ryan submits that a discount of 10 per cent was appropriate for Mr Natua’s remorse and rehabilitation efforts.
[21] I acknowledge that Mr Natua has a troubled and dysfunctional background. He has had extensive contact with the criminal justice system from a very young age
— 14 years old — and over time has accumulated about 79 convictions. Dr Lokesh notes Mr Natua’s cognitive difficulties and the fact that he continues to present with residual psychotic symptoms. There is a clear and proper basis for concluding that the significant deprivation he has experienced (social and economic) has resulted in impaired choice and moral culpability.14 However, Judge Jelaš was clearly aware of all these factors and, indeed, made specific mention of them. While perhaps at the lower end of the scale for a case of this kind, I find that the 10 per cent credit given for personal background factors was within range. In the circumstances here, 10 per cent equates to one year’s imprisonment (the same as the credit given by the Supreme Court in Berkland).15 It is also important to recognise that credit for personal background factors can properly be limited or reduced where other sentencing purposes, particularly the protection of the community, are more prominent at sentencing. That was a significant factor here that the District Court Judge, in my view, was entitled to take into account.
[22] As the Crown submitted, Mr Natua is now 31 years old and has been consistently before the courts since 2008, when he was 14 years old. He has continued to offend in the community while on EM bail and while in custody. His offending must be regarded as serious and he does pose a risk to others. In the circumstances, I find there was no error by the District Court Judge in giving a 10 per cent credit for personal background factors.
14 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648. See also Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [16(c)]; and E (CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411.
15 Berkland v R, above n 14, at [16(d)].
[23] In relation to remorse and rehabilitation, I reject Mr Ryan’s submission that Judge Jelaš was in error in failing to make a discrete discount for remorse rather than including it (as she did) in the overall credit for the guilty plea (i.e. 15 per cent). The Judge did, in my view, make a finding that Mr Natua was genuine in the statements of remorse made and, in my view, was entitled to conclude that “more would be required” from Mr Natua for a discrete credit to be given for remorse. In my view, the approach adopted is consistent with the following dicta of the Court of Appeal in Moses v R:16
… remorse is a personal mitigating factor that may justify a discount separately from any guilty plea discount. Remorse is a question of fact and judgement. The defendant bears the onus of showing that it is genuine, meaning that it qualifies as remorse and he or she actually experiences it. Remorse need not be extraordinary to earn a discount, but it does require something more than the bare acceptance of responsibility inherent in the plea. Courts look for tangible evidence, such as engagement in restorative justice processes.
[24] As noted, the District Court Judge linked the lack of discrete credit for remorse with the relatively generous discount of 15 per cent afforded for the guilty pleas. The following timeline supports the Judge’s decision on that issue (guilty pleas were entered at different stages):
(a)Mr Natua was first charged on 20 March 2022 for the lead offending of aggravated robbery and the associated charges of 14 October 2021. He entered guilty pleas on 13 June 2024, after a declined sentence indication and shortly before a scheduled trial date of 8 July 2024. The evidence faced by Mr Natua consisted primarily of intercepted phone conversations he made from custody. I agree with the Crown submission that the evidence could be characterised as “strong”;
(b)The offending prosecuted by the Manukau Crown involved credit of 10 per cent for guilty pleas. Mr Natua’s offending occurred on 1 August 2021. He received a sentence indication on 6 April 2022, which included credit of 10 per cent for guilty pleas;
16 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [24] (footnote omitted).
(c)The Police charges against Mr Natua involved offending between April 2022 and October 2023. He entered guilty pleas on 13 June 2024 for that offending.
[25] As to the issue of credit for rehabilitation, I acknowledge that there is some force in Mr Ryan’s submission that the one month for rehabilitation was somewhat meaningless, given the very minimal (one month – 0.77 per cent) credit given. However, the Judge herself acknowledged it was minimal and, in reaching that conclusion, she had regard to the particular rehabilitative programmes undertaken on remand (generally limited) and noted that he had only undertaken “preliminary rehabilitative” steps to address his “high-complex” needs. I agree with her conclusion that more specialist, meaningful and long-term rehabilitation is most likely required.
[26] Ultimately, the question is whether or not the end sentence of eight years and six months’ imprisonment was manifestly excessive. Despite my misgivings about the minimal credit given for rehabilitation, I find that the end sentence was within range and was not manifestly excessive. I turn to address the remaining issue of the MPI.
MPI
[27] Mr Ryan submits, in reliance on R v McDonald,17 that, while the totality of Mr Natua’s offending was serious, his culpability was significantly impaired by the personal mitigating factors before the Court. He also says that the length of Mr Natua’s sentence of imprisonment is sufficient to meet the purposes and principles of sentencing without a MPI. Further, he says that the need to protect the community is best left in the hands of the Parole Board.
[28] The central consideration in imposing a MPI under s 86 is culpability.18 This is increased by matters such as unusual callousness, extreme violence, vulnerable or multiple victims, or serious actual or intended consequences. Accordingly, unless the offender’s risk justifies the imposition of a minimum term, the sole task for the Court
17 R v Macdonald, above n 12.
18 R v Brown [2002] 3 NZLR 670; (2002) 19 CRNZ 534 (CA) at [32].
is to identify aspects of the offence that set it apart from others of its type, so that the minimum one-third non-parole period would be inadequate for the purposes of punishment, denunciation or deterrence.
[29] Here, Judge Jelaš, in addressing MPI, concluded that Mr Natua was at “high risk of re-offending and high risk of causing harm to others.” However, as Mr Ryan submitted, that was not the conclusion of the consultant forensic psychiatrist, Dr Lokesh. Dr Lokesh concluded:
[100] Based on a structured risk assessment, Mr Natua’s short-term risk prediction for future offending is moderate. His long-term risk with the above recommendations is low to moderate if the rehabilitation interventions recommended above are implemented.
[30] In my view, Judge Jelaš was in error in concluding that a high risk of re-offending justified the imposition of a MPI. I acknowledge that the offending here was serious, but the degree of culpability needs to be tempered by the significant dysfunctional background of Mr Natua, including his significant mental health problems. Indeed, Mr Natua already faces a lengthy term of imprisonment that reflects the seriousness of his offending. In my view, the issue of the safety of the community is best left in the hands of the Parole Board. It is required to take that factor into account as the paramount consideration.19
[31] I acknowledge that the PAC report of 24 September 2024 assesses Mr Natua’s risk of reoffending and harm to the community as “high”. However, it does refer to and emphasise the need for “intensive rehabilitation”.
[32] Mr Natua is only 31 years’ old. He has taken some initial promising steps towards rehabilitation (albeit preliminary), as recognised by the District Court Judge. Moreover, facilitating Mr Natua’s successful rehabilitation would be in the best interests of community protection. The criminal justice system does note cope well with offenders with particular complex needs such as Mr Natua’s. A MPI here would be inconsistent with the flexibility required to best facilitate the rehabilitative process.20 In my view, there is benefit in him having access to the Parole Board at an
19 Parole Act 2002, s 7(1). See also Poi v R, above n 13, at [55].
20 P (CA479/2015) v R [2016] NZCA 128 at [54]; see also R v Pomana [2007] NZCA 138 at [24].
earlier stage, as the Board can monitor and assess his rehabilitation efforts.21 That, and the fact that he has a 17-month-old son, will also provide him with some incentive to continue to address his issues.
Result
[33] The appeal is dismissed, except to the extent that the MPI of 50 per cent is quashed. The sentence of eight years and six months’ imprisonment remains but without a MPI.
Andrew J
21 See Clarke v R [2021] NZCA 96 at [38].
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