Oka v The King

[2025] NZHC 1090

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2025-419-21

[2025] NZHC 1090

BETWEEN

JEFFREY RICHARD CHARLES OKA

Appellant

AND

THE KING

Respondent

Hearing:	29 April 2025
Appearances:	C Hardy for Appellant L Glaser for Respondent
Judgment:	7 May 2025

JUDGMENT OF BECROFT J

[Appeal against sentence]

This judgment was delivered by me on 7 May 2025 at 3pm.

Registrar/Deputy Registrar

……………………………………

Solicitors/Counsel:

C Hardy, Hamilton

Hamilton Legal, Hamilton

OKA v R [2025] NZHC 1090 [7 May 2025]

The appeal

[1]    On 21 February 2025, Judge T R Ingram sentenced Mr Oka to 18 months’ imprisonment on an array of charges to which he had pleaded guilty.1

[2]    Mr Oka appeals against that sentence on the grounds that it is manifestly excessive.

[3]    The appeal ground is that the starting points for each of the three sets of charges he faced were manifestly excessive.

Summary of result

[4]    Ms Hardy has argued the appeal carefully and thoughtfully. However, in my view, it cannot succeed. The overall end sentence, which must be the primary focus of the appeal, while firm perhaps, is certainly not manifestly excessive.

[5]    This appeal shows the dangers in selectively focussing on some component parts of a sentence structure where there is said to be an error (in this case the starting points) while too conveniently ignoring other parts which might be said to be very favourable to an appellant. Here, generous reductions were given by the Judge that were greater than that argued for by the appellant. Also, the Judge did not uplift the sentence for significant offending while on bail which he certainly could have done.

[6]    Unless some specific component parts of a sentence structure have caused an error in the overall end sentence, then an appeal cannot succeed. The current approach to sentencing perhaps encourages “selective” focus on aspects of a sentence’s composition rather than a robust focus on the end sentence. Put another way, not every alleged error of sentence construction or composition will result in a successful appeal, if the end sentence is nevertheless appropriate. This is such a case.

1      Police v Oka [2025] NZDC 3689.

The offending

[7]Mr Oka was sentenced in respect of three sets of offending.

[8]First, on 4 December 2023, breaching a protection order and wilful damage.

[9]    Second, between 6 July 2024 and 23 September 2024, nine theft charges. In each case, bar one, the value of the goods taken was under $500. In the remaining instance, it was between $500-$1000.

[10]   Third, on 26 July 2024, aggravated assault, being an assault committed with intent to facilitate his flight on the commission of one of the shoplifting offences.

How the Judge dealt with the charges

[11]The Judge addressed the offending by grouping the charges into three sets.

Theft offences

[12]   First, he dealt with the theft offences. The majority of these charges included taking food from supermarkets without paying. The amounts involved ranged from

$4.90 in respect of a kumara pie, through to far more significant amounts in the hundreds of dollars relating to assorted grocery items. In one case, the value of groceries stolen totalled $530.

[13]   Two offences related to what are colloquially described as “petrol drive-offs” where, first, $154 worth of petrol was taken from Caltex without paying and, second,

$94.44 petrol from Z.

[14]   The total value of all the items stolen was $1,208.26. The offending can rightly be characterised as a spree of premeditated dishonesty offences from commercial and retail businesses.

[15]   The Judge said to Mr Oka “you have pretty much been pleasing yourself for a period of time, doing petrol drive-offs, and a whole lot of shoplifting around the eastern Waikato”. The Judge said Mr Oka “had gone well and truly off the rails, and was not prepared to behave in a civilised way, shoplifting at will”.

[16]   The Judge noted his general approach to persistent shoplifting as “every incident is worth at least one month’s imprisonment cumulative on the others.” He took nine months’ imprisonment as a starting point.

Aggravated assault

[17]   Next, the Judge considered the aggravated assault. On 26 July 2024, Mr Oka sought to leave the Pak‘nSave in Mill Street, Hamilton, with $116.37 worth of groceries he had not paid for. He was confronted by a male supermarket employee who stood in Mr Oka’s way to prevent him from leaving.

[18]   Mr Oka walked into the employee and used his body and shoulders to push him backwards. Mr Oka became more aggressive and began using his elbows, his back and eventually his hands to continually push the employee. The employee eventually lost his footing and was forced backwards. Mr Oka continued to push him for about 20 metres until he made it to the main doors. He then gave the employee a final shove before walking out of the store, getting into a vehicle and leaving.

[19]   Judge Ingram uplifted the nine-month starting point for the shoplifting by a further nine months “for the violence with the shopkeeper”, noting that his “livelihood is put at risk when this kind of behaviour occurs.”

Protection order breach

[20]   In February 2015, a protection order was issued against Mr Oka in respect of the victim of this offending. Mr Oka and the victim had been in a relationship for 17 years but have been separated for several years. They have four children together.

[21]   On 4 December 2023, Mr Oka was at the victim’s home address in Whangārei. That morning, he started an argument with the victim telling her “I don’t know why you go to the gym; you still look like mud”. A further argument began in the afternoon. As a result, Mr Oka threw his lighter, obviously with some force, through a bedroom window causing the glass to smash. The four children witnessed this family harm episode.

[22]   The victim then “reluctantly” drove Mr Oka back to his home address in Auckland. During the drive back, Mr Oka repeatedly verbally abused the victim, stating “no one is going to want you with four kids” together with other derogatory comments about her self-worth.

[23]   On arrival in Auckland, Mr Oka demanded the victim’s vape and when she refused, he put his hand on the back of her neck and continued to abuse her. The victim manoeuvred herself so that Mr Oka could not get a good grip on her neck. She managed to start the vehicle and drive away.

[24]   She experienced no physical injuries, however, she was emotionally distraught over the incident. Her victim impact statement records she is scared for her safety and her children’s safety. She was very upset.

[25]    Judge Ingram regarded this offending as entirely separate noting there should be a significant cumulative uplift because Mr Oka had a prior conviction for which he had received a prison sentence. He emphasised “as the court has repeatedly observed, it does not need to be physical violence to be serious”. The Judge concluded that “at least another 12 months’ uplift for the breach of the protection order and intentional damage would be justified.”

Total starting point and reductions

[26]   The Judge took a total starting point of two-and-a-half years. He gave a 20 per cent credit for Mr Oka’s guilty plea and a further 20 per cent (more than what was sought), for Mr Oka’s rehabilitative efforts and involvement in restorative justice. The end sentence was 18 months.

[27]   The Judge gave specific consideration as “to whether or not there should be a further reduction for totality”. He concluded that he did not consider it was appropriate because:

this is a consistent course of conduct over a long period of time by a man who has got a significant record for this kind of behaviour, and he has indeed been sentenced previously to a sentence of imprisonment for this kind of conduct. In my judgement, an end sentence of 18 months is an appropriate response to all of this.

[28]Leave to apply for home detention was declined.

Approach on appeal

[29]   Mr Oka’s appeal falls to be decided under s 250 of the Criminal Procedure Act 2011. Under that section, the Court must allow the appeal if it is satisfied that:

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[30]   A material error requiring correction will be established if the sentence is manifestly excessive or wrong in principle, or if there are exceptional circumstances.2

[31]   In a case such as this the real question is whether the end sentence was manifestly excessive. The appellate court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.3

Starting points too high?

[32]   Ms Hardy does not take issue with reductions provided by the Judge. Indeed, in respect of Mr Oka’s remorse, prospects for rehabilitation and involvement in restorative justice, credit in the vicinity of 10 per cent was sought. Nor does Ms Hardy

2      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[33].

3      Ripia v R [2011] NZCA 101 at [15]. See also Kumar v R [2015] NZCA 460 at [81].

argue that the end sentence of imprisonment, rather than home detention, was inappropriate. Her simple contention is that the starting points for each set of offending were too high, which constituted errors resulting in a manifestly excessive end sentence.

[33]   In all the circumstances, I do not need to go into Ms Hardy’s submissions in great detail. I mean no disrespect when I summarise her submissions in this way.

Theft charges

[34]   In respect of the theft charges, Ms Hardy’s submission is that about six months’ imprisonment was warranted as a starting point. However, Ms Hardy accepted that the nine months’ imprisonment might be appropriate for the theft offending if it was standalone but contends that it is too much here given the totality issues which arise. She relied on the case of Nepata v Police.4 In that case, the District Court Judge had applied a formula for uplifting for theft offending of two months’ imprisonment for each theft between $500–$1000 and two weeks’ imprisonment for every theft under

$500. Applying that formula here would result in six months’ imprisonment.

[35]   In my view, the nine months’ starting point was within an appropriate range. After all, Mr Oka engaged in a shoplifting spree. It was persistent, premeditated and continued for nearly three months. There is enormous community concern about shoplifting and its effects on small business profitability. Stern responses are required where appropriate. This is such a case. Judge Ingram’s personal approach is no more than a judicial “rule of thumb”. My job is to assess objectively whether the starting point was inappropriate, wrong in principle, or otherwise manifestly excessive. The short answer must be that it is not.

Aggravated assault

[36]   I accept that the nine-month “uplift” for the aggravated assault was stern. It was certainly at the top end of the range. What perhaps is minimised by Ms Hardy, was that this was prolonged application of physical force for over 20 metres in an

4      Nepata v Police [2024] NZHC 2309.

attempt to barge the shop employee out of the way in order to facilitate Mr Oka’s flight. It was not trivial or momentary. If it was spontaneous to begin with, Mr Oka continued with the assault. Faced with the option of stopping and leaving behind the goods he was stealing, he determinedly ignored the employee’s obvious attempts to stop him. He applied persistent force to the shop employee who would rightly have expected safety and respect. This assessment of the offending provides a proper balance; it is significant offending even if there was no specific blow landed on the shop employee.

[37]   In his victim impact report, the employee notes that he was “pushed multiple times, quite forcefully at times”. He also notes he was worried about what Mr Oka was going to do. He said that Mr Oka was “very aggressive while I was dealing with him.”

[38]   Some Judges may have applied a six-month uplift as Ms Hardy contended was appropriate. My estimation was that nine months was at least at the very top end of the range. Ms Hardy cited a number of cases which, in her view, are more serious than this offending supporting her conclusion that a starting point of no more than six months’ imprisonment should have been adopted.

[39]   For reasons I will outline later, even if the uplift had only been six months, it would make no difference to the end sentence. Therefore, I make no final decision regarding this starting point.

Breach of protection order

[40]   As to the family violence offending, I disagree that a cumulative sentence of no more than six months’ imprisonment was justified. I accept Ms Hardy’s submission that there was no specific act of physical violence in the way of slapping, hitting or punching. But this was a nasty and prolonged incident of manipulative psychological abuse which was clearly deeply upsetting and demeaning. There were repeated arguments and abuse and, in that context, he threw a cigarette lighter at a window in the victim’s Whangārei house with sufficient force to break it. This was all done in the presence of four children who witnessed the incident.

[41]   The long drive back to Auckland was characterised by further verbal/psychological abuse. And there was an act of violence when Mr Oka held the victim’s neck and only her evasive action stopped him firmly grabbing it.

[42]   It is all too easy to minimise this type of prolonged psychological abuse—in the context of an act of property violence, committed in sight of four innocent children and accompanied by a violent act at the end of the incident in Auckland albeit not at the high end of the scale.

[43]   Protection orders mean what they say. Victims are entitled to protection. It is also noteworthy, as the Judge acknowledged, that Mr Oka has two previous convictions for breaching the same protection order.

[44]   First, in November 2014 which, as the Judge noted, resulted in a six months’ imprisonment sentence, largely because Mr Oka was sentenced at the same time for five charges for driving while disqualified.

[45]   There was a second breach in March 2021 which resulted in three months’ home detention.

[46]   A third breach deserves a stern response. To do otherwise would be to make a mockery of a protection order and its purpose. Also, it should not be ignored that there was a significant incident of intentional damage associated with the breach. In all these circumstances, I do not see how the 12-month uplift in respect of both the breach of the protection order and the intentional damage offending could be said to be manifestly excessive.

[47]   I add that assessing the seriousness of a protection order breach depends very much on its own facts. Therefore, comparisons with other cases are not particularly helpful. For instance, Ms Hardy referred to Whiu v Police.5 In that case, Mr Whiu was convicted of, amongst other things, breaching a protection order and wilful damage. He had returned to his former partner’s address (the protected person) entered the property while she was sleeping, yelling outside her window and waking

5      Whiu v Police [2020] NZHC 298.

her up. There was an argument at the front door and the police were called. Mr Whiu then kicked a rubbish bin, breaking it in half, as he left the address.

[48]   There, the two-year starting point adopted by the District Court Judge, even taking into account previous convictions within the preceding five years against the same victim, was considered too high on appeal. A starting point of six months’ imprisonment was considered appropriate.

[49]   In my view, however, Mr Oka’s offending was more serious. It lasted for longer, was clearly psychologically demeaning and abusive, continued during the long trip from Whangārei to Auckland that the victim clearly did not want to undertake, and included an act of violence on the victim on arrival in Auckland. Some of the offending was witnessed by four children.

[50]   As a third offence, this offending is of a more serious and sinister nature than occurred in Whiu.

Totality

[51]   All in all, the two-and-a-half year starting point was certainly stern. And I understand Ms Hardy’s concerns particularly as they relate to the aggravated assault starting point. Ms Hardy is also right to say that the Judge did not explicitly consider totality at this stage.

[52]   But, Judge Ingram specifically directed his attention to the issue of totality after he had made the 40 per cent reductions resulting in an end sentence of 18 months. He considered whether there should be a further reduction for totality. He concluded that it would not be appropriate for all the reasons that he set out. I agree.

[53]   I should also add that Judge Ingram was at pains to say that he did not want Mr Oka “to be left with the impression that I am simply throwing the book at you, far from it”. He made clear he was endeavouring to impose a sentence that would reflect his efforts at rehabilitation and allow for that to continue. To that extent the sentencing exercise showed understanding of Mr Oka’s predicament.

Other factors

[54]   It is also important to note that the Judge did not take into account that all of Mr Oka’s theft offending and the aggravated assault took place while he was on bail for the two family violence charges. That this three-month spree of offending took place while on bail is a seriously aggravating factor which could have and perhaps ordinarily would have, attracted an uplift. I note it is a factor which must be taken into account under s 9(1)(c) of the Sentencing Act 2002, and with great respect to a very experienced Judge there is no evidence that he did so.

[55]   So, if the starting point particularly for the aggravated assault is too high, this is, as Ms Glaser succinctly submitted for the Crown, mitigated or offset by the advantageous discount for Mr Oka’s remorse and rehabilitation together with the absence of uplifts for offending while on bail.

Conclusion

[56]   In my view, while there may be some justification for Ms Hardy’s concerns regarding the overall starting point, when the sentencing process and all relevant factors are taken into account, there can be no concern with the end point of 18 months’ imprisonment.

[57]   To put things more clearly, I am inclined to think the starting point of 30 months may have been too high. Perhaps it could have been 27 months or even 24 months. But in that case, the 40 per cent reduction allowed by the Judge, when rounded, would have resulted in a 16 or 14-month sentence of imprisonment. To that, an uplift of three to four months was in my view necessary to take into account the offending while on bail which would have resulted in about an 18-month end sentence or very close to it. That is exactly what Judge Ingram imposed.

[58]   In all the circumstances, this appeal cannot succeed. It is an object lesson as to why the primary focus in a sentence appeal must be on whether the end sentence is manifestly excessive. I conclude that in this case (if I can put it this way) it is manifestly clear that the end sentence is not excessive.

[59]The appeal therefore must be and is dismissed.

Becroft J