Pritchard v The King
[2025] NZHC 1698
•25 April 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2025-404-000075
[2025] NZHC 1698
BETWEEN EMMANUEL PRITCHARD
Appellant
AND
THE KING
Respondent
Hearing: 23 June 2025 Appearances:
A W Slipper for Appellant
M W Nathan and R G Hayden for Respondent
Judgment:
25 April 2025
JUDGMENT OF ANDREW
This judgment was delivered by Justice Andrew on 25 June 2025 at 2.00 pm
pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar
Date: ………………………………
PRITCHARD v R [2025] NZHC 1698 [25 April 2025]
Introduction
[1] This is an appeal against sentence. It is a case of home invasion; weapons were involved and one of the victims was only three years old.
[2] In the District Court, the appellant, Emmanuel Pritchard, and his two co-offenders, pleaded guilty1 to one charge of aggravated burglary,2 two charges of assault with a weapon,3 and one charge of assault on a child.4 Mr Pritchard was sentenced by Judge S J Lance to 36 months’ imprisonment.5
[3]The appeal is advanced on two grounds. It is said that the Judge erred:
(a)by adopting a starting point that was too high given Mr Pritchard’s lesser involvement in the offending; and
(b)by not allowing a greater amount of reductions for Mr Pritchard’s personal mitigating circumstances.
[4] Mr Slipper, for Mr Pritchard, contends that an end sentence of “24.15 months’ imprisonment” should have been imposed – and when one month is deducted from that total to reflect the time Mr Pritchard spent on restrictive monitoring, the end sentence would have come below the threshold for a community-based sentence to be considered.
[5] The Crown opposes the appeal. I must allow the appeal if satisfied that for any reason there was an error in the sentence imposed on Mr Pritchard, and a different sentence should be imposed.6
1 Mr Pritchard pleaded guilty following a sentencing indication given by Judge Gibson on 10 May 2024. Mr Slipper, for Mr Pritchard says that indication was not accepted by Mr Pritchard.
2 Crimes Act 1961, ss 232(1)(a) and 66(2): maximum penalty of 14 years’ imprisonment.
3 Sections 202C(1)(a) and 66(2): maximum penalty of five years’ imprisonment.
4 Sections 194(a) and 66(2): maximum penalty of two years’ imprisonment.
5 R v Pritchard [2025] NZDC 763.
6 Criminal Procedure Act 2011, s 250. See Palmer v R [2016] NZCA 541 at [17] and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].
The offending
[6] Mr Pritchard was convicted along with two co-offenders: Messrs Vui and Sau. The following summary of their offending, with a focus on Mr Pritchard’s offending, is drawn from the agreed summary of facts.
[7] The victims of the offending are a couple (who I will refer to as RM and AT) and their then three-year-old child (RI), who were residing in emergency accommodation at an address in Epsom. At about 11.35 pm on 10 January 2024, the victims were at home, in bed. AT was awake with RI, while RM slept next to them.
[8] The offenders arrived at the address and parked their vehicle on the footpath, before approaching the victims’ unit. Prior to doing so, they pulled black woollen masks over their faces. Mr Vui was armed with a wooden kilikiti bat (a Samoan cricket bat of approximately 1.5 m in length, with a triangular cross-section). Mr Sau was armed with a machete. Mr Pritchard was not armed.
[9] One of the offenders knocked on the victims’ door, waking RM. AT answered the door; opening it with the security chain attached. Seeing the offenders and noting that they were armed, AT slammed the door shut and locked it. The offenders started smashing the window in the door using their weapons. Once the glass in the door was smashed, the offenders entered the room, one of them punching AT in the face, causing him to fall onto the bed.
[10] RM lay on top of AT and RI on the bed; largely protecting them from the ensuing assault. The family was assaulted with the bat for approximately 20–25 seconds. The force of the blows was sufficient to break the bat into two.
[11] The offenders suddenly stopped their assault, retrieved their weapons, and left the room. They fled the scene in their vehicle, which was pursued and stopped by a Police officer who had been in the area.
[12] RM suffered extensive bruising to her arms, legs, and torso, in addition to cuts on her elbow and left knee. RI suffered swelling on his left leg, as well as a
three-centimetre laceration. All three victims were understandably psychologically traumatised.
Decision under appeal
[13] The Judge held that the starting point for each of the three offenders should be the same. He stated:
[15] This offending involved a joint enterprise. All the defendants were acting together as a group either to encourage or assist each other and obviously in numbers to intimidate, overwhelm and frighten the victims [and] the culpability is largely shared between you despite there being some differences for example, as to who was holding a weapon. In the end it is accepted that all of you entered the room, all of you were present when the attack occurred. None of you attempted to stop anyone else from doing what they were doing, breaking into a private space and assaulting the victims with weapons.
[14] The Judge took aggravated burglary as the lead charge and set the starting point by adopting a global approach (i.e. imposing a global sentence considering the aggravating features inherent in the other charges). The Crown had submitted a seven-and-a-half year starting point was appropriate, whereas Mr Pritchard’s counsel advocated for a four-and-a-half year starting point.
[15] Taking account of the aggravating factors, Judge Lance noted the premeditation, the violence and use of weapons, the use of force, the targeting of the premises, and the vulnerability of the victims. Applying R v Mako,7 the Judge concluded that, as the offending was of short duration, did not involve the taking of property or the making of threats, a starting point of seven years’ imprisonment was appropriate.
[16] From that starting point, Judge Lance deducted discounts totalling 55 per cent for Mr Pritchard’s personal mitigating factors:
(a)20 per cent discount for guilty plea;
(b)15 per cent discount for youth and previous good character;8
7 R v Mako [2000] 2 NZLR 170 (CA).
8 Mr Pritchard was aged 22 and had a previous conviction for driving while suspended or revoked.
(c)20 per cent global discount for the overlapping factors of genuine remorse, rehabilitative efforts, and background factors raised in Mr Pritchard’s s 27 report; and
(d)one month discount for Mr Pritchard’s restrictive bail conditions.
[17] In relation to the end sentence, Judge Lance took into account the different roles played by the three offenders. He held:
[38] The difference in what will be the end sentence, not only reflects the matters referred to above as to ‘personal factors’ but also, if I stand back and look at the offending, although a joint enterprise, Mr Sau was, as he admits, the organiser. He held the machete. He stood to receive $1,000.00. Mr Vui, although the youngest, was the one holding the other weapon. Mr Pritchard, although slightly older, was in the premises for the shortest period of time.
[18] Mr Pritchard was sentenced to 36 months’ imprisonment. Mr Vui was also sentenced to 36 months’ imprisonment. Mr Sau was sentenced to 46 months’ imprisonment, which he appealed unsuccessfully.9
Analysis and decision
[19] Mr Slipper submits that Judge Lance erred in not adopting a lower starting point for Mr Pritchard to reflect his “lower culpability in the offending”. He also submits that the Judge was in error in not addressing the issue of potential disparity at step one (i.e. setting the starting point). Mr Slipper referred to the Judge’s findings that Mr Pritchard was not armed, did not anticipate the extent of the violence, and was only involved opportunistically.10
[20] Mr Slipper drew comparisons with R v Stade, in which Gendall J addressed disparity, noting:11
A range of cases cited to me by the Crown establish that a discount of one to two years from the lead offender’s starting point will be justified on the basis of such diminished involvement.
9 Sau v R [2025] NZHC 1495.
10 Mr Slipper acknowledged that Judge Lance was sceptical of the suggestion that Mr Pritchard was not being financially compensated or aware that weapons were involved.
11 R v Stade [2015] NZHC 2611.
[21] He also referred to Hay v R, in which an offender who played a lesser role in the offending had their starting point reduced by nine months.12
[22] In light of Stade and Hay, Mr Slipper submits Mr Pritchard’s involvement in the offending means he should have been granted a reduction in starting point of 15 months, which would have brought his starting point to 69 months’ imprisonment.
[23] I do not accept Mr Slipper’s submissions on the issue of the starting point. I find that there was no error in the starting point adopted by the Judge. It was open to the Judge to adopt the same starting point for all three offenders. As his Honour concluded, this was a joint, armed home invasion, with all three offenders entering, all three offenders masked, and with no-one dissenting from the common plan. There can be no doubt that Mr Pritchard was aware of the presence of weapons and after Mr Vui smashed the window, he followed him into the house.
[24] I acknowledge that considerations of parity are important when considering co-defendants.13 However, as the Crown submits, and in accordance with the tariff case R v Mako,14 it was open to the Judge to adopt the same starting point for all offenders. There is no doubt that Mr Pritchard was aware of the presence of weapons and/or was anticipating violence.
[25] In any event, Judge Lance did have due regard to the differences between Mr Pritchard’s role and that of his co-offenders at the second stage of the sentencing process. That is apparent from the quote above at [17]. I find that the differences between Mr Pritchard and his co-offenders’ involvement do not demonstrate such a gross disparity to warrant judicial intervention.15 In terms of the end sentence, which of course is the critical matter to focus on, the discounts that the Judge provided
12 Hay v R [2015] NZCA 329 at [60].
13 Berkland v R [2020] NZCA 150; this decision was altered by the Supreme Court. However, the analysis of the principles of parity was not criticised. See Berkland v R [2022] NZSC 143 at fn 83. See also Moses v R [2024] NZCA 121 at [40], citing R v Rameka [1973] 2 NZLR 592 (CA) at 593–594; R v Lawson [1982] 2 NZLR 219 (CA) at 222–223; and Macfarlane v R [2012] NZCA 317 at [24]. Also see R v Kohey CA345/02, 11 March 2003.
14 R v Mako, above n 7.
15 Moses v R, above n 13, at [40], citing R v Rameka, above n 13, at 593–594; R v Lawson, above n 13, at 222–223; and Macfarlane v R, above n 13, at [24].
reflected a proportionate assessment of Mr Pritchard’s role as compared to his co-offenders without detracting from his culpability as a full participant.
[26] I also reject the second ground of appeal, namely that the global reduction of 20 per cent for Mr Pritchard’s remorse, rehabilitation and background factors was insufficient.
[27] I accept that Mr Pritchard expressed genuine remorse, had saved money for a reparation payment, drafted a letter of apology and had expressed interest in attending a restorative justice conference with the victims. I also acknowledge that he has completed some rehabilitative programmes while on bail.
[28] However, I find that the 20 per cent global reduction appropriately accounted for all of these factors. Having regard to the Court of Appeal decision in Hore v R,16 (10 per cent for remorse and reparation) and Chen v R,17 (10 per cent discount for a combination of remorse and rehabilitation), the reduction was, in my view, within range. No error has been established.
[29]For all these reasons I conclude that the appeal should be dismissed.
Result
[30]The appeal is dismissed.
Andrew J
16 Hore v R [2024] NZCA 216.
17 Chen v R [2024] NZCA 379 at [27].
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