Peita v Police

[2025] NZHC 1355

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2025-404-000080

[2025] NZHC 1355

BETWEEN

RATAHI CHOPPER PEITA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	26 May 2025
Counsel:	PJM Osborne for Appellant MW Büdler for Respondent
Judgment:	28 May 2025

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 28 May 2025 at 10 am.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Auckland. PJM Osborne, Auckland.

PEITA v POLICE [2025] NZHC 1355 [28 May 2025]

The appeal

[1]                 This sentence appeal raises a narrow issue concerning uplifts and totality. Ratahi Peita received a sentence of two years and four months’ imprisonment for:

(a)Injuring with intent to injure;1

(b)Burglary;2

(c)       Theft (over $1,000) (x 2);3

(d)Behaves threateningly;4

(e)Wilful damage;5 and

(f)Breaching release conditions (x 3).6

[2]                 Judge G A Fraser adopted a global starting point of 55 months’ imprisonment,7 which he adjusted to 48 months in recognition of totality. The Judge then discounted that figure for Mr Peita’s guilty pleas and personal circumstances but uplifted the sentence because of Mr Peita’s extensive criminal history, and the fact of offending while on bail and parole.8

[3]                 Mr Peita contends the global starting point should have been not more than 50 months, less 12 months for totality. The difference concerns the dishonesty offending. Whereas the Judge added a total of 22 months for it (10 months for the burglary, and 12 months for the thefts), Mr Peita contends the uplift should have been

1      Crimes Act 1961, s 189(2); maximum penalty five years’ imprisonment.

2      Crimes Act, s 231(1)(a); maximum penalty 10 years’ imprisonment.

3      Crimes Act, ss 219 and 223(b); maximum penalty seven years’ imprisonment.

4      Summary Offences Act 1981, s 21(1)(a); maximum penalty three months’ imprisonment or fine not exceeding $2,000.

5      Summary Offences Act, s 11(1)(a); maximum penalty three months’ imprisonment or fine not exceeding $2,000.

6      Sentencing Act 2002, s 96(1); maximum penalty one year imprisonment or fine not exceeding

$2,000.

7      There is a minor mathematical error; the global starting point ought to have been 56 months. But as will be apparent, and especially given the adjustment for totality, nothing turns on this.

8      Police v Peita [2025] NZDC 1200.

not more than 17 months (8 months for the burglary, and 9 months for the thefts). This approach, with the balance of the Judge’s methodology, would have left open the possibility of leave for home detention. Therein lies the gist of the appeal.

[4]                 The appeal must be allowed if there is an error in the sentence and a different sentence should be imposed.9 The ultimate concern is whether the sentence is manifestly excessive, not how it was reached.10

Background

[5]Most of the facts are captured by the Judge’s sentencing remarks:

[4]     ... You and the victim were in an intimate relationship for an unknown period. You were released from prison on 16 August, three days before this incident. The victim had allowed you to reside at her home address with her to assist you with your rehabilitation. On the evening of Monday 19 August, she arrived home and believed you to be under the influence of methamphetamine. She asked you to leave which you neglected to do. She left her home address and returned approximately three hours later to find that you had remained at her home. An altercation ensued where the victim locked herself in the bathroom to ensure her safety and call the police. You attempted to enter the bathroom to confront her, breaking the door handle and striking the door until it was destroyed. The victim was on her phone to the police, she jumped out of the bathroom window from the elevated dwelling, an approximate three metre height, out of fear for her own safety. She fell over jumping out the bathroom window and struck an awning during her escape which created a loud bang that alerted you. You exited the address and confronted her whilst she was laying on the ground with injured knees from the fall. You punched her with a closed fist in the head area, then dragged her face down limp from around the corner of the house. Five minutes later you can be seen on CCTV dragging her back around the corner to her original location. You let go of her and she fell back on the ground. You leaned over her for approximately 40 seconds until she sat upright. You positioned yourself to the rear of her and held her head upright by her hair with your left hand. You then struck her in the rear right and side of her head with a closed fist. This attack immediately rendered her unconscious. You fled from the address at about the same time as the police arrived. You were apprehended on the evening of 20 August 2024. You had sustained an injury during your attempt to decamp and subsequent arrest resulting in your admission to hospital. Whilst in hospital you were being guarded by a female police officer. Having been told by that officer that you would have to wait for assistance from medical staff to relieve yourself, you said to her: “I’m going to fucking kill you.” Then you continued to stare and shout at her.

[5]     Victim number 1, as opposed to the police officer suffered extensive swelling, bruising, abrasions to her left eye, face area right-hand side of her

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

10     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

face. She had bruising and redness to her right forearm, left shoulder, front and rear of her throat and neck area. She suffered from head injuries which the summary of facts at that time said was still being medically examined.

[6]     I am not going to go through the summary of facts in relation to the shoplifting and the theft charge.

[7]     The burglary charge records 11.09 am on Tuesday 25 June, you were at the Dark Horse Sports Bar in Parkway Drive in Rosedale. You approached the TAB section which consists of an alcove surrounded by a counter with cash register separate to the bar. The area has restricted access only to be entered and operated by staff. You ducked down to conceal yourself under the counter and entered the staff only area to access the cash register. With your left hand you opened the cash register, you removed all the $20 and $10 notes from inside the register. You then left the TAB section of the bar concealing the money and the key to the cash register in your jacket pocket. Reparation in relation to that charge of $1,600 is sought.

[6]    This leaves the shoplifting and theft.   On 7 June 2024, Mr Peita  entered   Evo Cycles in Westgate, Auckland. He took several items of clothing and left (without paying). The property was worth $2,199.61. On 9 July 2024, Mr Peita entered Sunnybrae Takeaways, in Sunnyvale, Auckland. He waited for approximately five minutes to see if any staff were present. Mr Peita then reached over the counter and took a laptop worth $1,874. It held personal information about which the victim remains concerned; the laptop has not been returned.

The case for Mr Peita

[7]On behalf of Mr Peita, Mr Osborne contends:

13.… the overall uplift of 22 months for the charges of burglary and   theft x 2 was manifestly excessive for the following reasons.

Burglary charge

14.The burglary of the Dark Horse Sports Bar was at the lowest end of the scale for offending of this type:

a.       It was an opportunistic offence that did not involve any of the aggravating factors identified in Senior v Police. There was minimal danger of confrontation with staff, no behaviour which would make a victim feel targeted, no wanton destruction of property, no theft of high value or sentimental items and no sophisticated planning.

b.       Mr Peita offered reparation in full for this offence.

c.       It is submitted that the sole aggravating feature of the burglary charge was the fact that the defendant was subject to release conditions at the time.

d.       An uplift of 8 months’ imprisonment would have been more appropriate.

Theft Charges

15.The theft charges in relation to Evo Cycles and Sunnybrae Takeaways displayed a similar lack of aggravating features to the burglary, although it is accepted that the theft of the laptop carried significant personal consequences for the victim.

16.The overall value of the items taken in the thefts was $3,993.61 placing it above the value of the items in Asres v Police and below the value of the items in Henry v Police. These cases involved lesser starting points of 9 months’ and 8 months’ imprisonment respectively that were upheld on appeal.

17.Reparation was not sought on behalf of Evo Cycles, presumably as the company was insured for the loss.

18.The offending had all the hallmarks of Mr Peita’s disability, in particular impaired consequential thinking and lack of impulse control and also of methamphetamine addiction.

19.It is submitted that an uplift of 9 months would have been appropriate to reflect the theft charges.

20.The above approach would have resulted in an uplift of 17 months imprisonment to reflect the charges of burglary and theft x 2.  This is  5 months less than what was imposed in the District Court and therefore amounts to an error in the sentence imposed.

Totality

21.Although the practical effect is the same, an alternative approach would have been to allow a greater reduction to the global starting point of  55 months to reflect the totality of the offending. The appellant submits that the global starting point of 48 months’ imprisonment was wholly out of proportion to the gravity of the offending.

22.It is submitted that, should the Court consider that the uplifts applied were necessary to reflect the seriousness of each offence, the reduction for totality of 7 months that was applied was manifestly inadequate and that the appropriate reduction ought to have been 12 months.

Analysis

[8]    I make five points.

[9]    First,  the  cases  cited  by  Mr  Osborne  do  not  imply  error.   Neither   Asres v Police11 nor Henry v Police12 posits a ceiling in relation to offending of this nature, nor identifies a range beyond which the Judge went.

[10]   Second, the cases of Tabrum v Police13 and  Torbarina  v Police,14 cited by  Mr Büdler on behalf of the respondent, are commensurate with the Judge’s starting points in relation to the dishonesty offending. In Tabrum, Gordon J adopted an 11-month starting point for the burglary of a shop absent any violence, or threat of violence, to either property or staff. In Torbarina, a starting point of 18 months’ imprisonment was upheld in relation to three thefts. The property stolen had a similar value to that taken by Mr Peita.

[11]   Third, the laptop that Mr Peita took, contained, as observed, information personal to the victim, thereby aggravating the gravity of the offending.

[12]   Fourth, the global starting point could have been legitimately reached in other ways; for example, by a modest increase to the starting point for the family violence offending, which was serious. This point dovetails that made earlier; the concern in this context is primarily outcome, not process.

[13]   Fifth, the totality adjustment of seven months was meaningful. The deduction acknowledged the need for some amelioration of the sentence, while respecting the seriousness of the offending overall. Indeed, the Judge’s approach constitutes a useful illustration of the totality principle in action.

[14]No issue of (leave for) home detention therefore arises.

11     Asres v Police [2019] NZHC 2760.

12     Henry v Police [2016] NZHC 800.

13     Tabrum v Police [2025] NZHC 443.

14     Torbarina v Police [2014] NZHC 3221.

Result

[15]   The appeal is dismissed.

……………………………..

Downs J