Puhipuhi v Police
[2025] NZHC 1714
•26 June 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2025-404-114
[2025] NZHC 1714
ROIMATA PUHIPUHI v
NEW ZEALAND POLICE
Hearing: 16 June 2025 Appearances:
B Castelino for the Appellant U B Keller for the Respondent
Judgment:
26 June 2025
JUDGMENT OF POWELL J
[Appeal against sentence]
This judgment was delivered by me on 26 June 2025 at 3.00 pm.
Registrar/Deputy Registrar
……………………………..
ROIMATA PUHIPUHI v NEW ZEALAND POLICE [2025] NZHC 1714 [26 June 2025]
[1] The appellant, Roimata Puhipuhi, has appealed a sentence of 18 months’ imprisonment imposed by Judge G T Winter after she pleaded guilty to five charges of shoplifting goods to the total value of $2803.03 from supermarkets in South Auckland.1
[2]In brief:
(a)On 26 May 2024, Ms Puhipuhi stole $900 worth of items from the Countdown on Averill Street in Papakura (theft ($500–$1,000)).2
(b)On 15 June 2024, Ms Puhipuhi stole items to the value of $1,064 from Countdown Roselands (theft (over $1,000)).3
(c)On 24 June 2024, Ms Puhipuhi stole items to the value of $140 from Countdown Manukau (theft (under $500)).4
(d)On 8 July 2024, Ms Puhipuhi stole items to the value of $400 from the Countdown on Averill Street in Papakura (theft (under $500)).5
(e)On 25 September 2024, Ms Puhipuhi stole items valued at $299.03 from Countdown Roselands (theft (under $500)).6
[3] In each case Ms Puhipuhi adopted a broadly similar modus operandi; after filling a shopping trolley, she simply walked through the self-service area without paying. It is noted that the second theft from the Averill Street Countdown was undertaken after she had been trespassed from the premises. In explanation, Ms Puhipuhi said she stole food because she was hungry and had no money.
[4] The Court must allow a sentence appeal if it is satisfied that, for any reason, there is an error in the sentence and that a different sentence should have been
1 New Zealand Police v Puhipuhi [2025] NZDC 2095 [Judgment under appeal].
2 Crimes Act 1961, ss 219 and 223(c). Maximum penalty; one year imprisonment.
3 Sections 219 and 223(b). Maximum penalty; seven years’ imprisonment.
4 Sections 219 and 223(d). Maximum penalty; three months’ imprisonment.
5 Sections 219 and 223(d). Maximum penalty; three months’ imprisonment.
6 Sections 219 and 223(d). Maximum penalty; three months’ imprisonment.
imposed.7 The Court will intervene where the sentence is manifestly excessive,8 but will not engage in “tinkering”.9 The focus is on whether the sentence is within the appropriate range, rather than the process by which the sentence was reached.10
District Court Decision
[5] After reviewing Ms Puhipuhi’s PAC report, her history of similar offending and the previous sentences received, Judge Winter concluded that the offending was “major shoplifting” which possessed “a degree of premeditation”, and was not carried out “solely to sustain [herself] or others” but rather was:11
organised shoplifting where [she] did get some items for [her] own good health but largely items that [she] could quickly sell to make money.
[6] In reliance on R v Varjan12 and Pyper v Police13 and noting “that the principles at play are to denounce and deter [Ms Puhipuhi’s] conduct”,14 Judge Winter arrived at an end sentence of 18 months’ imprisonment. This was calculated by taking a starting point for the theft $1,000 dollars of 14 months’ imprisonment and uplifting this by two months for the theft ($500 – $1000) offending, and further month for each of the three remaining offences. This adjusted starting point of 19 months was uplifted by a further five months for previous relevant convictions and offending while subject to release conditions, less an allowance of six months for Ms Puhipuhi’s guilty plea.15
The case for Ms Puhipuhi
[7] Ms Puhipuhi, through Mr Castelino, primarily advances her case on the basis that the sentence should have been commuted to home detention. But in the written submissions filed on her behalf, she contends in the alternative that the sentencing Judge made several material errors, including:
7 Criminal Procedure Act 2011, s 250(2).
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].
9 Maihi v R [2013] NZCA 69 at [21]; and Mack v R [2013] NZCA 183 at [16].
10 Tutakangahau v R, above n 8, at [36].
11 Judgment under appeal, above n 1, at [5].
12 R v Varjan CA97/03, 26 June 2003.
13 Pyper v Police [2021] NZHC 1448.
14 Judgment under appeal, above n 1, at [6].
15 At [11]–[12].
(a)incorrectly applying sentencing procedure guidelines, principles, and authorities and this breached her rights under the New Zealand Bill of Rights Act 1990;
(b)adopting a starting point that was manifestly excessive; and
(c)failing to consider all mitigating factors (including remorse, rehabilitation, time spent on electronically monitored bail, and care of a child).
[8] Developing these points in his oral submissions, Mr Castelino acknowledged that the PAC report had noted that there was no suitable address available for home detention. Mr Castelino explained he had not seen the PAC report until immediately prior to the sentencing and had not realised there was an issue with the suitability of an address for a community-based sentence given Ms Puhipuhi had been on electronically-monitored (EM) bail for some three months prior to sentencing.
[9] More broadly, Mr Castelino explained that he was taken by surprise that Judge Winter ruled out home detention in favour of imprisonment. He submitted Judge Winter erred in concluding the shoplifting had a commercial component and also erred in applying the principles in R v Varjan which were not relevant to shoplifting and involved commercial offending on a much greater scale. On the contrary, he emphasised that Ms Puhipuhi’s culpability should be understood in the context of poverty—stealing food for herself and to help a sibling who is a single parent.
[10] Mr Castelino submitted the same kind of approach to previous offending as seen in Faben v R should apply in this case.16 Mr Castelino submitted the Court should have regard to the fact the appellant had been sentenced to six and half months’ home detention in November 2023 after pleading guilty to a raft of shoplifting charges. He argues the current sentence is an escalation that is manifestly excessive.
16 Faben v R HC Hamilton CRI-2007-419-109, 26 September 2007 at [21].
[11] As a result, and with reference to a number of cases,17 Mr Castelino submitted that the starting point should have been no more than 12 months’ imprisonment for the theft (over $1000) charge, uplifted by two months for the theft ($500–$1000), and one further month uplift for the remaining three charges, a total of 15 months’ imprisonment. From there Mr Castelino submitted Ms Puhipuhi was entitled to an allowance of 25 per cent for her guilty plea, and a further discrete discount for the time spent on EM bail.
Discussion
[12] I begin my analysis by noting that a number of the matters Mr Castelino seeks to raise are simply not relevant to appeal against sentence. As Mr Castelino is aware the focus is on whether the sentence imposed is manifestly excessive, but the methodology does not matter.18 As a result I will not further consider the procedural matters identified by Mr Castelino.
[13] Likewise, notwithstanding that Ms Puhipuhi had been on the EM bail at an address Mr Castelino considered to be suitable for home detention, the fact remains that had not been assessed as part of the PAC report. Although potentially the sentencing Judge could have adjourned the sentencing to enable electronically monitored appendices to be prepared, that is not a matter for this appeal. The position remains that there is no suitable address for an electronically monitored sentence. As a result, in the event that the appeal was allowed, the most that this Court could do would be to grant leave to apply for home detention should a suitable address become available.
[14] With regard to the substantive matters at issue in this appeal, I reiterate the position often expressed in this Court: there is no tariff or guideline judgment of the Court of Appeal in respect of the charge of theft. Instead, the starting point is reached by considering the value of the items stolen and the offender’s previous convictions.19
17 Ralph v R [2021] NZHC 1434; Police v Perry DC Napier CRI 2010-091-1074, 13 May 2010; Sims v Police HC Christchurch CRI-2008-409-145, 11 September 2008; Faben v R, above n 16; NZP v Ghahraman [2024] NZDC 14690; Theodore v Police [2018] NZHC 2364; and Aerenga v Police [2012] NZHC 1375.
18 Tutakangahau v R, above n 8, at [36].
19 Torbarina v New Zealand Police [2014] NZHC 3221, at [9]–[10].
[15] It follows that I am not particularly assisted by the cases cited by Mr Castelino. Many of the cases merely confirm the sentences imposed for relatively dissimilar offending or were otherwise dated. I also note that simply because another Court has upheld a sentence lower than in the present case, does not mean the sentence in this case was manifestly excessive. On the contrary, it is apparent in each case there is a clear interplay between the seriousness of the offending for which an offender was being sentenced and the offender’s previous history. This makes direct comparisons between cases difficult.20 As Lang J noted in Torbarina v New Zealand Police:21
Taking the theft of the laptop computer in the present case as an example, a first offender would undoubtedly receive a community-based sentence in respect of that offence. However, a person in Mr Torbarina’s position who has appeared on more than 40 previous occasions for similar offending must expect that a custodial sentence will be the starting point.
[16] I consider that closest comparators are Torbarina and Pyper.22 In Torbarina the offender had, in the course of three separate incidents, stolen five items including a laptop totalling $3,174 in value.23 A starting point of 18 months’ imprisonment was regarded as within range for similar thefts, given in that case that the offender had 50 previous convictions over a span of 17 years.24 With regard to the starting point, Lang J observed:
[12] Mr Torbarina needs to know that a starting point of six months imprisonment is now likely to be the minimum that the Court will select in any case where he chooses to steal goods having a value of more than $1,000. Indeed, a starting point in excess of that sentence may well be appropriate from now on.
[13] Regardless of how the sentence is structured, I consider that a starting point of 18 months imprisonment on all charges was well within the range available to the Judge in respect of the present offending. Indeed, as counsel for the respondent argues, the Judge could easily have selected a starting point on each charge that was higher than six months to reflect both the gravity of the present offending and also the appalling record for similar offending that Mr Torbarina has compiled.
20 See for example Pyper v New Zealand Police [2021] NZHC 1448, at [25] and [27]–[28].
21 Torbarina v New Zealand Police, above n 19, at [10].
22 Pyper v Police, above n 13.
23 Torbarina v New Zealand Police, above n 19, at [3]–[5].
24 At [13].
[17] Pyper involved four separate thefts—one charge of theft over $1,000 and three under $500, to a total value of $2,400.30.25 Applying Torbarina and with reference to a number of other cases,26 Gendall J upheld a starting point point of 18 months’ imprisonment,27 and confirmed the end sentence of 13 and a half months’ imprisonment rather than home detention, together with reparations of $863.28 was appropriate.
[18] In this case Ms Puhipuhi’s offending was similar in seriousness to Torbarina, and slightly more serious than in Pyper. Like the offenders in those cases, Ms Puhipuhi has a lengthy criminal history, having no less than 37 convictions for shoplifting or other theft. In Ms Puhipuhi’s case, it is her distinctive recent history rather than the total number of convictions that provides the primary focus for consideration in this appeal. Specifically, Ms Puhipuhi was sentenced in 2023 for no less than 30 of those earlier offences, being offending from March 2021 through to February 2023 (2021–2023 offending).28
[19] It is clear that the 2021–2023 offending was more serious than that at issue in this appeal. It involved seven charges of theft over $1000, six charges $500–$1000 and 17 under $500.29 The end sentence however was only six and a half months’ home detention,30 ostensibly giving some support to Mr Castelino that the present sentence is manifestly excessive.
[20] Judge McIlraith’s sentencing notes however, paint a different picture, one that is directly relevant to assessing the current sentence. The starting point adopted was 32 months imprisonment after applying totality considerations.31 This was uplifted for two months to reflect that some of the offending occurred while Ms Puhipuhi was on bail while no uplift was applied for Ms Puhipuhi’s previous criminal history.32 From the adjusted starting point of 34 months’ imprisonment, Judge McIlraith gave an
25 Pyper v Police, above n 13, at [3]–[6].
26 See Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482; Ripia v R [2011] NZCA 101; and
Davies v Police [2019] NZHC 3081.
27 At [29].
28 New Zealand Police v Puhipuhi [2023] NZDC 24893.
29 At [1].
30 At [32]
31 At [12].
32 At [14]–[15].
allowance of 25 per cent from Ms Puhipuhi’s guilty plea, before allowing five per cent for her genuine remorse, noting:33
… it is clear that you are genuinely remorseful in relation to what has occurred here and you have shown quite a degree of insight to what has happened.
[21] The Judge gave a further 20 per cent allowance “for personal circumstances factoring in [Ms Puhipuhi’s] addiction, and also [her] willingness to undertake rehabilitation”.34 This resulted in an end sentence of 17 months’ imprisonment. The Crown did not oppose home detention and Judge McIlraith considered it appropriate.35 The sentence was halved to recognise that an offender serving a short term of imprisonment is released on bail after half the sentence, at which point the Judge gave Ms Puhipuhi a further two months allowance for the time spent on EM bail. The result was an end sentence of six and a half months’ home detention together with six- months’ standard and special post-detention conditions.
[22]As the sentence was passed Judge McIlraith commented:36
I trust, Ms Puhipuhi, that what [your counsel] tells me is correct and what I have read about you is correct and what you have told the report writers is correct. I really hope that you put some of the very bad things in the past behind you. You have got good people supporting you. They want to keep supporting you and that is great. So please take advantage of that, use the six and a half months on home detention please to keep focused on your rehabilitation and that is a key part of it and I am very hopeful we will not see you back here again.
[23] The home detention sentence was completed on 23 May 2024. Even before the end of the sentence, Ms Puhipuhi had committed a further theft (over $1000) for which she was convicted in September 2024 and sentenced to one year’s supervision. The first of the present charges was then committed three days after the home detention sentence was completed. The remainder of the present offending occurred while she was subject to post detention conditions, with the final theft taking place after Ms Puhipuhi had been sentenced to supervision.
33 At [18].
34 At [24].
35 At [29].
36 At [35].
[24] This history is directly relevant to both the calculation of the starting point and the appropriateness of an electronically-monitored sentence. It is clear that the sentence of home detention imposed by Judge McIlraith did not have the desired effect, nor did the subsequent sentence of supervision. Unfortunately, and contrary to Judge McIlraith’s comment, it appears that Ms Puhipuhi took entirely the wrong lesson from both of her earlier sentences in the community; that she could keep shoplifting with impunity. Evidence of her attitude is provided by the PAC report dated 29 January 2025 in which Ms Puhipuhi was recorded as saying she has been shoplifting for years, “it just is what it is”, and that rather than reaching out to community organisations for food “it was easier to just go and steal what I needed”.
[25] Those comments and the photographs of Ms Puhipuhi’s offending show she was not motivated by a simple need for food as Mr Castelino submitted, but rather I consider there was some basis for Judge Winter to conclude there was a commercial component. Supermarkets do not just sell food, and multiple blankets taken from the store are clearly visible in Ms Puhipuhi’s laden shopping trolley. Judge Winter noted these are potentially easily sold items, and the presence of them is inconsistent with Ms Puhipuhi’s stated explanation for the offending.
[26] In all of the circumstances I accept it was entirely appropriate for Judge Winter to focus on the need to denounce and deter Ms Puhipuhi’s conduct. It is clear a further sentence of home detention would have been manifestly inappropriate even if a suitable address had been formally available. The starting point and uplifts are also consistent with case law, well within range, and appropriate.
[27] I likewise find no error in the allowances given by the sentencing Judge. It is clear from the PAC report that Ms Puhipuhi has no remorse for her actions, and instead has indicated she will continue to offend in the same manner unless something changes. Similarly, in contrast to the optimism apparent from Judge McIlraith’s sentencing notes, there was no basis for any discount for rehabilitative prospects at the time Ms Puhipuhi was sentenced by Judge Winter.
[28] There was equally no basis for Ms Puhipuhi to get any allowance for a dependent child. Ms Puhipuhi has no children. It appears that at most, a child of an
ex-partner was living at the same address, but for how long and in what circumstances is unclear. There is otherwise no information before the Court about the child or the nature of their relationship with Ms Puhipuhi, if any.
[29] As Ms Keller for the Crown accepted, the one issue that emerges is whether any credit should have been given for the three months that Ms Puhipuhi spent on EM bail. The Court must consider time spent on EM bail at sentencing,37 but the amount of credit given is discretionary.38
[30] In this case, although the time spent on EM bail was not taken into account, the end sentence is not manifestly excessive. This is because by calculating the guilty plea adjustment in months rather than as a percentage, the sentencing Judge gave an allowance for Ms Puhipuhi’s guilty pleas in excess of the 25 per cent permitted.39 The six-month allowance for the guilty pleas actually equates to around 31.5 per cent of the adjusted starting point of 19 months. Had the maximum guilty plea discount of 25 per cent been applied to the adjusted starting point, a notional end sentence of 19 and a quarter months would have resulted.40
[31] In the circumstances I agree with Ms Keller that an appropriate allowance of approximately one and a quarter months for the time Ms Puhipuhi spent on EM bail can be used to make up that difference, resulting in the end sentence of 18 months’ imprisonment.
[32] This is notwithstanding that the Court has no obligation to make an allowance, which is discretionary. There was therefore no error in not making provision for the time spent on EM bail.
37 Sentencing Act 2002, s 9(2)(h).
38 O’Connor v R [2014] NZCA 328.
39 The Judge incorrectly calculated the end sentence contrary to the two-step methodology in Moses v R [2020] NZCA 296 and accordingly exceeded the limit of 25 per cent for the guilty plea as per Hessell v R [2010] NZSC 135.
40 This is the 19-month adjusted starting point reduced by 25 per cent for the guilty plea, and uplifted by five months for prior offending and offending while subject to post-detention conditions. This equals 19.25 months.
Decision
[33]The appeal is dismissed.
Powell J
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