Robinson v Police
[2025] NZHC 2862
•30 September 2025
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2024-488-113
CRI-2024-488-114 [2025] NZHC 2862
BETWEEN JOHN CLIFFORD WALTER ROBINSON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 24 September 2025 Appearances:
C Cull KC for the appellant
M Wilkinson for the respondent
Judgment:
30 September 2025
JUDGMENT OF BLANCHARD J
[Appeal against conviction and sentence]
Solicitors:
Catherine Cull KC, Kerikeri MWIS Lawyers, Whangārei
JOHN CLIFFORD WALTER ROBINSON v NEW ZEALAND POLICE [2025] NZHC 2862 [30 September 2025]
[1] Mr Robinson appeals against his conviction and sentence in two separate proceedings. The first is a conviction of theft of livestock.1 This was the subject of a judge-alone trial before Judge D J Orchard in the District Court at Kaikohe.2 The second is a conviction of wilful damage.3 This was the subject of a judge-alone trial before Judge D J McDonald in the District Court at Kaikohe.4 On 18 October 2024, Judge McDonald sentenced Mr Robinson in relation to both matters.5
Theft of livestock
[2] Mr Robinson is, through a company, one of the owners of a 40-hectare rural property near Opua which operates as a quarry. Brent Suckling owns a 50-hectare neighbouring property, which shares a boundary with Mr Robinson’s property.6
[3] Mr Robinson and Mr Suckling met to discuss damage to the fence between the two properties that had occurred because of forestry work Mr Robinson was carrying out on his land. Mr Robinson reassured Mr Suckling that he was going to erect a fence at his cost.7
[4] Around six months later, they had a second conversation when Mr Suckling called Mr Robinson about the condition of the fence. Mr Suckling was concerned about keeping his sheep and horses on his property. During the conversation, Mr Robinson said he wanted to move the fence a little over the boundary. Mr Suckling said that he wanted a track on his side of the boundary and, if that could be achieved, he might be open to the idea of moving the position of the fence. His evidence was that Mr Robinson agreed to that and he also agreed that he would not carry out the work unless Mr Suckling was present and without giving him the opportunity to move his livestock before the fence went down.8
1 Crimes Act 1961, s 220A. Maximum penalty seven years’ imprisonment.
2 New Zealand Police v Robinson [2024] NZDC 17540.
3 Summary Offences Act 1981, s 11. Maximum penalty three months’ imprisonment or a fine not exceeding $2,000.
4 New Zealand Police v Robinson [2024] NZDC 11829.
5 New Zealand Police v Robinson [2024] NZDC 298932.
6 New Zealand Police v Robinson, above n 2, at [1].
7 At [3].
8 At [3].
[5] Mr Suckling said that what in fact happened was that Mr Robinson pulled the fence down without involving him. Further, Mr Robinson carried out preparatory work that indicated he planned to re-erect the fence well over the existing boundary.9
[6] A heated conversation resulted, but, at the end of it, Mr Suckling said that they shook hands and Mr Robinson agreed that he would not erect even a post unless Mr Suckling was present.10
[7] Mr Suckling’s evidence was that, because of the fence being down, his small flock of Wiltshire sheep, composed of four ewes and one ram, escaped into Mr Robinson’s property. After Mr Suckling became aware of this, he went to the site and found that fencing contractors were erecting a fence. After he spoke to the contractors, they stopped work.11
[8] A heated exchange followed between Mr Robinson and Mr Suckling over the telephone. As a result, Mr Robinson put the fence back in its original position but without a gate.12
[9] Mr Suckling responded by cutting the wires of the fence. He did this intending to get his sheep back and then replace the gate. But he was not able to get his sheep back and cutting the wires further angered Mr Robinson because it damaged some of the fencing work already carried out and meant that he incurred additional expense. Mr Robinson then served a trespass notice on Mr Suckling meaning that Mr Suckling was not able to retrieve his sheep.13
District Court judgment
[10] Judge Orchard recorded that Mr Robinson, who represented himself, focussed his defence on two points. First, he argued that the prosecution had failed to prove
9 At [4].
10 At [4].
11 At [2] and [4].
12 At [6].
13 At [6].
that the sheep had come onto his property via the destroyed fence. Second, he argued that the prosecution had failed to prove that the sheep were in fact on his property.14
[11] The Judge found that the first argument was irrelevant. It did not matter how the sheep came to be on Mr Robinson’s property. The real issues were whether the sheep were on Mr Robinson’s property and whether he intentionally detained them there.15
[12] The Judge found that it was beyond doubt that the sheep were on Mr Robinson’s property and he intentionally kept them there. The Judge based this finding on Mr Robinson’s own admission, on the evidence of Mr Suckling and his partner, Kim Finkler, and on the evidence of Constable Hayley Chircop.16 In particular, the Judge accepted Constable Chircop’s evidence that Mr Robinson told her that Mr Suckling could have his sheep back when he paid for the repairs to the fence.17
[13] Having considered all the evidence, the Judge concluded that she was satisfied beyond reasonable doubt that Mr Robinson:18
(a)had possession and control of the sheep;
(b)used the sheep to try and force Mr Suckling to pay for the repairs to the fence;
(c)by so using the sheep, was acting dishonestly in that he did not have a belief he had Mr Suckling’s consent, approval or authority to either possess his sheep or use them in that way;
(d)did not have a belief at the time of using the sheep that he had a lawful right to use them in that way; and
14 At [7]–[8].
15 At [9].
16 At [10]–[13].
17 At [10].
18 At [16].
(e)intended to permanently deprive Mr Suckling of the sheep in that he intended to attach a condition to their return (the payment for the repairs to the fence) which he had no right to attach, and which was inconsistent with Mr Suckling’s ownership rights.
[14] Based on these findings, and relying on Ellis v Attorney-General,19 the Judge found that the charge against Mr Robinson was proved beyond reasonable doubt.20
Appeal grounds
[15] Ms Cull KC, who appeared for Mr Robinson, said that the Judge’s reliance on Ellis was misplaced. She submitted that this case is distinguishable from Ellis and the later case R v Huang,21 which takes a similar approach to Ellis.
[16] Ms Cull submitted that the present case is distinguishable from Ellis and Huang and the Judge erred because the following matters were not proven beyond reasonable doubt:
(a)That the sheep were “taken” by Mr Robinson as required by s 219 of the Crimes Act 1961. The sheep crossed on to Mr Robinson’s property of their own accord.
(b)Exactly what livestock or what number of livestock were on Mr Robinson’s property.
(c)That Mr Robinson intended to exercise control over the sheep. The sheep were not restrained. They were able to move from Mr Robinson’s property at any time. In making this submission, Ms Cull relied on Mr Robinson’s evidence that there was another part of the boundary that was unfenced. The sheep could have got back to Mr Suckling’s property by crossing the boundary in that area.
19 Ellis v Attorney-General HC Palmerston North CIV-2004-454-800, 14 December 2004.
20 New Zealand Police v Robinson, above n 2, at [17].
21 R v Huang HC Auckland CRI-2005-004-17388, 2 June 2006 at [22]–[24].
(d)That Mr Robinson had an intention to retain the sheep to force Mr Suckling to pay for the repair to the fence and, thus, whether Mr Robinson acted “dishonestly” and without “claim of right”, whether he “used” or “dealt” with the sheep, and whether he did so with intent to permanently deprive Mr Suckling of the sheep.
Appeal principles
[17] Under s 232(2) of the Criminal Procedure Act 2011, the Court must allow an appeal against conviction if:
(a)in the case of a judge-alone trial, the judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(b)in any case, a miscarriage of justice has occurred for any reason.
[18]Otherwise, s 232(3) requires the Court to dismiss the appeal.
[19] Under s 232(4), a miscarriage of justice means any error, irregularity or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial.
Decision
[20] In Ellis, the defendant took the complainant’s boat. At the time the defendant took the boat, one of his co-accused displayed a pistol to the complainant, and the defendant said that he would return the boat to the complainant if the complainant returned to him a cannabis crop he believed the complainant had taken.22
[21] Ronald Young J found that, in the context of an application for discharge with respect to a charge of robbery, there was a dishonest taking and that the defendant had no belief that there was a lawful basis for the taking of the boat. He concluded that
22 Ellis v Attorney-General, above n 19, at [6].
there was ample evidence upon which the jury could conclude that the defendant knew that the owner of the boat did not wish to allow him to take the boat.23
[22] Further, he considered that there was an intention to permanently deprive the defendant of the boat, notwithstanding that the defendant said that he would return the boat if the cannabis crop was returned. This was because imposing a condition requiring return of the cannabis crop involved doing an act which was inconsistent with the ownership of the boat by the complainant and illustrated an intention to permanently deprive. The defendant had no right to impose any conditions relating to the return of the boat to the complainant. This was a condition which manifestly the person imposing it had no right to impose.24
[23] In Huang, Ms Tao claimed that Mr Li owed her $16,000. She, Mr Huang and Mr Wang went to Mr Li’s house. Mr Huang and Mr Wang began to beat Mr Li and they demanded immediate repayment of the $16,000. Mr Li eventually agreed to pay the amount demanded. At Mr Huang’s request, Mr Li wrote out an IOU acknowledging the debt. The IOU referred to a vehicle being given as security for the debt. Ms Wang, Mr Li’s girlfriend, who was frightened by the beating and threats, offered to give her vehicle as security pending payment of the debt. Mr Huang required her to sign a change of ownership form. On the same day, Mr Huang registered the transfer of the vehicle into his own name.
[24] Mr Huang, Mr Wang and Ms Tao were all charged with aggravated robbery. They applied for a discharge on the ground that they did not intend to permanently deprive Ms Wang of the vehicle because it was intended that ownership would be restored to her upon the debt being repaid. However, relying on Ellis, Courtney J found that there was an intention to permanently deprive Ms Wang of her vehicle.25
[25] I agree that there are obvious differences between Ellis and Huang and the present case. The offending in the earlier cases was more serious. But I do not think the Judge was wrong to rely on Ellis.
23 At [8]–[9].
24 At [16].
25 R v Huang, above n 21, at [24]–[25].
[26] The prosecution was not required to prove that the sheep were “taken” by Mr Robinson. That is a requirement of s 219(1)(a) of the Crimes Act. Both Ellis and Huang involved “taking”. But theft can also occur due to “using” or “dealing” under s 219(1)(b). That is what the Judge found here.
[27] I also agree with Ms Wilkinson, who appeared for the Police, that there is no requirement for the exact livestock or number of livestock to be proven. The Judge was satisfied beyond reasonable doubt that some or all of the sheep were on Mr Robinson’s property. That is sufficient.
[28] Based on Mr Robinson’s evidence, it appears that, theoretically, the sheep could have returned to Mr Suckling’s property by crossing the boundary at the other location where he said there was no fence. However, practically, that seems to have been unlikely. The sheep did not return to Mr Suckling’s property. In the circumstances, I think it was open to the Judge to find that Mr Robinson intended to exercise control over the sheep.
[29] Having reviewed the evidence, I consider that the Judge was able to make the finding that Mr Robinson had an intention to retain the sheep to force Mr Suckling to pay for the repair to the fence. Constable Chircop’s evidence was clear that Mr Robinson told her that Mr Suckling could have his sheep back if he paid for the repairs. Further, in cross-examination, Mr Robinson acknowledged that he said that. Mr Robinson also said that Mr Suckling would have to identify the sheep before they could be returned. But that he put this further condition on the return of the sheep does not negate the fact that he was also saying that Mr Suckling would have to pay for the repair of the fence before the sheep would be returned.
[30] It is clear from the evidence that Mr Suckling made it known to Mr Robinson that he wanted the sheep back. Further, the evidence supports the Judge’s finding that Mr Robinson had an intention to retain the sheep to force Mr Suckling to pay for the repair to the fence. Thus, the evidence supports the Judge’s conclusion, based on Ellis and Huang, that Mr Robinson acted “dishonestly” and without “claim of right”, he “used” or “dealt” with the sheep, and he did so with intent to permanently deprive Mr Suckling of the sheep.
[31] For these reasons, I do not consider a miscarriage of justice has occurred. I dismiss the appeal against the theft of livestock conviction.
Wilful damage
[32]The wilful damage charge also involved the quarry property.
[33] At an earlier time, the property was owned by a company that Mr Robinson was the 100 per cent shareholder of. But that company went into liquidation and the liquidators disclaimed the property with the result that it vested in the Crown. However, by the time of the events that resulted in the wilful damage charge, the quarry was owned by a new company of which Mr Robinson was a 49 per cent shareholder. He was also the director of the company.26
[34] There is a right of way easement on the quarry property in favour of a neighbouring property. That property has an area of around one hectare and built on it is a small three-bedroom residential home. As the Judge did, I will refer to this property as the “home block”. The home block is surrounded by the quarry property.
The only lawful access to the home block is via the easement.27
[35] Originally, there was no driveway along the easement. But, during the period in which the property was owned by the company in liquidation, the previous owner of the home block approached the liquidators to see if they had any objection to him constructing a driveway along the easement. It appears that the liquidators did not object to this, and the driveway was formed. The driveway was concrete with a metal base underneath.28
[36] The Judge found that all of the concrete surface of the driveway was inside the easement. But, in one or more places, the metal base of the driveway encroached in a limited way outside of the easement.29
26 New Zealand Police v Robinson, above n 4, at [23]–[30].
27 At [31]–[32].
28 At [34]–[38].
29 At [37]–[39].
[37] On the day of the events that resulted in the wilful damage charge, Mr Robinson was at the quarry. He was on a digger with an arm and a front bucket. The tenant at the home block, Ms Greenwood, saw him and walked down onto the driveway. While she was standing on the concrete driveway, Mr Robinson deliberately brought the bucket of the digger down, smashing a piece of the concrete driveway very close to where Ms Greenwood was standing. The incident was recorded on video.30
[38] Based on the video, the Judge found it proved beyond reasonable doubt that Mr Robinson intentionally damaged the concrete driveway.31
[39] The Judge went on to say that Mr Robinson “continued on to smash up virtually the entire concrete driveway”.32 It is unclear what the Judge meant by this. He does not seem to have meant that the whole length of the driveway was destroyed. Rather, he meant that the whole width of the driveway was smashed in the area where Mr Robinson brought the front bucket down near to where Ms Greenwood was standing. This made the driveway unusable.
District Court judgment
[40] As I have said, the Judge found that it was beyond reasonable doubt that Mr Robinson intentionally damaged the concrete driveway. He then turned to consider whether Mr Robinson had any “lawful justification or excuse” or “claim of right”.
[41] The Judge found that he did not have any lawful justification or excuse.33 Mr Robinson’s actions derogated the terms of the easement.
[42] The Judge then turned to the question of whether Mr Robinson had a claim of right. He said that this arises where a lawful justification or excuse is not present, but the defendant has a mistaken belief that they were entitled to carry out the act by virtue of a proprietary or possessory right in the property. Such a belief is
30 At [40]–[41].
31 At [42].
32 At [42].
33 At [46].
subjective and thus need not be reasonable. However, the reasonableness of the belief may be a factor in determining whether the belief was actually held.34
[43] The Judge did not accept that Mr Robinson had any claim of right. Mr Robinson argued that he had a longstanding belief that the driveway was illegal and it was substantially interfering with his rights to access all the land of the quarry. As such, he believed he was entitled to “destroy” the driveway.35 However, having reviewed the evidence, the Judge concluded that Mr Robinson did not have a genuine belief that he was entitled to destroy the driveway.36
Appeal grounds
[44] Ms Cull’s first point for Mr Robinson was that, because he had an interest in the property, s 11(3) of the Summary Offences Act 1981 applies. This means it was necessary for the prosecution to prove beyond reasonable doubt that Mr Robinson acted with intent to defraud or cause loss to another person, a point that was not addressed by the Judge.
[45] Next, Ms Cull submitted that the Judge was wrong to find that the Police had proved that Mr Robinson did not have claim of right. She submitted that the Judge relied on matters which he was not entitled to when finding there was no claim of right. She said that the focus in a criminal prosecution must be at the time of the offending. She said that, in reaching his decision, the Judge relied on material that was produced by Mr Robinson at the hearing which should not have been used to determine the issue of claim of right because it was documentation that had been prepared after the event and with the benefit of legal advice.
Appeal principles
[46] Again, the Court will only allow the appeal against conviction if a miscarriage of justice has occurred.37
34 At [19].
35 At [43]–[49].
36 At [50]–[53]
37 Criminal Procedure Act 2011, s 232.
Decision
[47] The Judge expressly referred to the requirement of s 11(3) in the judgment.38 But Ms Cull is correct that he did not expressly go on to say that Mr Robinson acted with intent to defraud or cause loss to any other person. However, I agree with Ms Wilkinson that it can be inferred from what the Judge said that he considered that Mr Robinson did act with intent to cause loss to the owners of the home block, the De’Aths. The damage that Mr Robinson caused to the driveway was significant. He destroyed a whole section, making it unusable. The De’Aths said the repair cost was $40,000. Further, when the driveway was damaged, the tenants had to move out of the property because they could no longer access it. This meant that the De’Aths also lost rental income.
[48] I turn now to the issue of claim of right. Ms Cull is right that the focus must be on the time of the offending. Some of the material the Judge referred to was not available at the time of the offending and therefore should not have been taken into account. However, most of the matters that were relied upon by the Judge were matters that Mr Robinson was aware of at the time of the offending. The legal advice Mr Robinson referred to in his evidence that he received after the offending was mentioned by the Judge, but it was only one of the factors that led to his decision. I agree with Ms Wilkinson that, even without this, the other material relied upon by the Judge was more than sufficient for him to reach his conclusion.
[49]The other material that the Judge relied on and referred to in his judgment was:
(a)Email correspondence between Mr Robinson and Mr De’Ath prior to the damage to the driveway. In this, Mr De’Ath refers to two emails from his lawyer regarding the legality of the easement.39
(b)Advice that the Police gave to Mr Robinson prior to the damage. Mr Robinson and Senior Sergeant Mohammed Adiq both gave
38 New Zealand Police v Robinson, above n 4, at [14].
39 At [51(a)].
evidence about this. The Police attended the quarry following a call from the tenants of the home block.40
[50] The Judge also relied on Mr Robinson’s longstanding background in owning and managing properties and businesses.41 In my view, it was reasonable for the Judge to have regard to this.
[51] The Judge was also influenced by evidence showing that the place in which the metal base of the driveway was outside the easement was in a completely different area to where Mr Robinson damaged the driveway. There was no correlation between Mr Robinson’s belief that the driveway was encroaching and the damage he caused.42
[52] The Judge saw Mr Robinson give evidence. He was therefore in the best position to judge whether Mr Robinson had a genuine belief. I am satisfied that the evidence supports the Judge’s conclusion. I can see no basis for overturning that conclusion.
[53] For these reasons, I do not consider a miscarriage of justice has occurred. I dismiss the appeal against the wilful damage conviction.
Sentence
[54]Judge McDonald sentenced Mr Robinson in relation to both convictions.43
[55] In relation to the theft of livestock charge, Mr Robinson was sentenced to one month of community detention and ordered to pay $2,000 reparation for actual and emotional harm caused to the complainants.44 In relation to the wilful damage charge, he was sentenced to three months’ community detention. The sentences were cumulative. In total, Mr Robinson was sentenced to four months’ community detention.45
40 At [51(b)].
41 At [51(d)]
42 At [50].
43 New Zealand Police v Robinson, above n 5.
44 At [18].
45 At [18].
Appeal principles
[56]The Court must allow Mr Robinson’s appeal if satisfied that:46
(a)for any reason, there is a material error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[57] In any other case, the appeal must be dismissed.47 The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.48
[58] It is appropriate for the appellate court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.49 The focus is not on the process by which the sentence was reached, but on the correctness of the end result. In making this assessment, the Court does not interfere with the legitimate exercise of judicial discretion or indulge in mere tinkering with the sentence.50
Decision
[59] Ms Cull submits that the sentences imposed were manifestly excessive. She submits that marking the behaviour with a conviction would be sufficient to mark the gravity of the offending. But I disagree. In my view, four months’ community detention was justified.
[60] Ms Cull also argued that the curfew imposed by the Judge should be adjusted. The recommendation in the pre-sentence report was that the curfew be from 8 pm to 5.30 am. But the Judge imposed a curfew of 7 pm to 7 am. Mr Robinson has a long drive from his curfew address to the quarry. The curfew ending at 7 am means that
46 Criminal Procedure Act, s 250(2).
47 Section 250(3).
48 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
49 At [32]–[35].
50 Ngawati v New Zealand Police [2022] NZHC 2156 at [6].
Mr Robinson arrives at the quarry well after its normal opening time of 7 am. He says this is causing significant harm to the business.
[61] I accept that the curfew imposed is inconvenient for the operation of Mr Robinson’s business. However, to vary the curfew period would be mere tinkering. Mr Robinson could consider applying to the District Court for a variation of the curfew period under s 69I of the Sentencing Act 2002.
[62] I do not consider the sentence imposed was manifestly excessive. I dismiss the appeal against sentence.
Result
[63]The appeal against conviction and sentence is dismissed.
Blanchard J
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