Perez v Police
[2025] NZHC 2273
•12 August 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2025-409-148
[2025] NZHC 2273
BETWEEN CRISTOPHER PEREZ
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 7 August 2025 Appearances:
H R Skelton for Appellant G L Collett for Respondent
Judgment:
12 August 2025
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 12 August 2025 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
PEREZ v NEW ZEALAND POLICE [2025] NZHC 2273 [12 August 2025]
Introduction
[1] The appellant, Cristopher Perez, pleaded guilty to, and was convicted of, several dishonesty offences: one of burglary,1 one charge of attempted burglary,2 one of theft (under $500)3 and two representative charges of dishonestly using a document.4 On 23 May 2025, he was sentenced by Judge Couch to 27 months’ imprisonment and ordered to pay reparation of $12,314.5
[2] Mr Perez appeals that sentence on the grounds the Judge erred in not applying deductions for the appellant’s gambling addiction and the increased impact of imprisonment as a foreign national, and by ordering reparation of $12,314.
Facts
[3] The first representative charge of dishonestly using a document arose from events on 12 December 2024. In the afternoon, keys and a wallet were stolen from a vehicle parked at a mall. Within a few minutes of the theft, Mr Perez was using the credit card from the stolen wallet. He made seven purchases of goods totalling $702.
[4] The burglary charge arises from events overnight between 14 and 15 December, where Mr Perez went to a Christchurch residential property, climbed over a fence into another residential property, and went into the garage where he stole keys to the garage and numerous other items valued at more than $12,000, including an offroad bicycle and an electric scooter.
[5] The second charge of dishonestly using a document arises from the morning of 16 December, where a cell phone and wallet were stolen from a vehicle parked on a suburban street. An hour later, Mr Perez was using the bank card from the wallet to purchase goods valued at $100, and subsequently made two further purchases of petrol each of $100.
1 Crimes Act 1961, s 231(1)(a); maximum penalty 10 years’ imprisonment.
2 Section 231(1)(a) and 72; maximum penalty five years’ imprisonment.
3 Sections 219 and 223(d); maximum penalty three months’ imprisonment.
4 Section 228(1)(b); maximum penalty seven years’ imprisonment.
5 Police v Perez [2025] NZDC 11811.
[6]That same day, he stole $50 worth of petrol, giving rise to the theft charge.
[7] The attempted burglary charge arises out of events which occurred in the early hours of the morning of 21 December. Mr Perez went back to the property where he had previously stolen property and keys from the garage. While in the backyard, he was confronted by the occupants who held him there until police arrived. He had the keys to the garage with him.
District Court decision
[8] The Judge adopted a starting point of 18 months for the lead offence of burglary, 10 months for the attempted burglary, noting it was highly premeditated as he returned to the same house with the keys he had previously stolen, and a starting point of 10 months for the various charges of dishonestly using a document. However, applying the totality principle, he reduced the combined starting point of 38 months to 30 months’ imprisonment. The Judge then provided an uplift of five per cent for the offending occurring while the appellant was subject to sentence, and a further 10 per cent for his previous convictions. Deductions of 20 per cent were applied for the appellant’s guilty pleas and five per cent for his participation in restorative justice. An end sentence of 27 months’ imprisonment was imposed, alongside orders for reparation totalling $12,314.
Principles on appeal
[9] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.6 As the Court of Appeal observed in Tutakangahau v R, with reference to the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.7 It is appropriate for this Court to intervene and substitute its own views only if the sentence
6 Criminal Procedure Act 2011, ss 250(2) and 250(3).
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.8
Submissions
Appellant’s submissions
[10] Ms Skelton, for the appellant, submits the Judge erred in not applying deductions for the appellant’s personal background factors and for the increased impact of imprisonment on him as a foreign national. She submits there was a causative contribution between the appellant’s gambling addiction and the current offending warranting a 10 per cent deduction, and the appellant’s disconnection from his family and culture while in custody warrant a further five per cent deduction.
[11] Further, she submits the Judge erred by ordering reparations of $12,314 as, on the estimate provided to the Judge at sentencing of weekly reparations of $30, the total reparations would take more than five years to pay, resulting in undue hardship to the appellant. She seeks a reduction in reparations.
Respondent’s submissions
[12] Ms Collett, for the respondent, submits the Judge did not err by not providing deductions for the appellant’s personal background (including gambling issues) or the impact of imprisonment as a foreign national. He has lived in the country for nearly 20 years, speaks English well and has already served a term of imprisonment in this country. He also has the support of his mother who lives locally.
[13] Ms Collett acknowledges a reparation report was not available at sentencing, and so there is insufficient information around the weekly instalment payments that the appellant can afford. However, it was appropriate to make a reparation order, noting the appellant himself, in the restorative justice conference said he would like to repay the victims.
8 Ripia v R [2011] NZCA 101 at [15].
[14] Finally, Ms Collett submits the starting points for the burglary charges were on the lower end of the available range, and that combined with the totality adjustment, meant that even if further deductions could have been awarded, the end sentence was not manifestly excessive.
Analysis
Starting points and totality
[15] While the appellant does not challenge the starting points on appeal, the respondent submits the starting points adopted could have been greater. As that is relevant to whether the end sentence is manifestly excessive, I consider this aspect of the Judge’s decision as well.
[16] While there is no tariff case for burglary, Ms Collett relies on the Court of Appeal’s decision in Arahanga v R where it was noted that residential burglaries at the relatively minor end of the scale tend to attract a starting point between 18 months and two and a half years’ imprisonment.9 Here however, the burglary was of a garage, not a dwelling house itself. As Ms Skelton pointed out, in R v Columbus, the starting point for burglary of a garage in daytime where lower value items were taken, was adjusted down to 12 months on appeal.10 This indicates the 18 month starting point was not at the lower end of the available range.
[17] I accept in this case there are more aggravating factors than in R v Columbus, as the burglary occurred at night and there was a much higher value of items stolen ($12,000). Furthermore, in respect of the attempted burglary, there was the additional aggravating factor of a confrontation with the victim. Having regard to these aggravating factors, I am satisfied the starting points adopted were within the available range, but not necessarily at the lower end given this was not a burglary of a residential dwelling.
9 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].
10 R v Columbus [2008] NZCA 192 at [16].
Background factors
[18] Ms Skelton submits there is a causative contribution between Mr Perez’s gambling addiction and the offending and this should have been recognised with a 10 per cent deduction.
[19] Addictions, including gambling addictions, can have a causative contribution to offending. That said, there has been a hesitancy to treat a “self-induced gambling addiction” as a mitigating factor in sentencing.11 Even following the decisions in Zhang v R12 and Berkland v R,13 there has been no evidence the Courts have recognised a gambling addiction, on its own, as a mitigating factor at sentence. In Hall v Police, a combination of a drug and gambling addiction was held to have a causal nexus to the offending but did not necessarily justify a deduction in that case.14
[20] Here, I accept there is evidence of a gambling addiction, particularly in light of the score returned on a departmental screening test with the pre-sentence report writer, noting Mr Perez scored a total of 21, where a score of eight or more is classed as a problem gambler.
[21] However, as Ms Collett pointed out, there was material before the Court which contradicted the suggestion the offending was to fund a gambling addiction. In particular, Mr Perez admitted he intended to keep the bike and scooter for himself and the majority of the dishonesty offending was to purchase goods and petrol. The evidence to demonstrate that the offending was used to fund online gambling is not at all clear. In all the circumstances, the evidence to support a causal connection is a matter of inference at best. While the Judge could have adopted a deduction for this factor, the limited evidence to support a causal connection meant the Judge did not err in declining to give one.
11 Campbell v Police [2013] NZHC 838 at [39] citing Fitzmaurice v Police [2013] NZHC 494 at [25]; and R v Brooking CA419/04 7 March 2005 at [11].
12 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
13 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
14 Hall v Police [2024] NZHC 3811 at [39].
Foreign national
[22] Ms Skelton relies on Chai v R15 and Zhang v R16 to submit a five per cent deduction is warranted to reflect the disproportionately severe effect of imprisonment on Mr Perez as a foreign national, particularly the lack of family support he experienced in the first six months of his sentence while his mother was overseas, but also his ongoing dislocation from family and culture.
[23] In Chai v R, the Court of Appeal upheld a five per cent deduction to reflect that isolation and denial of family support makes prison harder than usual to bear for foreign nationals. In Chai, the appellant had travelled to New Zealand to deal drugs. The appellant was in New Zealand for only six months prior to the offending being uncovered, had no family in New Zealand, had not resided in the country previously and was unlikely to see his parents again because of their age.
[24] In Zhang, this factor was discussed in relation to Mr Yip. Mr Yip was part of a criminal organisation based in Hong Kong and travelled to New Zealand to be the “person on the ground” passing instructions on. Mr Yip had limited English, was young and his familial support was in Hong Kong.
[25] Here, the appellant migrated to New Zealand from the Philippines in 2006 when he was approximately 20. He is established in New Zealand and can speak English reasonably well. There is no suggestion that the appellant had any difficulty adjusting to the New Zealand prison environment, and he has previously received sentences of imprisonment in New Zealand. While the appellant’s family lives in the Philippines, his mother lives in Christchurch and she remains supportive of him.
[26] I do not consider these circumstances suggest a sentence of imprisonment would be harder than usual for the appellant to bear. The Judge did not err in providing no deduction to recognise the appellant was a foreign national.
15 Chai v R [2020] NZCA 202 at [33]–[34].
16 Zhang v R, above n 12, at [163] and [301].
Was the end sentence manifestly excessive?
[27] In all the circumstances, the Judge did not err in declining to make the further deductions sought and the end sentence was not manifestly excessive.
Reparation
[28] A sentence of reparation may be imposed even where it is uncertain, in the case of an offender also sentenced to imprisonment, that he or she will have the means to meet the order upon release.17 However, the amount to be repaid by way of reparation should be realistic given the financial resources of the offender.18 A sentencing judge is required to have a “reasonable measure of confidence” that the payment of reparation is able to be made.19
[29] Payment by instalments is envisaged under ss 35 and 36 of the Sentencing Act 2002. However, the authority of the law is not necessarily maintained by making people bonded debtors for very long periods.20 Nor do relatively small payments over a long period necessarily provide any significant benefit to victims.21
[30] Section 86(2) of the Summary Proceedings Act 1957 permits time to pay arrangements to extend for up to five years, which suggests the payment of instalments for periods exceeding five years will generally be inappropriate.22 Both counsel accept that undue hardship will generally be found where an order for reparation cannot be met within five years.
[31] Ms Skelton submits there is no realistic prospect of $12,314 being paid within a reasonable time. Mr Perez is legally aided. Prior to his remand in custody, he was on the unemployment benefit. At sentencing, while no reparation report was provided, it was submitted he could pay reparation instalments at $30 per week, meaning it would take 410 weeks or eight years to pay the full reparation order.
17 R v Creek CA199/06, 17 August 2006 at [12].
18 R v Bailey CA306/03, 10 May 2004 at [25].
19 R v Creek, above n 17, at [12]; and R v Pender [2007] NZCA 465 at [15].
20 Ruka v Department of Social Welfare [1997] 1 NZLR 154 (CA).
21 Mathew Downs (ed) Adams on Criminal Law – Sentencing (online ed, Thomson Reuters) at [SA35.01].
22 At [SA35.01] citing Guinness v Police [2015] NZHC 883 at [16]; Ebdale v Police [2015] NZHC 3154 at [6]; and Hilton v Police [2018] NZHC 1757 at [16].
[32] At the hearing of the appeal Ms Skelton provided a fines summary for Mr Perez. It showed that, with the current order alongside previous reparation orders imposed, Mr Perez currently owes $17,828.22 in reparations, and has made over
$2,500 in payments towards reparations. However, I was not provided with any information about Mr Perez’s ability to pay reparations beyond the assertion, through counsel, that he is unemployed and can only afford to pay $30 a week. This is an unsatisfactory position to be in, particularly when Mr Perez, at the restorative justice meeting, said he was willing to repay the victim.
[33] However, looking realistically at Mr Perez’s history, his difficulty in obtaining employment, his current incarceration and the totality of reparations he owes, I accept it is not reasonable to expect he would be able to pay the full sum ordered in reparation. Instead, I order that he pay $7,800 in reparations, which is the total of $30 paid weekly over five years.
Result
[34]The appeal is allowed in part. The order for reparations is reduced from
$12,314 to $7,800. In all other respects the sentence is confirmed.
Solicitors:
Crown Solicitor, Christchurch
Public Defence Service, Christchurch
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