Reuben-Kahia v Police
[2025] NZHC 1543
•12 June 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2025-404-003
[2025] NZHC 1543
BETWEEN HAMISH REUBEN-KAHIA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 3 June 2025 Appearances:
J Olsen for the appellant
N Herewini for the respondent
Judgment:
12 June 2025
JUDGMENT OF BLANCHARD J
[Appeal against sentence]
This judgment was delivered by me on 12 June 2025 at 4.00 pm Registrar/Deputy Registrar
Solicitors:
Augusta Chambers, Auckland Meredith Connell, Auckland
REUBEN-KAHIA v NEW ZEALAND POLICE [2025] NZHC 1543 [12 June 2025]
[1] Mr Reuben-Kahia appeals against a decision of Judge N R Dawson in the District Court at Auckland dated 27 November 2024,1 sentencing him on a charge of injuring with intent to injure.2 He pleaded guilty to the charge and was sentenced to two years and eight months’ imprisonment.
The offending
[2] Mr Reuben-Kahia and his brother were at their mother’s home address in Mount Wellington. They had both been consuming alcohol throughout the afternoon and were heavily intoxicated.
[3] The victim lived next door to Mr Reuben-Kahia’s mother. His mother went over to the victim’s property. She knocked on the victim’s front door. She was crying and the victim tried to console her. He invited her into his house.
[4] Shortly after, Mr Reuben-Kahia knocked on the victim’s door. He confronted the victim and asked aggressively, “is my mum over here?” The victim said, “yes, she is, but you’re not coming in.” The victim attempted to close the door, but Mr Reuben- Kahia prevented this by putting his foot in the doorway.
[5] The victim and Mr Reuben-Kahia became involved in a physical altercation. Mr Reuben-Kahia picked up a chair and threw it at the victim. At around this time, his brother joined him and began to punch the victim multiple times. His brother then went to his mother’s address and returned with a kitchen knife.
[6] The altercation continued and Mr Reuben-Kahia got possession of a crowbar. He used this to try to strike the victim in the face. Initially, he missed. But he then struck the victim with the crowbar one time on each of his head, chest and elbow.
[7] The victim was admitted to hospital and suffered a laceration to his forehead and significant swelling to his left eye and left forearm.
1 New Zealand Police v Reuben-Kahia [2024] NZDC 29589.
2 Crimes Act 1961, s 189(2). Maximum penalty five years’ imprisonment.
District Court decision
[8]The Judge considered that there were several aggravating factors present.
These were:3
(a)use of weapons;
(b)serious injury to the victim;
(c)victim vulnerability, because he was faced by two people with weapons;
(d)home invasion;
(e)offending on bail; and
(f)previous convictions and a history of violence.
[9] The Judge considered that the offending fell within the upper end of band two in Nuku v R.4 He therefore adopted a starting point of three years.5
[10] The Judge applied uplifts of two months for Mr Reuben-Kahia’s previous convictions and two months for offending while on bail.6
[11] The Judge then applied a discount of 20 per cent for an early guilty plea.7 However, he refused further reductions for remorse and rehabilitation.8
[12] As I have said, the result was a final sentence of two years and eight months’ imprisonment.9
3 New Zealand Police v Reuben-Kahia, above n 1, at [8].
4 At [12], citing Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38].
5 New Zealand Police v Reuben-Kahia, above n 1, at [12].
6 At [12].
7 At [9] and [13].
8 At [9] and [11].
9 At [13].
Appeal principles
[13] To succeed on his appeal, Mr Reuben-Kahia must demonstrate there was a material error in the sentence imposed, and a different sentence should take its place.10 A material error requiring correction will be established if the sentence is manifestly excessive or wrong in principle, or if there are exceptional circumstances.11
[14] The focus is on the end sentence rather than the process by which it was reached.12 The appellate court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.”13
The appeal
[15] Mr Olsen for Mr Reuben-Kahia argues that the starting point should have been two years and nine months’ imprisonment. On the other hand, he accepts that the uplift of four months for previous convictions and offending on bail was appropriate. He also takes no issue with the guilty plea reduction. However, he argues that discrete discounts of five per cent should have been allowed for each of remorse, rehabilitation and personal background. Therefore, there should have been a total further reduction of 15 per cent. The result of the changes that Mr Olsen argues for would be to reduce the sentence to two years and one months’ imprisonment.
The starting point
[16] In Nuku v R,14 the Court of Appeal adapted the bands for intention to cause grievous bodily harm in the guideline judgment of R v Taueki,15 to apply to offending involving intent to injure.
[17] The three-year starting point adopted by the Judge was at the top of band two in Nuku. Mr Olsen argues that this was excessive. As I have said, he submits that the starting point should have been two years and nine months.
10 Criminal Procedure Act 2011, s 250(2).
11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[31].
12 At [36].
13 A v R [2018] NZCA 225 at [34].
14 Nuku v R, above n 4, at [38].
15 R v Taueki [2005] 3 NZLR 372 (CA).
[18] Mr Olsen accepts that the aggravating factors referred to by the Judge were present, with the exception of serious injury to the victim. He submits that the injury suffered by the victim in the present case was not sufficient to qualify as serious injury of the kind referred to in Taueki. He says that only injury that was life-threatening or caused permanent disability would qualify.16
[19] Mr Olsen says that the most relevant case is R v Merrin.17 In that case, the victim bumped shoulders with Mr Williams while walking along a footpath. As a result, Mr Williams and his co-defendant, Mr Merrin, mounted a concerted physical attack on the victim, kicking him in his lower legs. Mr William picked up a nearby piece of timber and struck the victim on the back of the head. Once the victim was on the ground, the defendants continued to kick him. The victim sustained a large cut to the back of his head and a bruise to the right side and back of his neck.
[20] Lang J considered the aggravating factors were multiple offenders, a blow to the head and the use of weapons. The Judge adopted a starting point for Mr Williams of two years and nine months’ imprisonment.18
[21] While offending in this case is similar to Mr Williams’ offending in Merrin, Mr Reuben-Kahia’s offending has the additional element of home invasion. Mr Reuben-Kahia also struck the victim with the crowbar more than once. This justifies a higher starting point in the present case.
[22] In my view, a starting point of three years was justified. Band two applies when there are three or fewer of the aggravating factors listed at [31] of Taueki. Even if Mr Olsen is right that this was not a case involving serious injury, four of the aggravating factors were still present (use of weapons, attacking the head, multiple attackers and home invasion). In the circumstances, the Judge was justified in adopting a starting point at the top of band two.
16 R v Taueki, above n 14, at [39].
17 R v Merrin [2021] NZHC 3549.
18 At [12].
Remorse
[23] Mr Reuben-Kahia expressed his remorse in a letter to the Judge. Unfortunately, the letter is not before me. However, the pre-sentence report records: “Mr Reuben-Kahia is remorseful and said he ‘takes full accountability for [his] actions’”.
[24] The Judge did not allow a reduction for remorse because he considered that Mr Reuben-Kahia was not in fact remorseful. This was because:19
If you are truly remorseful you will stop offending. You do not just write letters claiming remorse. I do not accept you are in fact remorseful.
[25] Mr Olsen submits that this is wrong and illogical. He says that it does not follow that, because Mr Reuben-Kahia has previously offended, he cannot be remorseful. He also says the Judge double counted Mr Reuben’s criminal history because his previous convictions resulted in an uplift, and they also were used to deny him a reduction for remorse.
[26] However, in my view, the Judge was entitled to form the view that Mr Reuben- Kahia was not truly remorseful. The only evidence of his remorse that was available to the Judge was Mr Reuben-Kahia’s letter, which, as I have said, is unfortunately not available for me to review, and the brief statement in the pre-sentence report that I have referred to. Further, the pre-sentence report casts doubt on whether Mr Reuben- Kahia is in fact remorseful. He suggested to the report writer that his role in the offence was misrepresented. He also “denied that he was aggressive towards the neighbour and said that it was the reverse.”
[27] I agree with Mr Herewini, who appeared for the Police, that Mr Reuben- Kahia’s minimisation of his offending weighs against any discount for remorse.
Rehabilitation
[28] Mr Reuben-Kahia was on bail at the Grace Foundation at the time of sentencing. He was undertaking rehabilitation there, but he absconded on
19 New Zealand Police v Reuben-Kahia, above n 1, at [9].
28 September 2024. He was on the run for around two months. He was arrested on 26 November 2024 (the day before he was sentenced). He had only undergone around one month of rehabilitation when he absconded. Despite this, Mr Olsen submits that Mr Reuben-Kahia should still receive a discount of five per cent for his willingness to undertake rehabilitation and the, albeit limited, steps he has already taken. However, I agree with Mr Herewini that, in view of what occurred, it was open for the Judge to refuse a discount for rehabilitation.
Personal background
[29] On 20 February 2025 (roughly three months after Mr Reuben-Kahia was sentenced), a Hōkai Tapuwae report was completed by the Department of Corrections. This report contains information regarding Mr Reuben-Kahia’s background that was not available to the Judge.
[30] Mr Olsen applies to have the report admitted as further evidence on appeal. He submits that the report is fresh because it was not available at the time of sentencing. He also submits that the report is credible and cogent because it was prepared by the Department of Corrections.
[31]The Police do not oppose the report being admitted.
[32]I admit the report into evidence.
[33]The Hōkai Tapuwae report contains the following relevant background:
(a)Mr Reuben-Kahia was exposed to a lot of violence in his upbringing. He shared a memory with the report writer of an aunt being thrown in the boot of a car and taken to the bush to be killed, although ultimately, the threat was not carried through. He knew of sexual assault within his whānau, although he was not the victim of abuse.
(b)His parents “enjoyed partying”. They smoked cannabis and drank alcohol almost every day. Mr Reuben-Kahia in turn started drinking alcohol and smoking cannabis at nine or 10 years’ old. At 13 or 14, he
started using methamphetamine. He had seen his father using methamphetamine and was comfortable trying it for the first time.
(c)Mr Reuben-Kahia and his ex-partner met when he was around 15. By age 16, they were teenage parents to a son.
(d)Although methamphetamine has been a factor in Mr Reuben-Kahia’s previous offending, his main addiction is to alcohol. He considers himself to be an alcoholic.
[34] Mr Olsen relies on these matters to argue for a five per cent discount. In making this submission, he relies on the decision of the majority in Berkland v R.20
[35] However, I agree with Mr Herewini that, while a discount may be available for these background factors, the five per cent discount sought would not materially alter the end sentence. Applying a five per cent discount would result in a one-month reduction in the end sentence. That would be tinkering.
Result
[36] I consider the end sentence imposed was within the range that can properly be justified by accepted sentencing principles. It was not manifestly excessive.
[37]The appeal is dismissed.
Blanchard J
20 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
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