Reed v Police
[2025] NZHC 749
•31 March 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-703
[2025] NZHC 749
BETWEEN MICHAEL HENRY REED
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 31 March 2025 Appearances:
J E Tulloch for Appellant R Kendall for Respondent
Judgment:
31 March 2025
(ORAL) JUDGMENT OF WILKINSON-SMITH J
Solicitors:
Meredith Connell, Auckland J Tulloch, Auckland
REED v NEW ZEALAND POLICE [2025] NZHC 749 [31 March 2025]
Introduction
[1] The appellant Michael Reed appeals against a sentence of two years and 10 months’ imprisonment imposed by his honour Judge E M Thomas in the Auckland District Court on 22 August 2024.1
[2]Mr Reed was for sentence on the following charges:
(a)burglary — 19 October 2023;2
(b)failing to answer District Court bail — 19 October 2023;3
(c)breach of community work — 16 November 2023;4
(d)receiving (a Nissan vehicle) — 5 December 2023;5
(e)receiving (laser) — 5 December 2023;6
(f)receiving (a moped motorcycle) — 25 December 2023;7 and
(g)unlawfully in an enclosed yard — 6 March 2024.8
[3] The District Court adopted a starting point of 18 months’ imprisonment on the lead charge of burglary and uplifted that to a global starting point of three years’ imprisonment to reflect the remaining charges.
1 New Zealand Police v Reed [2024] NZDC 20605.
2 Crimes Act 1961, s 231(1)(a), maximum penalty 10 years’ imprisonment.
3 Bail Act 2000, s 24, maximum penalty three months’ imprisonment or fine up to $1,000. The oral judgment and District Court judgment refer to District Court bail. This was erroneous. The conviction relates to Police bail.
4 Sentencing Act 2002, s 71(1)(a), maximum penalty three months’ imprisonment or fine up to
$1,000.
5 Crimes Act 1961, ss 246 and 247(a), maximum penalty seven years’ imprisonment.
6 Crimes Act 1961, ss 246 and 247(a), maximum penalty seven years’ imprisonment.
7 Crimes Act 1961, ss 246 and 247(b), maximum penalty one year imprisonment.
8 Summary Offences Act 1981, 29(1)(b), maximum penalty three months’ imprisonment or fine up to $2,000.
[4] A 10 per cent uplift (three months) was applied to reflect Mr Reed’s criminal history and the fact that the offending was committed on bail or while subject to sentence.
[5] A 15 per cent reduction (five months) was applied to recognise Mr Reed’s guilty plea to the burglary charge.
[6]The end sentence was two years and 10 months’ imprisonment.
[7] The appellant says the end sentence was manifestly excessive because the starting point for the lead burglary charge of 18 months was too high.
[8] The appellant also seeks to file fresh evidence on appeal, namely an alcohol and drug report addressing Mr Reed’s addiction issues and says that a further discount should be applied to recognise those factors.
[9] The respondent opposes the appeal and says the District Court Judge did not err, and the end sentence was not manifestly excessive. The respondent acknowledges that the additional evidence provided, namely the alcohol and drug report, would have justified a potential reduction of 10 to 15 per cent, however the practical effect of such a reduction would not reduce the sentence in such a way that, if excluded, the sentence would be manifestly excessive.
[10] The difference of between three and five months would maintain an end sentence of more than two years’ imprisonment.
Factual background
Burglary
[11] On 19 October 2023, at 12.55pm, Mr Reed entered a commercial premises which was not tenanted at the time, was unoccupied and was being advertised for lease. Mr Reed forced entry through temporary fencing and a wooden fence at the rear of the premises, damaging the wooden fence in the process. Mr Reed then climbed onto the roof of the building at the premises and attempted to dismantle the
air-conditioning unit, which he also damaged. He then removed copper piping from the roof and was located by police and arrested. The removal of the copper piping involved some structural damage to the building.
Receiving
[12] On 5 January 2023, police located a stolen Nissan Tiida travelling on Ellerslie Panmure Highway and conducted a traffic stop. Mr Reed was driving the stolen vehicle. A search of the vehicle located the stolen Pro Shot AS2 laser behind the passenger seat. The laser was valued at $3,852.50.
[13] The car Mr Reed was caught driving had stolen plates. That car had been stolen from a construction site. Mr Reed was on bail at the time.
[14] On 3 January 2024 while still on bail, Mr Reed was caught riding a stolen moped.
Unlawfully in an enclosed yard (Summary Offences Act)
[15] On 6 March 2024 while on bail and on a sentence of intensive supervision, Mr Reed and a friend broke into a house in Ellerslie and stole copper piping from the kitchen. Extensive damage was caused to a wall in the house in the process. This was charged as unlawfully being in an enclosed yard but could easily have been charged as a burglary.
[16] The burglary on 19 October 2023 occurred on the same day that Mr Reed had been sentenced to community work for other charges including burglary. Mr Reed had not completed that sentence at the time Judge Thomas sentenced him on the matter currently under appeal, and there was therefore an additional charge of breaching the sentence of community work, also before Judge Thomas.
The approach on appeal
[17] An appellant may appeal against sentence as of right under s 244 of the Criminal Procedure Act 2011.
[18] An appeal against sentence must be allowed if an appellate court is satisfied that for any reason there is an error in the sentence imposed and that a different sentence should be imposed.9 In any other case the appellate court must dismiss the appeal.10 Sentencing is not a science, and an appellate court will not intervene unless the end sentence is outside the range available to the sentencing Judge.11 An appellate decision is focused on the end result rather than the process by which the end sentence was reached.12
[19] When allowing an appeal on the basis that there was an error in the sentence imposed, the appellate court may: set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate, vary the sentence or any part of the sentence or any condition of sentence, or remit the sentence to the court that imposed it.
[20] The appellate court does not start afresh or simply substitute its own opinion for that of the sentencing Judge, rather it must be shown that there was an error, whether intrinsically or because of additional material submitted on appeal, that affects the appropriate outcome.13 The Court will not intervene where a sentence imposed is within a range that could be properly justified by accepted sentencing principles.14
The District Court decision
[21] Judge Thomas took the October burglary charge as the lead charge, noting that it involved breaking through security in the form of a security fence and a gate, going onto private property and causing damage in trying to remove the items that were removed. The Judge specifically noted that this was not a house with people at home but said the lowest starting point that could be adopted was 16 months’ imprisonment.
[22] The Judge then turned to the receiving charges, particularly the vehicles and noted that one charge of theft of a motor vehicle could attract a starting point of 12 to
9 Criminal Procedure Act 2011, s 250(2).
10 Section 250(3).
11 Palmer v R [2016] NZCA 541 at [17].
12 Kumar v R [2015] NZCA 460 at [81].
13 R v Shipton [2007] 2 NZLR 218 (CA) at [138].
14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
18 months’ imprisonment. The Judge noted that the charges in Mr Reed’s case were receiving but the offences had the same maximum penalty of seven years’ imprisonment, so the starting point should be broadly similar. That would be a potential sentence of 12 to 18 months for each motor vehicle.
[23] The Judge addressed the issue of totality noting that the Court does not simply add one sentence to another as that would result in a sentence that was too high and unfair. The Judge specifically noted the need to step back and look at the least restrictive sentence available. The starting point the Judge arrived at was three years’ imprisonment.
[24] The Judge then went on to consider adjustments to the starting point noting that Mr Reed had offended while on bail and while subject to a sentence in respect of some of the charges, and that he has relevant previous convictions. The Judge considered that the lowest possible uplift was 10 per cent.
[25] Mr Reed pleaded guilty to the burglary charge after case review hearing, warranting a reduction of 15 per cent to recognise the guilty plea.
[26] The end sentence on the charges of receiving and burglary was two years and 10 months’ imprisonment. On each of the other charges a concurrent sentence of three months’ imprisonment was imposed
Discussion
[27] The appellant says that the District Court Judge erred by adopting a starting point that was too high for the lead offense of burglary and failing to give credit for personal mitigating factors. The new material which the appellant seeks to produce on appeal relates to Mr Reed’s addiction, willingness, and capacity for rehabilitation. Because that material was not available at the original sentencing, it was not recognised in the sentencing process.
[28] The appellant relies on the fact that the burglary charge related to a commercial premises and cites the case of Walker-Paki v R where a starting point of 10 months’
imprisonment was adopted for burglary.15 That case involved entering a closed yard at Mitre 10 when the business was closed. Mr Walker-Paki uplifted various items from around the yard before entering an enclosed garden centre and taking further items. He was arrested attempting to leave the premises.
[29] In Wratt v Police a starting point of six to nine months’ imprisonment was described as justified for a burglary that involved cutting through a wire fence of a Bunning’s Trade Store and stealing a modest value of timber, worth at most a few hundred dollars.16
[30] In Te Rure v New Zealand Police, the appellant entered a Foursquare store and purchased a bottle of wine.17 After the store closed the appellant smashed and climbed through a rear window into the mail room. He was unable to open a locked internal door leading to the rest of the store and exited the building before being arrested shortly afterwards, at which point he was unable to make a coherent statement and appeared significantly affected by drugs and/or alcohol.
[31] A starting point of 12 months in that case was held to be excessive and a 10- month starting point substituted.
[32] In Benson v Police, a starting point of 12 months was described as the upper end of the range for a lead burglary charge which involved breaking into a Subway restaurant causing $1,000 worth of damage and using a claw hammer to take money from a till.18
[33] The respondent says that the cases relied upon by the appellant are distinguishable and that it was open to the District Court to adopt a starting point of 18 months’ imprisonment for the lead charge of burglary when all features of that offending are considered.
15 Walker-Paki v Police [2024] NZHC 261.
16 Wratt v Police [2012] NZHC 3137.
17 Te Rure v New Zealand Police [2021] NZHC 3048.
18 Benson v Police [2018] NZHC 296.
[34] The respondent accepts that the burglary was a commercial premises which reduces the risk of confrontation with civilians, however it involved a degree of planning on Mr Reed’s part. Mr Reed caused damage to the premises including damaging a wooden fence at the rear of the property when gaining entry, dismantling and damaging an air conditioning unit on the roof, and extracting copper wire from the roof, disturbing a structural element of the building.
[35] The respondent relies on the case of R v Stevens.19 Mr Stevens went to a commercial premises and used keys he had from previous employment to gain access to the building and deactivate the security system. Once inside the building he took several meters of copper piping from the walls. The Court of Appeal considered that an appropriate starting point was 18 months’ imprisonment, noting that the theft of copper piping from interior and exterior of buildings imposes considerable inconvenience on property owners.
[36] In Walker v New Zealand Police, the appellant was found guilty of burglary and intentional damage in relation to a performing arts centre which was undergoing repairs for damage.20 Mr Walker was working as a sub-contractor and gained entry to the building causing damage by cutting cables and taking doors and switchboards. The offending was aggravated by the fact it was related to Mr Walker’s employment. The building was known to be unoccupied. A starting point of two years’ imprisonment was upheld on appeal.
[37] The respondent says that Mr Reed’s offending is comparable to that in Walker in that unoccupied premises were targeted and structural elements of the building disturbed. The aspect of employment which elevated Mr Walker’s starting point to one of two years’ imprisonment is not present in this case, where a starting point of 18 months was taken. It must also be noted that in this case Mr Reed did not enter the building on the occasion of the October burglary. The later March occasion where he did enter an occupied house was not charged as burglary and had a much lower available sentence.
19 R v Stevens [2009] NZCA 190.
20 Walker v Police [2021] NZHC 2630.
[38] The starting point of 18 months’ imprisonment in this case was possibly stern however the overall end sentence for all offending must be considered. The uplift for the remaining charges was 18 months’ imprisonment which can only be described as extremely moderate. The defendant has a history of recidivist offending and much of this offending was committed while subject to bail and sentence. The sentencing picture was complicated by the fact that the prosecution chose to accept a guilty plea on a Summary Offences Act charge of being unlawfully in an enclosed yard in respect of the last offending, where Mr Reed entered a residential property and removed copper pipes and a hot water cylinder and caused extensive damage to the walls of the property. That charge, as I have said, carries a maximum sentence of three months’ imprisonment.
[39] It is important that the Court does not impose a de facto sentence for a more serious charge in respect of that final offending, but the final offending does reflect the recidivist nature of Mr Reed’s offending.
[40] The Court of Appeal in Orchard v R emphasised the importance of maintaining an evaluative approach to establishing a starting point.21 There is a need to avoid a formulaic or mathematical approach to the assessment of sentencing.
[41] In this case the appellant appeals one aspect of the sentencing, namely the starting point for the lead offending, but otherwise says the sentence should not be disturbed. Where a Judge sentences an offender for a series of offending, it is inevitable that the focus of any appeal becomes the end sentence. The most important assessment is whether the end sentence is manifestly excessive looking at the offending as a whole.
[42] Looking at this offending as a whole, it cannot be said that a global starting point of three years’ imprisonment was manifestly excessive. The offending involved extremely quick recidivism including on the day that Mr Reed had appeared in the District Court for sentencing on similar charges.
21 Orchard v R [2019] NZCA 529, [2022] NZLR 37.
[43] The offending in October 2023 and the offending in March 2024, while charged differently, was remarkably similar. Some of the offending was committed on bail, some was committed while subject to sentence.
[44] I agree with the respondent that the global starting point could have been higher. Even if the sentence of 18 months’ imprisonment on the lead charge could be said to be too high, which I am not persuaded that it was, a global starting point of three years was clearly available to the Court and could have been structured in a number of ways. Looking at Mr Reed’s history, I count approximately 50 previous offences — mostly dishonesty offending — with a consistent and regular pattern of offending. His offending while on bail reveals an even more disturbing picture. I have not counted the offences committed on bail, but the printout of convicted offences committed whilst on bail runs to seven pages.
[45] In my view, there might be an argument as to the way in which the sentence was structured, but there cannot be any real argument that the global starting point was well within range.
[46] That leaves the issue of whether the additional material provided on appeal should lead to further discount.
[47] The respondent acknowledges that a discount for those factors outlined in the alcohol and drugs report might be available but says that would amount to a matter of a few months, and the end sentence should not be disturbed because, even allowing for that potential available discount, it is not manifestly excessive.
[48] The report that has been provided is not fresh in the sense that it could not have been provided prior to sentence but it was not provided, and it is clearly cogent and for that reason I accept it as admissible on appeal.
[49] The report reveals long-standing issues with drugs and various rehabilitative efforts over the years with varying and limited success. It is clear that Mr Reed’s offending pattern is related to his addiction. In my view just looking at his criminal history, it is also clear that he would benefit from engagement in rehabilitative
programmes. I am not persuaded however that the level of discount available, had that report been before Judge Thomas, would have substantially altered the end sentence.
[50] The respondent also seeks a discrete five per cent discount for remorse. Looking at the pre-sentence report as well as the alcohol and drug report, Mr Reed, once he is sober, can look at his behaviour and I accept feel remorse and shame. However, that remorse and shame has not to date affected his ongoing offending behaviour when he is back in the community, which has been consistent. Expressions of remorse alone in such circumstances are unlikely to attract a discrete discount. None of his actions demonstrate remorse. Rather, it seems that he relapses and continues to offend. I would not apply a discount for remorse.
[51] Mr Reed, in my view, needs to understand that his personal rehabilitative needs are something that he will have to address going forward. If he continues to offend in the way he has been, he will simply spend more time in custody. As he said himself to the PAC report writer, he is not a young man, and this is not youthful or impulsive offending.
[52] It was clear to me from reading Judge Thomas’ decision that the Judge was at pains to impose the least restrictive sentence possible and in some ways imposed a sentence that was generous. This sentence could have been higher.
[53] Mr Reed will be subject to release conditions following his sentence of imprisonment. At that point he should take up all possible opportunities to address his addiction issues if he is truly remorseful, as he says. If he chooses not to take up those opportunities, the consequences for him are clear.
[54] I am not persuaded that the District Court Judge erred, and I find the sentence imposed was not manifestly excessive even allowing for the new material before this Court.
[55]The appeal is dismissed.
Wilkinson-Smith J
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