Nuku v Police
[2025] NZHC 919
•14 April 2025
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2025-441-3
[2025] NZHC 919
BETWEEN STACEY VICTORIA NUKU
Applicant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 9 April 2025 Appearances:
E J Forster for Applicant M Mitchell for Respondent
Judgment:
14 April 2025
JUDGMENT OF McHERRON J
[1] On 11 February 2025, Judge Matenga sentenced Stacey Nuku to two years and two months’ imprisonment on two sets of charges: 1
(a)first, the index offending comprising two charges of burglary,2 two charges of theft (under $500)3 and one charge of trespass;4
(b)second, charges for previous offending on which a sentence of intensive supervision had been imposed but not complied with, necessitating a cancellation of the intensive supervision sentence and a review of the charges: five charges of theft (one exceeding $1,000,5 one exceeding
1 New Zealand Police v Nuku [2025] NZDC 2509.
2 Crimes Act 1961, s 231(1)(a); maximum penalty of 10 years’ imprisonment.
3 Sections 219 and 223(d); maximum penalty of three months’ imprisonment.
4 Trespass Act 1980, ss 4(4) and 11(2)(a); maximum penalty of three months’ imprisonment.
5 Crimes Act, ss 219 and 223(b); maximum penalty of seven years’ imprisonment.
NUKU v NEW ZEALAND POLICE [2025] NZHC 919 [14 April 2025]
$500,6 and three under $500),7 one charge of trespass,8 one charge of failing to answer bail9 and two charges of breach of release conditions.10
Offending
Index offending
[2] On 10 March 2024, Ms Nuku stole items valued at $380.47 from a petrol station by concealing them in her clothing and leaving the store without paying for them. On 18 March 2024, she stole wine glasses valued at $180 from a store. These two offences make up the two charges of theft.
[3] On 26 April 2024, Ms Nuku went to a supermarket that she had been trespassed from on 20 July 2023 for two years. This event makes up the charge of trespassing.
[4] The two charges of burglary arise out of two incidents that took place on 13 May 2024. At 9.19am, Ms Nuku and two others went into the main lodge building of Farmhouse Lodge and took three new air conditioning units, valued at $2,500 each. They loaded them into a vehicle and drove away. Later that day Ms Nuku and one other went into the building again and took six exhaust fans, boxes of metal brackets and a large amount of leather, together valued at $4,050.00. They loaded the items into the same vehicle and then left the address. In total, Ms Nuku burgled items from Farmhouse Lodge worth $11,550.00.
Previous offending for resentencing
[5] In July 2022, Ms Nuku stole five watches valued at $2,500 and separately stole items from the Baby Factory, valued at $748, and then from Kmart, valued at $500. In November 2022, she trespassed at a supermarket, stole minor food items valued at
$11.97 and separately stole some school uniforms from the Uniform Shop. The total value of the items across all five theft charges was $3,990.97.
6 Sections 219 and 223(c); maximum penalty of one year’s imprisonment.
7 Sections 219 and 223(d); maximum penalty three months’ imprisonment.
8 Trespass Act, ss 4(4) and 11(2)(a); maximum penalty of three months’ imprisonment.
9 Bail Act 2000, s 38; maximum penalty of one year’s imprisonment.
10 Parole Act 2002, s 71; maximum penalty of one year’s imprisonment.
[6] Ms Nuku also breached court release conditions, court bail, and general release conditions.
[7] Ms Nuku was originally sentenced to 12 months of intensive supervision on these charges on 1 November 2023.11 However, she did not comply with the conditions of intensive supervision by refusing to complete the induction or engage with the probation officer, leading to an application for the sentence to be reviewed.
District Court decision
[8] By the time of the sentencing on 11 February 2025, Ms Nuku had been remanded in custody for a total of 362 days.12 She had also spent two days on electronically monitored bail.
[9] The Judge reached the end sentence of two years and two months’ imprisonment in the following way. First, he took the burglary offending as the lead charges. On those charges, he imposed a starting point of two years’ imprisonment, taking into account Ms Nuku’s apparent premeditation in respect of the second burglary, the value of the items taken, and the fact there were three people involved. Second, he added two uplifts totalling eight months:
(a)the first was two months to reflect the balance of the index offending; and
(b)the second was six months to both reflect the fact the index offending was committed whilst Ms Nuku was subject to the sentence of intensive supervision and to reflect the previous offending itself.
[10] This led to a global starting point of 32 months’ imprisonment. The Judge cancelled the sentence of intensive supervision and did not separately resentence on
11 New Zealand Police v Nuku [2023] NZDC 24274.
12 Ms Nuku has, as at the date of the hearing, been in custody for 419 days. Under s 84(1) of the Parole Act, Ms Nuku would be eligible to be considered for parole after one third of her sentence. That means she is eligible to be considered for parole. The Parole Board retains the ability to recall offenders who have breached their release conditions until the end date of the sentence imposed.
Ms Nuku’s previous charges, instead having incorporated uplifts for those previous charges into the starting point on the index offending.
[11] Third, the Judge applied discounts totalling 25 per cent, made up of 15 per cent for Ms Nuku’s guilty plea to the index offending and 10 per cent to acknowledge Ms Nuku’s remorse, her new willingness to engage in rehabilitation and her personal difficulties. This led to a sentence of 24 months’ imprisonment.
[12] Fourth, the Judge added an uplift of two months to reflect Ms Nuku’s significant conviction history for dishonesty offending.
[13] The Judge also remitted fines owing by Ms Nuku totalling $4,169, taking into account the time she had spent in custody.
Positions on appeal
[14] Ms Nuku appeals solely on the basis that the six-month uplift imposed to reflect her previous offending was too high. Mr Forster, her counsel, puts it on the basis that the six-month uplift reflected her breach of intensive supervision. He accepts that the six-month uplift “may well have factored in” Ms Nuku’s previous offending, but seems to say that does not make sense when there was an uplift imposed rather than a standalone sentence on the previous offending charges. Mr Forster submits that six months was too high an uplift given that six months is the maximum penalty for a charge of breaching intensive supervision, and Ms Nuku pleaded guilty so ought to have been given a discount. Further, the uplift did not account for the totality of the offending. Additionally, Mr Forster points out that Ms Nuku had, by then already served 94 days on remand, the equivalent of a six month sentence, before being sentenced to six months’ intensive supervision on the same offending.
[15] The Crown submits, to the contrary, that the six-month uplift was not imposed on a charge of breaching intensive supervision. Instead, the Judge imposed the uplift to reflect the eight charges which were the subject of Ms Nuku’s previous offending, as her sentence of intensive supervision was cancelled due to her failure to adhere to the sentence of intensive supervision.
[16] The Crown further submits that the six-month uplift was appropriate and can be seen as incorporating an implicit totality adjustment.
Legal approach to sentence appeals
[17] In Tutakangahau v R the Court of Appeal confirmed that a successful sentence appeal under s 250(2) of the Criminal Procedure Act 2011 requires both the identification of an error and the need for the appeal court to be satisfied that a different sentence “should” be imposed.13 The Court does not start afresh or simply substitute its own opinion for that of the original sentencer.14 Rather, the appellant must show there is a material error before the Court will go on to form its own view of the appropriate sentence.15 The Court will not generally intervene unless a sentence is manifestly excessive.16 Whether the sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached.17
Discussion
[18] The appellant has not persuaded me that the Judge erred. I agree with the Crown that it is clear from both the charges Ms Nuku was being sentenced on, and the plain wording of the judgment, that the Judge imposed the six-month uplift to implement a resentencing on Ms Nuku’s previous charges. For these, the maximum penalty was seven years’ imprisonment (for theft over $1,000). The resentencing also reflected the aggravating factor that Ms Nuku committed her index offending while subject to a sentence of intensive supervision.18 The uplift was not imposed in respect of a charge of breaching intensive supervision. This can be seen by the Judge’s use of the term “review” when describing the uplift:
[2] There is also a review of sentence which was imposed on you on 1 November 2023 of 12 months intensive supervision. …
…
13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
14 At [30].
15 At [30].
16 At [35].
17 At [30]–[36].
18 Sentencing Act 2002, s 9(1)(c).
[11] … I need to factor in the review and that at the time of this offending you were offending while on sentence, that being the sentence of intensive supervision. And so the way I intend to recognise that is that an uplift of six months is appropriate and on the review, the intensive supervision sentence will be cancelled.
[19] Accordingly there was no six month constraint in respect of the resentencing exercise. Further, I agree that the six month term imposed on resentencing was relatively generous, and was certainly within range, given the value of the property taken and the fact that fines were remitted.
[20] The Judge correctly added an uplift to reflect Ms Nuku’s previous offending, for which she effectively served no sentence, because she failed to comply with the terms of the sentence of intensive supervision. Under s 54K of the Sentencing Act 2002, on application a judge may cancel a sentence of intensive supervision and may also substitute it for any other sentence. There is nothing in s 54K to say that a judge cannot cancel a sentence of intensive supervision and, rather than substituting it for another sentence, factor in the previous offending as an uplift to the index offending. That approach is orthodox.
[21] It was also appropriate for the Judge to add an uplift to reflect the fact that the index offending took place while Ms Nuku was serving a sentence of intensive supervision. Such an uplift is not double-counting because it is premised on the disregard for Court processes demonstrated by an offender that offends whilst serving a sentence, rather than for the previous offending itself.19 Such uplifts can be within range even if considerable. For example, in R v Wilson the Court of Appeal considered that an increase to a starting point of 27 months by six months would have been justified for an offender who offended whilst on home detention.20
[22] The quantum of the uplift for those factors was appropriate and could, as I have said above, be seen as generous. I accept that the Judge did not explicitly account for the totality principle. That principle applies in resentencing exercises such as this to mean that the overall sentence must not be wholly out of proportion to the gravity of all of the offending (both the index offending and the previous offending). However,
19 Clunie v R [2013] NZCA 110 at [22].
20 R v Wilson [2008] NZCA 496.
I agree with the Crown that there was no error because the six-month uplift in my view incorporates a totality adjustment and did not make the end sentence manifestly excessive, for the following reasons.
[23] The Judge did not explain how he arrived at the figure of six months for the uplift. The charging sheet and summary of facts were not provided and so it is not clear if the offending was pre-meditated. I have assumed for the purposes of the present appeal that it was not. On that basis, I consider the six month uplift to have been within range. The Court of Appeal in R v Morgan explained how the quantum of a resentencing should be approached:21
[14] Where imprisonment is imposed in substitution for a community- based sentence, there will inevitably be a greater degree of hardship for the offender. That is legitimate. In such a case, the offender will have had the benefit of a less restrictive alternative than imprisonment but will have failed to take advantage of it. The re-sentencing Judge is likely to weigh the various purposes and principles of sentencing in a way that is different to that which occurred on the first sentencing. For example, where the community based sentence was imposed because the sentencing Judge placed particular weight on the offender's rehabilitation, that factor may assume less weight on re- sentencing given the offender's failure to comply with the community-based sentence.
[15] Accordingly, while we accept that there must be some proportionality between the sentence originally imposed and the substituted sentence, we do not consider that there can be any strict correlation between them, much less some mathematical formula. The essential point is that the substituted sentence must be one that could properly have been imposed initially; and it must be imposed against the background that a sentence of community work was thought initially to be appropriate. …
[24] The Judge who sentenced Ms Nuku to intensive supervision did not state what term of imprisonment he would have imposed but for the conversion to a community- based sentence, other than to say:
[4] You have effectively served a six-month prison sentence on all of these matters and I do not see much point in imposing a further term of imprisonment because it would not really reflect the level of the offending. …
[25] There is no tariff case for theft. The value of the items stolen is an important consideration when sentencing for theft, however, as demonstrated by the escalating
21 R v Morgan [2008] NZCA 232.
scale of penalties in the Crimes Act 1961.22 Having considered some other cases involving low level theft,23 I consider that if sentenced alone the previous offending charges could have resulted in a starting point of around eight months’ imprisonment.
[26] An uplift of six months, then, which incorporates not only the resentencing exercise but also an uplift to reflect the fact of Ms Nuku offending whilst subject to intensive supervision, is not excessive. Moreover, because the uplift was treated as contributing to the global starting point, Ms Nuku also received the benefit of the discounts for guilty plea and personal circumstances, including discounts that could be seen as solely applying to the index offending.
[27] Further, in relation to time spent in custody before sentencing, that will be factored into the calculation of the release date, and will also be a matter relevant to parole, the appellant now having served sufficient of her sentence to be eligible to apply for parole.
[28] In call the circumstances, it cannot be said that the end sentence was out of all proportion to the gravity of all the offending. Neither can it be said that the sentence was manifestly excessive.
Result
[29]Ms Nuku’s appeal is dismissed.
McHerron J
Solicitors:
Elvidge & Partners for respondent
22 R v Duncan [2009] NZCA 408 at [7].
23 New Zealand Police v Stenning [2023] NZHC 3477, which involved a starting point of nine months on the lead charge of receiving (over $1,000) with an uplift of four months for three charges of theft (one over $1,000, one between $500 and $1,000, and one under $500); and Davies v New Zealand Police [2019] NZHC 3081, which involved a starting point of eight months’ imprisonment on the lead charge of theft (over $1,000), with the remaining four theft charges (one over $1,000 and three between $500 and $1,000) and two breaches of community work or intensive supervision garnering an uplift of four months.
0
7
0