Pye v Police

[2025] NZHC 639

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2025-404-000032

[2025] NZHC 639

BETWEEN

DANA JAY PYE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	25 March 2025
Counsel:	CHB Megala for Appellant FI Ganchi for Respondent
Judgment:	26 March 2025

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 26 March 2025 at 10 am.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Auckland.

Public Defence Service, Auckland.

PYE v POLICE [2025] NZHC 639 [26 March 2025]

The appeal

[1]                Dana Pye received a sentence of imprisonment of two years and three months for a variety of offending.1 Mr Pye appeals. He contends the District Court gave inadequate discount for mitigating features. The appeal must be allowed if there is an error in the sentence and a different one should be imposed.2

Background

[2]The sentencing remarks of Judge Bonnar KC helpfully contain the background:

[1]        Mr Pye, you are for sentence on a series of charges, most of which are being prosecuted by Police, but there is also a Corrections charge of breaching a community work sentence by failing to report. I am going to deal with that first, because it is the earliest in time, and I will then deal with the facts of the other matters.

[2]        You were sentenced to 80 hours’ community work in November 2020 for driving whilst disqualified, in the aggravated form, and possession of a firearm. After Corrections made numerous attempts to engage with you, you were inducted into your sentence on 12 March 2021. You signed an ongoing instruction to attend community work every Friday, commencing 19 March 2021, but you subsequently changed your reporting day to Saturdays. Because of your transient lifestyle, Probation had difficulty maintaining contact with you.  Your  reporting was erratic.  The last day you attended was Saturday  24 July 2021. You were not breached at that time by reason of the COVID-19 lockdown and because you had returned to your family home in Great Barrier Island. Because of the COVID restrictions, you were excused until 27 July of 2022 but were then expected to re-engage with your community work sentence. You were contacted in early July 2022 and asked to re-engage. You had not re-engaged by 30 July. You were contacted again and you eventually agreed to return to  Auckland  but  failed  to  attend  community  work  on  13 August 2022. At that point, you were breached. You had completed 35 hours of community work, leaving 45 hours outstanding.

[3]        Next, you face a charge of receiving a motor vehicle. The complainant’s Mazda was stolen sometime between 16 and 18 August 2023. Sometime between those dates, you received the Mazda from unknown persons. You were seen driving it on 22 August 2023. It had stolen registration plates on it. Police arrested you. When they spoke to you, you said that you thought it was funny that the vehicle was already stolen. The vehicle had suffered damage, including a pulled ignition and a broken quarter light window.

[4]        You  were bailed by the Court on the initial charge or charges on    12 September 2023. I correct that: before you were bailed, there were two burglary offences, committed on 23 August and 7 September 2023. You

1      Police v Pye [2024] NZDC 28606.

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

waited outside the secured parking lot of an apartment building in Grey Lynn for residents to leave the building. When a resident left the secure parking area, you gained entry. You walked to a bike rack and removed two bikes. You left with both bikes, valued at around $1,500 and somewhere between

$1,000 to $3,000.

[5]        On the afternoon of 6 September 2023, you were at another address in the Auckland Central Business District. You gained entry to the secured parking lot of that address and used a tool to cut a chain lock which was securing an electric scooter. You stole the scooter. It was valued at about

$900. When the police spoke to you in relation to those offences, you said that someone had stolen your bike so you stole someone else’s.

[6]        As I said, on 12 September 2023, after the commission of those offences, you were bailed by the Court. So, the remaining charges were committed while on bail.

[7]        On 29 December 2023, you were observed on CCTV footage smashing the rear passenger window of a vehicle parked in Three Kings. You got into the vehicle. That gives rise to a charge of unlawfully interfering with a motor vehicle.

[8]        On 18 January 2024, in the early hours of the morning, you went to an address in Mount Roskill. It was a vacant lot with a building under construction, but I understand it was connected to another property with a home on it. You entered the construction site and stole a compressor valued at $16,643 by loading it into the vehicle which is the subject of the unlawful interference charge. At about 6 pm on the same day, you returned again to the address and syphoned gasoline from a digger. Your entry onto the property on those two occasions gives rise to another burglary charge.

[9]        In relation to this set of offending, there is also a resisting charge. You were seen by Police on the evening of 19 January 2024 approaching the previously stolen vehicle. Police told you that you were under arrest and grabbed you by the arm. You were instructed to place your hands behind your back. You pulled away and failed to co-operate. A struggle ensued between you and the police officers before you were eventually handcuffed.

[10]      Finally, there is a receiving offence, committed by you on 7 March 2024. This again involved commercial premises and a parking area in the basement level of the building. On the afternoon of 3 March, someone gained access to the basement level of the address. That person cut through a heavy duty lock securing a metal cage containing a $4,000 road bicycle and stole the bicycle. You were subsequently found with the bicycle at a Ponsonby address on 12 March 2024. That gives rise to the receiving charge.

[3]                The Judge adopted a global starting point of 29 months’ imprisonment. Mr Pye pleaded guilty to the charges, so the Judge deducted six months. His Honour added three months for Mr Pye’s extensive criminal history and made no deduction for remorse or personal circumstances.

A précis of the case for Mr Pye on appeal

[4]                On behalf of Mr Pye, Mr Megala contends the Judge should have afforded “full credit” for Mr Pye’s guilty pleas — an additional five percent — and provided the same modest discount for Mr Pye’s personal circumstances. Mr Megala observes the pre-sentence report  referred  to  Mr  Pye’s  mother  suffering  a  terminal  illness.  Mr Megala also contends the Judge erred in not discounting the sentence for remorse.

Analysis

[5]                The level of guilty plea discount requires an evaluation of all the circumstances, including timing of pleas.3

[6]                Mr Pye’s guilty pleas were entered at different times. The earliest came five months after his first appearance, and Mr Pye failed to attend court twice (and otherwise breached the conditions of his bail). Three of the charges were amended and, as Mr Ganchi for the respondent observed, Mr Pye benefited from those amendments. It follows the Judge did not err in not providing “full credit”.

[7]                Remorse must be tangible to warrant a discount beyond that otherwise subsumed by a guilty plea.4

[8]                The case for a remorse-based discount essentially rests on the pre-sentence report and Mr Pye’s preparedness to engage in a restorative justice process. While the former refers to Mr Pye showing “regret”, it adds Mr Pye “was however quick to say

... everyone received their property back unharmed as a form of ... minimisation”. The restorative justice argument is identical to the position in Ng v R and to the case cited therein,5 in which the argument was rejected. Like the Judge then, I am unpersuaded separate discount was warranted.

3      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

4      See, for example, Kohu v R [2023] NZCA 343.

5      Ng v R [2024] NZHC 3742.

[9]                The situation in relation to Mr Pye’s mother is unfortunate. However, nothing in the pre-sentence report or the record more generally demonstrates error in connection with the absence of discount for personal circumstances.

[10]It follows no issue of a different sentence arises.

Result

[11]The appeal is dismissed.

……………………………..

Downs J