Newport v Police

[2025] NZHC 647

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2025-443-3

[2025] NZHC 647

BETWEEN

NATHAN NEWPORT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	19 March 2025
Appearances:	M J Utting for Appellant H Bullock for Respondent
Judgment:	26 March 2025

JUDGMENT OF BOLDT J

[1]                 On  27  November  2024,   Judge   Hikaka   sentenced   the   appellant, Nathan Newport, to two and a half years’ imprisonment.1 Mr Newport had pleaded guilty to charges of burglary,2 theft,3 receiving4 and unlawfully taking a motor vehicle.5 He appeals against his sentence.

Background

[2]                 Mr Newport is 38. He is a recidivist burglar and property offender. Prior to his most recent course of offending, Mr Newport had 15 convictions for burglary and more than 60 convictions in total. He has numerous convictions for theft, theft from

1      Police v Newport [2024] NZDC 28646 [Decision under appeal].

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

3      Sections 219 and 223(c). Maximum penalty one year’s imprisonment.

4      Sections 246 and 247(c). Maximum penalty three months’ imprisonment.

5      Section 226(1). Maximum penalty seven years’ imprisonment.

NEWPORT v NEW ZEALAND POLICE [2025] NZHC 647 [26 March 2025]

vehicles, unlawfully taking motor vehicles, wilful damage, receiving and fraud. He has served four sentences of imprisonment and, with only occasional pauses, has offended steadily for the last 23 years.

[3]                 The most recent raft of offending occurred in May and August 2024. It was a continuation of the old pattern. Mr Newport faced seven charges, including two of unlawfully taking a motor vehicle, two of theft from cars and one each of receiving, theft and burglary. Plainly the burglary charge was the most serious, though as residential burglaries go it was not in the worst category. Mr Newport drove to the victims’ home, bringing a small stool with him. He entered their yard, stood on the stool and stole three external security cameras, valued at just under $1000 in total. He did not break into the house.

[4]                 Mr Newport was arrested in August 2024, and has been in custody since.    He pleaded guilty to all seven charges on 16 October 2024. Mr Newport attended a restorative justice meeting the following month and was very apologetic. He told the victims he had been living out of his car and was addicted to methamphetamine.    He said, “that’s not an excuse but I was stealing to live”.

District Court sentencing

[5]                 Judge Hikaka adopted a starting point of three and a half years’ imprisonment.6 He assessed the appropriate starting point  for  the  burglary  at  two  years,  added six months for each of the occasions on which Mr Newport unlawfully took a vehicle, and added a further six months for the rest of the offending. From that, the Judge deducted 25 per cent for Mr Newport’s guilty pleas and a further 15 per cent to reflect his background, addiction and the genuine remorse he demonstrated when he participated in the restorative justice meeting.7

[6]                 Those discounts took the sentence to 25 months’ imprisonment. The Judge then observed he could not overlook Mr Newport’s extensive criminal history, and in particular his 15 previous burglaries and numerous other dishonesty convictions.

6 Decision under appeal, above n 1, at [23].

7      At [24]

The Judge uplifted the sentence by five months, resulting in the final sentence of two and a half years.8

Discussion

[7]                 The approach to appeals against sentence is well settled. Under s 250 if the Criminal Procedure Act 2011, I must dismiss the appeal unless I am satisfied, for any reason, that there was an error in the sentence and that a different sentence should be imposed. In accordance with orthodox principles, an appeal can be allowed only if the sentence was manifestly excessive, if there was a material error of principle or if there are exceptional circumstances.9

[8]                 My focus is on the final sentence the Judge imposed rather than how it is made up.10 If the same outcome could have been reached by another route, the sentence will not be manifestly excessive.

[9]                 Ms Hicklin, for the Crown, accepted the Judge had overestimated the seriousness of the burglary. While there is no tariff for domestic burglaries, in Arahanga v R the Court of Appeal confirmed it is common for a single residential burglary, with no other aggravating features, to  attract a starting point of  between  18 months and two and a half years’ imprisonment.11 It is common ground this burglary was at the lowest end of the scale. Despite modest premeditation, as evidenced by Mr Newport bringing the small stool with him, he did not actually enter the victims’ house. His offending was confined to the removal of the security cameras, which ironically recorded exactly what he was doing and ensured his conviction.

[10]              Ms Hicklin accepted a starting point no higher than 18 months’ imprisonment would have been appropriate if the burglary were considered on its own. It was also common ground that the additional 18 months for the remaining six charges could not be challenged. Ms Hicklin accepted that a starting point of three years, rather than the

8 At [25].

9      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33]–[39].

10     Hughes v R [2012] NZCA 388 at [29].

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

three and a half years selected by the Judge, would have represented an appropriate assessment of Mr Newport’s overall offending.

[11]              Mr Utting, who appeared for Mr Newport, agreed with Ms Hicklin that the overall reduction of 40 per cent fairly reflected the mitigating factors available to   Mr Newport.

[12]              That said, Ms Hicklin submitted that while Judge Hikaka may have overestimated the seriousness of the burglary, in imposing an uplift of only five months the Judge attached insufficient weight to Mr Newport’s extensive criminal history. She argued the excessive starting point for the burglary was comfortably offset by the mercifully modest uplift for Mr Newport’s previous convictions. She submitted the final sentence was well within the available range.

[13]            Mr Utting was unable to contest that analysis. He accepted a considerably greater uplift would have been available. While he rather optimistically suggested a starting point as low as twelve months’ imprisonment for the burglary, domestic burglary remains a very serious offence, and only the rarest cases justify a starting point below the 18 months indicated in Arahanga.

[14]              As already noted, the way Judge Hikaka reached the two-and-a-half-year end sentence is of no moment as long as the sentence was reasonably available.

[15]              Burglary is an offence where habitual and repeat offending is common. Recidivist burglars cause incalculable damage. For victims, the loss of property is typically compounded by the profound sense of violation which accompanies the burglar’s intrusion onto their property, and usually into their home. For repeat offenders, uplifts of between 12 and 18 months are common, including for defendants with histories comparable to Mr Newport’s.12

[16]              Mr Utting’s ultimate goal was to persuade me to reduce Mr Newport’s original sentence to two years or less, and then to seek leave for him to apply for home

12     For example, in Blisset v Police [2013] NZHC 156 at [49]–[51], a 12-month uplift was added to a 32-month starting point to reflect the appellant’s 13 previous burglary convictions.

detention if a place in a suitable rehabilitation facility becomes available.13 He noted that Mr Newport is in urgent need of treatment for his longstanding methamphetamine addiction. I agree, but as Mr Utting acknowledged, there is no guarantee a suitable programme could be found before Mr Newport’s release date.

[17]              In any event, there was no real dispute the two-and-a-half-year sentence was available to the Judge, even if another Judge may have  constructed it differently.  Mr Newport has been in custody for more than seven months and will be eligible for parole in less than three. His sentence included a substantial discount to reflect his addiction. The Parole Board  will  be  acutely  conscious  of  the  need  to  provide Mr Newport with an opportunity to address his addiction in order to break the cycle of his offending. The Board will have access to information about available programmes and Mr Newport’s suitability for them.

Conclusion

[18]              There was no material error the sentence Judge Hikaka imposed. The appeal is dismissed.

Boldt J

13     Sentencing Act 2002, s 80I.