Nicholas v The King
[2025] NZHC 2590
•8 September 2025
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2025-463-68
[2025] NZHC 2590
BETWEEN ELIJAH WHAKAAHUA NICHOLAS
Appellant
AND
THE KING
Respondent
Hearing: 3 September 2025 Appearances:
M J Hine for Appellant
H J Speight for Respondent
Judgment:
8 September 2025
JUDGMENT OF WILKINSON-SMITH J
This judgment was delivered by me on 08 September 2025 at pm.
………………………… Registrar/Deputy Registrar
Solicitors:
Pollett Legal Ltd, Tauranga
Hine Eagle Barristers and Solicitors, Tauranga
NICHOLAS v R [2025] NZHC 2590 [8 September 2025]
[1] The appellant, Elijah Nicholas, appeals against the imposition of six months’ community detention imposed by Judge I D R Cameron on 22 May 2025.1
[2] The sentence was imposed in respect of one charge of theft. In addition to six months’ community detention, the appellant was ordered to pay $32,800 in reparation.
[3]The grounds of the appeal are:
(a)that the community detention element of the sentence was unreasonable and manifestly excessive; and
(b)community detention was not the least restrictive outcome appropriate in all circumstances of the case.
[4] The Crown opposes the appeal and says that Judge Cameron had regard to and properly considered all circumstances of the offending. That is, there was no error in the imposition of community detention as it was an available sentencing option and the final sentence imposed was appropriate and not manifestly excessive. It is submitted this is especially so when considering the maximum penalty was one of three years’ imprisonment, and the prolonged and callous nature of the offending.
Background
[5] In July 2022 the appellant’s Hino truck was stolen in a burglary from his worksite. The appellant is self-employed with an earth moving and house relocation business.
[6] In September 2022, Mr Nicholas discovered the whereabouts of the stolen truck. He did not call police. Instead, he and two associates went to the address where the truck was located and found it poorly repainted with false registration plates. The truck was loaded with 84 two-box beehives containing live bees and towing a trailer with a loader on it.
1 R v Nicholas [2025] NZDC 12341.
[7] The appellant recovered his truck and took with him the beehives, bees and the trailer with the loader. Over the following days the complainant contacted the defendant directly to get his property items back and to prevent the bees from dying.
[8] The appellant declined to return the property. The complainant then reported the matter to police, who contacted the appellant on numerous occasions to facilitate the return of the complainant’s property, reiterating to the appellant that the bees could die.
[9] On 26 September 2022 the appellant drove the Hino truck to the Te Puke Police Station with 24 two-box beehives.
[10] The bees had died, and the trailer was empty and damaged. The damage to the trailer consisted of damage to the electronic brakes and decking timber, the spare wheel and vehicle ramps were missing.
[11] Police requested the appellant return the remaining 60 two-box beehives, bees, trailer components and loader. The loader was eventually returned but not until May 2024, some 20 months after it had been stolen. And it was returned damaged.
[12] At the time of being stolen, the loader was valued at $59,000 and the beehives were valued at $13,800. When the loader was returned it was valued at $40,000.
[13] Mr Nicholas is 30 years old and had only one minor unrelated previous conviction. He pleaded guilty to the charge of theft.
[14] The pre-sentence (PAC) report assessed him as low risk of reoffending and low risk of harm. The recommendation was for a sentence of community detention with daily curfew from 9 pm to 6 am.
The District Court decision
[15] Judge Cameron set out the facts in accordance with the summary of facts. The Judge also noted the appellant’s limited criminal history — one offence of driving
while suspended in 2016. The Judge also noted that the PAC report assessed the appellant at a low risk of reoffending.
[16] The Judge said that the appellant was seeking a conviction and discharge given that his truck had been stolen and that was the catalyst for what then occurred. The Crown position, as recorded in the sentencing notes, is that the defendant was requested on many occasions to return all the beehives and the bees while they were still alive. However, he made a decision not to. The Judge referred to the value of the bees. There were 84 colonies of bees, and at $400 per colony the total value was
$33,600.
[17] Reparation was sought but the charge relating to the bees themselves was withdrawn at the time the defendant pleaded guilty to the theft charge.
[18] The Judge said that the defendant had ample opportunity to return the items that were not his and never had been, including live bees, and made a callous decision not to do so. The Judge proceeded on the basis that the loader had not been returned.
[19] The Judge found that a conviction and discharge would not adequately hold the appellant accountable for his actions. Judge Cameron noted that at one point the appellant had sought a sentence indication which resulted in an indicated starting point of 15 months’ imprisonment. The defendant declined to accept that indication.
[20] The PAC report recommended community detention and Judge Cameron viewed that as the appropriate penalty, together with reparation. The Judge concluded that the least restrictive outcome was six months’ community detention. Accordingly, on the charge of theft the defendant was convicted and sentenced to six months’ community detention. An order was made for reparation.
The approach on sentence appeals
[21] An appellant may appeal against sentence as of right under s 244 of the Criminal Procedure 2011.
[22] An appeal against sentence must be allowed if the appellate court is satisfied that for any reason there is an error in the sentence imposed and that a different sentence should be imposed.2 In any other case, the appellate court must dismiss the appeal.3 Sentencing is not a science, and an appellate court will not intervene unless the end sentence is outside the range available to the sentencing judge.4 An appellate decision is focused on the end result rather than the process by which the sentence was reached.5
[23] When allowing an appeal on the basis that there was an error in the sentence imposed, the appellate court may: set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate; vary the sentence or any part of the sentence or any condition of sentence; or remit the sentence to the court that imposed it.6
[24] The appellate court does not start afresh or simply substitute its own opinion for that of the sentencing judge. Rather, it must be shown that there was an error, whether intrinsically or because of additional material submitted on appeal.7 The court will not intervene where a sentence imposed is within a range that could be properly justified by accepted sentencing principles.8
Discussion
[25] Sentences of community detention may be imposed if the court is satisfied that a sentence of community detention would achieve one or more of the following purposes:9
(a)to hold the offender accountable;
2 Criminal Procedure Act 2011, s 250(2).
3 Section 250(3).
4 Palmer v R [2016] NZCA 541 at [17]; and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
5 Kumar v R [2015] NZCA 460 at [81].
6 Criminal Procedure Act, s 251.
7 R v Shipton [2007] 2 NZLR 218 (CA) at [139].
8 Tutakangahau v R, above n 4, at [30].
9 Sentencing Act 2002, s 69C(1)(a)(ii).
(b)to promote a sense of responsibility;
(c)to denounce the conduct; and
(d)to deter the offender or others from committing the same or similar offending.
[26] The court must also be satisfied that an electronically monitored curfew is appropriate, taking into account the nature and seriousness of the offence, alongside the circumstances and background of the offender.10
[27] At [6] of his sentencing notes Judge Cameron expressly recognised, in imposing an appropriate end sentence, the need to:
(a)hold the offender accountable;
(b)denounce the conduct; and
(c)deter the offender from committing the same or similar offending.
[28] The respondent submits that given the Judge turned his mind to these purposes at sentencing, there is no error in the approach taken.
[29] As to the seriousness of the offence, the Court of Appeal in R v Varjan outlined several factors that can determine culpability in dishonesty offending.11 Those factors include the nature of the offending, its magnitude and sophistication; the type, circumstances, and number of victims; the amounts involved; the losses; the period of which the offending occurred; the seriousness of breaches of trust involved; and the impact on victims. An assessment of culpability involves comparison with other cases. Matters of mitigation such as reparation, cooperation with investigators, plea, remorse and personal circumstances necessarily must be assessed in each particular case.
[30]The Crowns identifies the following aggravating features:
10 Sentencing Act 2022, s 69C(1)(b).
11 R v Vajran CA97/03, 26 June 2003 at [22]–[23].
(a)Premeditation, in that the appellant and three associates went to the victim’s address to recover the appellant’s truck which had been stolen a month prior to the offending.
(b)There was an element of vigilante action involved in the offending.
(c)Loss was caused.
(i)The loader was purchased in 2016 for $64,900. At the time of the offending the loader was valued at $59,000. At the time of its return in 2024 (in a damaged form) it was valued at $40,000. Subtracting the latter figure with the former produces a net loss of $19,000.
(ii)The victim lost 60 beehive boxes as a result of the offending (84 were taken, 24 were returned). The bees inside the returned beehives were dead. At the time of the offending, the beehive boxes were valued at $230 each (a total of $13,800). The bees were valued at least $400 per hive (a total of $33,600). A total loss attributable to the bees and the hives is $47,400.
[31] The respondent also refers to the case of Moule v Police where a defendant stole a digger valued at $86,000 from a hire company.12 In that case a starting point of 21 months’ imprisonment was upheld on appeal. The Crown says that both this case and Moule involve a single occasion theft of a high value machine. Although, it accepts that certain distinctions can be made with Moule as there was a higher level of premeditation, efforts were made to disguise the offending and the defendant had a history of dishonesty offending.
[32] In this case, a significant difference is that there was a high level of provocation in that the appellant’s vehicle had been stolen and he retrieved it. And in the context of retrieving it, he took items of a significant value that did not belong to him. This was not a commercial theft purely for financial gain. It was in part a retrieval of the
12 Moule v Police HC Whangārei CIV 2008-488-000035, 8 July 2008.
appellant’s own property during which the appellant took high value items contained in or attached to his truck. It is a quite different factual scenario to that in Moule.
[33] The appellant says that the sentencing Judge failed to consider the victim’s conduct pursuant to s 9(2)(c) of the Sentencing Act. However, Judge Cameron referred to the victim’s conduct at [7] of the sentencing notes. The Judge commented on the fact that the appellant’s vehicle had been stolen from him.
[34] The appellant submits that the sentencing Judge should not have taken any account of his actions involving the bees and beehives because the charge relating to that was withdrawn. I do not agree with that submission. That was inevitably part of the overall offending, regardless of whether or not there was a separate charge. There is no doubt that factors in a summary of facts which aggravate offending can be taken into account, whether or not those facts were the subject of a separate charge.
[35] The overwhelming factor which influenced the sentencing Judge was the appellant’s actions in retaining items that did not belong to him and then continuing to retain them when asked to return them, with the knowledge that the livestock could die. Judge Cameron did specifically turn his mind to the fact that the appellant’s vehicle had been stolen from him but was more influenced by the fact that there were repeated attempts to contact the appellant to recover the property and prevent the bees from dying.
[36] It became apparent in the course of the hearing that the sentencing Judge proceeded on an incorrect factual basis, namely that the loader had never been returned. The sentencing notes record the Judge’s understanding that the loader remained outstanding. That is a significant issue because it meant that the Judge proceeded on the basis that the level of reparation offered in respect of the loader, which was $19,000, was significantly below the level of actual loss. In fact, the reparation represented the actual loss based on the depreciated value and damage.
[37] The offer of reparation was no doubt an important factor in this sentencing. Without the offer of reparation and without the element of provocation the sentence of
six months’ community detention would have been manifestly inadequate. It is therefore clear that the sentencing Judge did take into account those matters.
[38] The appellant’s actions in this case amounted to vigilante action. He did more than simply recover his own property; he imposed a punishment upon the victim which was not his place to impose. I note that the victim was himself eventually sentenced to imprisonment for receiving the defendant’s vehicle.
[39] Vigilante action needs to be discouraged and I find no fault with the approach taken by the sentencing Judge. Sentencing, as I have said previously, is not an exact science and there is a range of available sentencing options. On the facts as the Judge understood them to be, I do not agree that an error was made. It was open to the Judge to reach to conclusion that the end sentence of community detention was the least restrictive sentencing option available in all of the circumstances. I note that the PAC report also recommended a sentence of community detention.
[40] Mr Nicholas says that a sentence of community work would be preferable. The PAC report specifically addresses community work and says that such a sentence was considered but the appellant said that this would impact his self-employment and time with his young family. Given that, it cannot be said that there was any error in the imposition of community detention, rather than community work.
[41] The sentencing process did miscarry however because the facts as presented to the Judge were incorrect. The sentencing proceeded on an inaccurate factual basis, namely that the stolen loader valued at $59,000 was not returned. I consider that this was material. Because the loader was returned, the reparation paid amounted to full or almost full reparation so far as the loader was concerned. In my view this would have inevitably affected the outcome.
[42] I consider that the imposition of a punitive element to the sentence was correct. A conviction and discharge with an order to pay reparation would not meet the purposes and principles of sentencing, primarily those of denunciation and deterrence. Vigilante action will often be provoked by the actions or perceived actions of the victim. That cannot be seen as justification. In this case Mr Nicholas retained property
that did not belong to him. He caused significant damage, and he did not return any of the property in a timely manner.
[43] The imposition of community detention was further correct. That reflects the appellant’s failure to return any of the hives in time to save the bees, as well as the fact that most of the hives remained outstanding. It also reflects the fact that the loader was not returned for a significant period of time. And when it was returned, it was damaged. Community detention was the sentence recommended in the PAC report and, as discussed above, Mr Nicholas told the report writer that community work would affect his employment and time with his family.
[44] The sentence of community detention imposed was the maximum available and, on the facts known to the Judge, was appropriate. On appeal however it became apparent that the loader was returned, and the amount of reparation amounted to almost full compensation in respect of the loader (although not in respect of the bees and hives). In those circumstances I consider that the period of community detention must be reduced.
Result
[45]The appeal is allowed.
[46] The sentence of six months’ community detention is quashed and replaced with a sentence of four months’ community detention.
[47]The sentence is otherwise unchanged.
Wilkinson-Smith J
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