Nicholas v The King - [2025] NZHC 2590

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nicholas v The King

Details

AGLC: Nicholas v The King [2025] NZHC 2590
Case: [2025] NZHC 2590
Decision Date: 8 September 2025

CaseChat Overview and Summary

Elijah Nicholas appeals against the six months’ community detention sentence imposed by Judge I D R Cameron on 22 May 2025. The sentence was imposed in respect of one charge of theft, in addition to an order to pay $32,800 in reparation. Nicholas argues that the community detention element of the sentence was unreasonable and manifestly excessive, and that community detention was not the least restrictive outcome appropriate in all circumstances of the case. The Crown opposes the appeal, arguing that the sentence was appropriate and not manifestly excessive, especially considering the maximum penalty was three years’ imprisonment and the prolonged and callous nature of the offending.

The court held that while the sentence of community detention was appropriate on the facts as the sentencing judge understood them to be, there was a miscarriage of the sentencing process due to an inaccurate factual basis. The sentencing judge proceeded on the basis that the stolen loader had not been returned, which was incorrect. As a result, the reparation paid amounted to full or almost full reparation, which would have inevitably affected the outcome. The court found that the imposition of a punitive element to the sentence was correct, and that community detention was the appropriate sentence given the appellant’s failure to return any of the hives in time to save the bees, the fact that most of the hives remained outstanding, and the loader was not returned for a significant period of time. However, the court considered that the period of community detention must be reduced to four months. The appeal is allowed, and the sentence of six months’ community detention is quashed and replaced with a sentence of four months’ community detention. The sentence is otherwise unchanged.

Orders