Nuku v Police

[2025] NZHC 2865

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2025-483-34

[2025] NZHC 2865

BETWEEN

NATASHA NUKU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	29 September 2025
Appearances:	A S C Brosnahan for Appellant A N Kearney for Respondent
Judgment:	30 September 2025

JUDGMENT OF GWYN J

[Sentencing appeal]

Introduction

[1]    Natasha Nuku, the appellant, pleaded guilty to one charge of possession of methamphetamine for supply.1 She was sentenced on that charge to 27 months’ imprisonment on 30 July 2025.2

[2]    Ms Nuku now appeals against her sentence on the ground that it is manifestly excessive. Her counsel, Mr Brosnahan, submits that Judge Andrée Wiltens erred in adopting  an  excessive  starting  point  and  giving  insufficient  consideration  to  Ms Nuku’s remorse and prospects of rehabilitation.

1      Misuse of Drugs Act 1975, ss 6(1)(f) and (2).

2      Police v Nuku [2025] NZDC 19146 [Decision under appeal].

NUKU v POLICE [2025] NZHC 2865 [30 September 2025]

[3]    The Police’s position on appeal is that, while sufficient credit was applied for personal mitigating features, the Court may find that the end sentence is manifestly excessive. This is because, the Police concede, the starting point adopted by the Judge was too high, and the Judge incorrectly applied the Moses sentencing methodology.3

Factual and procedural background

[4]    On 19 June 2024, Ms Nuku was on prison release conditions for three firearms charges and one charge of possessing/using utensils for methamphetamine. Those conditions included a non-association order with an associate. Ms Nuku was located in the front seat of a vehicle with the associate, and a search of the vehicle located

3.17 grams of methamphetamine and drug dealing tools and paraphernalia. Ms Nuku pleaded guilty to possession of methamphetamine for supply and breach of release conditions. On 8 October 2024, Judge Marinovich sentenced Ms Nuku to 11 months’ imprisonment.4

[5]    By 10 March 2025, Ms Nuku was on release conditions at an address in Whanganui. A search warrant was carried out at the address. While sitting at the kitchen table, she removed a small plastic container from her property and attempted to discard it on the floor. The container included approximately 3.5 grams of methamphetamine.

[6]    Ms Nuku was arrested. Two glass pipes were located on her person. A tick book with various names and amounts owed to her, a set of electronic scales, and new and used zip lock point bags were in her property.

[7]    Ms Nuku pleaded not guilty at her first appearance. She entered a guilty plea at a case review hearing on 10 June 2025 (which, aside from bail hearings, was her second court appearance on the charge).

3      Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

4      Police v Nuku [2024] NZDC 24611.

Decision under appeal

[8]    Judge Andrée Wiltens noted the above facts and referred to the 3.5 grams of methamphetamine as “on one view, … not a lot; on another view, it is quite a bit, depends on what you do with it.”5 He also described the tick book as “revealing”:6

… it shows that you are in the habit of selling point bags, i.e. relatively small,

0.1 gram amounts of methamphetamine in a tiny little plastic bag for a $100 a shot. On that basis, what you have got is $3,500 worth of methamphetamine, less what you were going to use for yourself and I do not know what that is, even though you say that you are addicted and have been for a long time, I do not know what the rate of consumption is for you, but there is no doubt that you were in possession of those drugs to supply to a large number of other members in the community and that is the problem. That is what aggravates this offending and makes it worth a maximum of life imprisonment.

[9]    The Judge referred to the authorities of Zhang and Berkland and said that he would “have to decide between a community-based sentence going up to a start point of four years’ jail.”7 The Judge noted the recency of this offending to Ms Nuku’s previous drug offending, which he said “would ordinarily put [her] at four years’ imprisonment.”8 He then reduced the start point to three years’ imprisonment to take account of Ms Nuku’s drug addiction.9 He acknowledged that this start point was “nowhere near as low” as the start point of eight to 12 months’ imprisonment sought by her counsel, but that:10

… what I see here is a deliberate concerted effort by you to help yourself with your addiction by polluting the community with more methamphetamine and large number of members of the community.

[10]   From that starting point,  the  Judge  applied  a  25  per  cent  discount  for  Ms Nuku’s guilty plea, but declined to apply credit for remorse or prospects for rehabilitation:

[12]      ... The apology letter I am afraid counts for very little. What really counts is if you do not do it again and I cannot predict what that is going to be because no doubt you have provided an apology letter at the last occasion too

5 Decision under appeal at [1].

6 At [8].

7      At [9] citing Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648; and Berkland v R [2022] NZSC 143.

8 At [10].

9 At [11].

10 At [11].

and you have not abided by the terms of that letter, you have just gone ahead and offended again immediately.

[13]      You want to go and look after your kids, well that depends on you. While you are in custody this time, you will have the opportunity of doing some courses, some programmes, that will help you to get rid of you addiction if that is what you want. As I say, it depends on you.

[14]      I am imposing 27 months’ imprisonment today in the hope that you take advantage of the opportunities offered while in custody and that we do not then see you again.

[11]Ms Nuku was sentenced to 27 months’ imprisonment.

Approach on appeal

[12]   The appellant’s right of first appeal against sentence is under s 244 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against the Judge’s discretion.11

[13]   In order to succeed, Ms Nuku must show that there was an error in the sentence reached and that a different sentence should have been imposed.12 The Court will not intervene where the sentence is within the range available to the sentencing Judge.13 The Court will intervene only if the sentence is manifestly excessive.14 An appellant Judge is to allow “a respectable margin of appreciation for the judgment of the trial Judge, particularly bearing in mind that sentencing is not a science”, by not “tinkering” with the sentence.15

Issues

[14]   Neither counsel take issue with the 25 per cent discount given for Ms Nuku’s guilty plea. From their submissions, there are six other issues for me to consider:

(a)Did the Judge err in taking Ms Nuku’s previous offending and/or addiction into account when setting the starting point?

11     Filivao v R [2024] NZCA 103 at [30].

12     Criminal Procedure Act 2011, s 250(2).

13     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

14     Kumar v R [2015] NZCA 406 at [81].

15     Kay v R [2024] NZCA 1 at [36] citing R v Boyd (2004) 21 CRNZ 169 (CA) at [38].

(b)Did the Judge err in setting a starting point of three years’ imprisonment?

(c)If the Judge erred in taking Ms Nuku’s previous offending into account when setting the starting point, what uplift should he have applied?

(d)If the Judge erred in taking Ms Nuku’s addiction into account when setting the starting point, what discount should he have given?

(e)Did the Judge err in not providing credit for further personal mitigating factors?

(f)If the Judge did err in any way, was the end sentence of 27 months’ imprisonment manifestly excessive?

Did the Judge err in taking Ms Nuku’s previous offending and/or addiction into account when setting the starting point?

[15]   The sentencing Judge referred to the fact that this was Ms Nuku’s second such conviction in a very short time and said “… that would ordinarily put you at four years’ imprisonment’.16 The Judge went on to say “ … the explanation for this is your own addiction and therefore I am prepared to reduce the start point down to three years jail but that is as low as I can go”.17 From this it appears that Ms Nuku’s addiction was taken into account in setting the starting point.

[16]   Ms Brosnahan submits that the Judge was wrong to place significant weight on Ms Nuku’s previous convictions when assessing the starting point. Instead, the Judge should have fixed the starting point with reference to quantum and role, and from theredetermined a proportionate uplift for previous conviction history.

[17]   Ms Kearney, for the Police, rightly accepts that the Judge was in error, citing Moses.18 That case provides that a two-step methodology should be used. The first step is to reach an adjusted starting point, incorporating aggravating and mitigating

16 Decision under appeal at [10].

17 At [11].

18     Moses v R, above n 3.

features of the offence, while the second step incorporates all aggravating and mitigating factors personal to the offender, which should be calculated as a percentage of the adjusted starting point.19

[18]   For some offences, such as driving while disqualified (third or subsequent), the nature of that offence means an offender’s criminal history is directly related to the seriousness of their offending.20 But that is not the case for methamphetamine offending; having possessed methamphetamine for supply previously does not make possessing methamphetamine for supply again any worse. What matters when setting the starting point is the amount of methamphetamine at issue and the offender’s role in the drug dealing operation. For that reason, I accept Ms Brosnahan’s submission that the Judge erred in taking Ms Nuku’s prior offending into account when setting the starting point.

[19]   For the same reason, I also accept Ms Kearney’s submission that the Judge erred in adjusting Ms Nuku’s starting point to take account of her methamphetamine addiction. Although the basis for such a discount is due to the causative effect the addiction has on the offending, that does not mean that it is not a personal mitigating factor. It would have been more appropriate for addiction to have been taken into account as a personal mitigating factor, as Zhang describes, not in setting the starting point.21

Did the Judge err in setting a starting point of three years’ imprisonment?

[20]   Both counsel accept that the starting point adopted by the Judge was excessive. The quantity of methamphetamine at issue (3.5 grams) places Ms Nuku within Band One of Zhang, which provides for a sentence range of a community-based sentence up to four years’ imprisonment.22

[21]   Ms Brosnahan cites the cases of Steyn v R and Sherriff v R, where a starting point of two years and nine months’ imprisonment was adopted for 23.3 and

19 At [46].

20     See discussion in R v Kimber [2025] NZHC 1906 at [30].

21     Zhang v R, above n 7, at [126] and [137]. See, for example, R v To’ofohe [2025] NZHC 1184 at [63]–[69].

22     Zhang at [125].

28.96 grams of methamphetamine respectively.23 Counsel says it is difficult to see how, when looking at quantum alone, the starting point for Ms Nuku could be greater than in both of those cases. Ms Brosnahan says that, when considering Ms Nuku’s “street level subsistence dealer role”, an appropriate starting point ought to be no more than eight to 12 months’ imprisonment. On discussion with counsel, it was clarified that this starting point takes account of a discount for Ms Nuku’s addiction.

[22]   Ms Kearney cites the case of Henderson v Police. Mr Henderson was found with four grams of methamphetamine, two glass pipes, a number of small snap lock bags, scales, a tick book, two rolled-up banknotes and $864 cash.24 On appeal, Mallon J considered the appellant’s role best fit into the lesser category, which indicated a starting point materially below the top of Band One. There was no evidence that suggested the appellant was involved in a wider operation and had knowledge of its scale. The Court held a starting point in the region of two years’ imprisonment would appropriately reflect the appellant’s culpability given the quantity of drugs and his role.

[23]   I accept Ms Kearney’s submission that Ms Nuku’s offending is, on its face, directly analogous to Henderson. Both involve a similar amount of methamphetamine (3.5 grams here, four grams in Henderson), offenders who effectively ran a one-person operation and offenders who were not involved in a wider operation.

[24]As to role, in Berkland v R Williams J noted:25

… there is no reason in principle why role cannot be even more impactful than quantum if justified in the circumstances. This may well be the case, for example, if the circumstances demonstrate that, irrespective of quantum, the offender’s role in relation to it falls within the lower end of “lesser”.

[25]   As Ms Kearney submits, while the Judge particularly noted the tick list found in Ms Nuku’s possession, the summary of facts does not include any other indications that Ms Nuku was involved in a wider operation or had knowledge of the scale of any drug dealing operation.

23     Steyn v R [2023] NZHC 3359; and Sherriff v R [2021] NZHC 3414.

24     Henderson v Police [2021] NZHC 78.

25     Berkland v R, above n 7, at [64].

[26]   I accept that, as in Henderson, the appellant’s role is in the “lesser” category and indicates a starting point materially below the top of Band One. Ms Kearney submits that, on that basis, a start point of two years’ imprisonment would be warranted.

[27]   Ms Brosnahan submits that, while Henderson is analogous as to quantity and role, it is no longer relevant in terms of the appropriate starting point. In counsel’s submission, there are limited number of authorities that assist with sentencing where quantum is at the lower end. The case she refers to, Steyn, is more recent and, she submits, more indicative of the appropriate sentencing range where small quantities of methamphetamine are involved.

[28]   In Steyn, Andrew J accepted there was “some merit” in the the appellant’s submission that a starting point of two years and nine months’ imprisonment for

23.3 grams of methamphetamine was too high,26 although the Judge did not ultimately

agree that the overall sentence was manifestly excessive.

[29]   In Sherriff v R, the other case referred to by Ms Brosnahan, the appellant pleaded guilty to possession for supply of 28.96 grams of methamphetamine. The District Court adopted a starting point of two years and nine months’ imprisonment. That starting point was not challenged on appeal.

[30]   I also note the more recent case of Clement v Police, in which Judge Rzepecky imposed a community-based sentence for offering to supply 3.35 grams of methamphetamine, but said if a sentence of imprisonment were to be imposed, the likely end sentence would be between six and nine months. On appeal, Downs J agreed that the Judge’s methodology was “opaque” as he had not set a starting point but referred to the Judge’s approach as “sympathetic”.27 His Honour also said that  Ms Clement’s offending “could have attracted a sentence of imprisonment, but the Judge appropriately stepped back from that.”28 He did not criticise the indicated prison sentence.

26     Steyn v R, above n 23, at [25].

27     Clement v Police [2025] NZHC 587 at [5] – [6].

28 At [7].

[31]   I accept that the starting point adopted by the Judge in this case was excessive, having regard to Ms Nuku’s role and the amount of methamphetamine involved. There is no precise calculator that can assist with the exercise of setting a starting point, but I agree with Ms Brosnahan that Steyn and Sherriff do assist in the calibration exercise, and I consider that Clement does as well.

[32]    In my view a starting point of 18 months’ (one year and six months’) imprisonment is appropriate.

Uplift for previous offending

Submissions

[33]   Ms Brosnahan says that, although the Judge was wrong to place significant weight on Ms Nuku’s previous convictions, a proportionate uplift for previous conviction history was warranted. Ms Brosnahan submits that an uplift of 10 per cent (on her proposed starting point, six weeks) for relevant previous convictions would be proportionate.

[34]   Ms Kearney accepts that the uplift applied should be proportionate in the circumstances and should bear a reasonable relationship to the sentence imposed for the previous offence.29    Counsel says that the fact the offending occurred while     Ms Nuku was subject to release conditions may be taken into account as an aggravating factor.30 Ms Kearney submits that an uplift not exceeding six months’ imprisonment is warranted.

Analysis

[35]   Based on the authorities cited to me, I accept that an uplift of three months for previous offending and for the fact that this offending occurred while the appellant was subject to release conditions, is appropriate.

29     Citing Patel v R [2017] NZCA 234 at [61]; and Thomas v R [2020] NZCA 257 at [18].

30     Robertson v R [2016] NZCA 99 at [79].

Addiction

[36]    Judge Andrée Wiltens referred to Ms Nuku’s addiction,31 but did not elaborate on it. The Provision of Advice to Courts (PAC) report noted that the drug and alcohol screening tool implemented when Ms Nuku was interviewed indicated that she has a high risk of experiencing problems as a result of her pattern of use.

Submissions

[37]   As noted above, Ms Brosnahan had included an allowance for addiction in her proposed starting point. She submits that, if it were to be calculated at the second stage, a total discount of 15 per cent for all personal factors would be appropriate.

[38]   Ms Kearney submits that the Judge effectively afforded a 25 per cent discount for Ms Nuku’s addiction (adjusting the starting point from four years to three years). Ms Kearney submits that it is open for the Court to conclude there is a causal connection between the offending and Ms Nuku’s addiction allowing for a reduction in sentence of 10 to 15 per cent.

Analysis

[39]   Although there is little information before the court about Ms Nuku’s addiction, I am prepared to accept that there is a causal connection between that addiction and this offending.   I accept that a discount for addiction is appropriate.     I apply a discount of five per cent (as I also apply a discount for other personal mitigating factors below).

Personal mitigating factors

Submissions

[40]   Ms Brosnahan submits that the Judge erred in rejecting Ms Nuku’s remorse letter, her safety plan, and her intentions to relocate out of the Whanganui area to Gisborne. She points to the PAC report, which states that Ms Nuku suffered significant trauma both as a child and as an adult as a result of neglect and violence. Ms Nuku

31 At [11].

had shown insight in respect of her offending and how she could have better dealt with the situation she was in.

[41]   Ms Brosnahan submits that Ms Nuku’s desire to make positive changes in her life and her prospects of rehabilitation ought to have been recognised by way of sentence reduction. She also says that the Judge failed to recognise the impact of a lengthy term of imprisonment on Ms Nuku’s three children, who reside with her mother with stage 4 lung cancer. Ms Brosnahan says that credit of 10 per cent should have been given for insight, prospects of rehabilitation, and the impact of imprisonment on children.

[42]   Ms Kearney says that it was open for the Judge to conclude that prospects of rehabilitation were not the dominant sentencing aim. Ms Nuku reoffended while subject to sentence and was before the Court again shortly after being released from prison.

Analysis

[43]The Judge observed:32

The apology letter I am afraid counts for very little. What really counts is if you do not do it again and I cannot predict what that is going to be because no doubt you have provided an apology letter at the last occasion too and you have not abided by the terms of that letter, you have just gone ahead and offended again immediately.

[44]   As the Court of Appeal said in Zhang,33 “…addiction calls in to question the effectiveness of deterrence, in the same way that a mental health issue may do”. That reality must be borne in mind when considering Ms Nuku’s rehabilitation prospects. The path to rehabilitation is seldom a straight one. The PAC report writer recognised Ms Nuku’s motivation to address her offending. The report indicates a degree of self- awareness by Ms Nuku of how she finds herself in a situation where she offends and how she might better deal with that. In the particular circumstances of this case, where Ms Nuku’s young children are living with her mother who is terminally ill, there is both a need and an opportunity for Ms Nuku to make good on her promises.

32 At [12].

33     Zhang, above n 7, at [146].

[45]   Having regard to Ms Nuku’s family situation as well as her own history of trauma and abuse, both as a child and in adult relationships, I conclude that the Judge did err in failing to give credit for Ms Nuku’s personal circumstances. In my view, a discount of 10 per cent (in addition to the five per cent discount for addiction) is appropriate.

Was the end sentence of 27 months’ imprisonment manifestly excessive?

[46]   On the Police’s calculations, an end sentence of between 18 and 21.5 months’ imprisonment would have been appropriate. Having regard to all of Ms Kearney’s submissions, an end sentence of 27 months’ imprisonment was manifestly excessive.

[47]I have found that Ms Nuku should have been sentenced as follows:

(a)a starting point of 18 months’ imprisonment;

(b)an uplift of three months for prior offending and offending while subject to conditions;

(c)credit of 25 per cent (rounded up to five months) for guilty plea; and

(d)total discounts of 15 per cent (rounded up to three months) for personal mitigating factors, including addiction;

(e)resulting in an end sentence of 13 months’ (one year and one month’s) imprisonment.

[48]   That is well below 27 months’ (two years and three months’) imprisonment. I conclude that the end sentence of 27 months’ imprisonment was manifestly excessive.

Conclusion

[49]The appeal is allowed.

[50]An end sentence of one year and one month’s imprisonment is substituted.

[51]   Home detention was not specifically sought by Ms Nuku’s counsel on the basis that its utility would be limited if the Court accepted counsel’s submissions on starting point, and having regard to the time Ms Nuku has already spent in custody.

[52]   Ms Nuku has, at the time of writing, already served more than one half of her substituted sentence (Ms Brosnahan  says  she  has  been  in  custody  since  10  or  11 March), so the utility of home detention would be very limited. For that reason, I do not address it further.

Gwyn J