Rudolph v Police

[2025] NZHC 1893

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2025-409-136

[2025] NZHC 1893

BETWEEN

HARLEY REWI PUHI-NOA RUDOLPH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

10 July 2025

Appearances:

J Tupaea for Appellant

K N Stitely for Respondent

Judgment:

11 July 2025

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 11 July 2025 at 10 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

RUDOLPH v NEW ZEALAND POLICE [2025] NZHC 1893 [11 July 2025]

Introduction

[1]    Harley Rudolph pleaded guilty to a raft of offences, being two charges of possession of offensive weapons,1 two charges of theft (under $500),2 two charges of displaying other than an authorised registration,3 and one charge each of behaving threateningly4 and failure to answer police bail.5 On 5 June 2025, Mr Rudolph was sentenced by Judge Hunt to 27 months’ imprisonment and to pay reparations of

$307.42.6

[2]    He now appeals this decision on the ground the Judge failed to apply the totality principle, leading to a manifestly excessive sentence.

Facts

[3]    On 31 October 2024 the police went to the suburb of Mairehau to investigate reports of gang members presenting axes and behaving in an intimidating manner. The appellant who was wearing gang regalia, was found to have a tomahawk under the driver’s seat in his vehicle. It was about 30 cm long and had a retention strap on its handle.

[4]    On 12 November 2024, the appellant presented a 34-centimetre knife to the victim and chased her into her property. The appellant was wearing a red jersey with “Mighty” written on the front and back of it and a black motorcycle helmet.

[5]    The theft and displaying an incorrect licence plate offending involved the appellant placing incorrect licence plates over his registration plate and stealing petrol from petrol stations. The value of fuel taken was $148.91 on 6 November 2024 and

$158.52 on 8 November 2024.

1      Crimes Act 1961, s 202A(4); maximum penalty three years’ imprisonment.

2      Sections 219 and 223(d); maximum penalty three months’ imprisonment.

3      Land Transport (Motor Vehicle Registration and Licensing) Regulations 2011, reg 85(1)(a); maximum penalty $1000 fine.

4      Summary Offences Act 1981, s 21(1)(a); maximum penalty three months’ imprisonment.

5      Bail Act 2000, s 24; maximum penalty three months’ imprisonment.

6      Police v Rudolph [2025] NZDC 12867.

Victim Impact Statement

[6]    The victim feels concerned for her safety. She said it made her feel like she cannot live in her own home. She had only been there a couple of weeks and she now wants to move out because she feels unsafe.

District Court decision

[7]    The Judge adopted a 12-month starting point for the tomahawk offending. A combined starting point of 14 months was then taken for the possession of the knife and threatening behaviour charges which the Judge noted was a separate event from the tomahawk offending. A month was added for each theft, resulting in an adjusted starting point of 28 months. The Judge convicted and discharged the appellant on the charges of breach of bail and displaying unauthorised registration plates.

[8]    The starting point was uplifted by four months to reflect the appellant’s extensive history of prior offending and his offending while on sentence. A 15 per cent deduction was then given for guilty pleas. The end sentence was 27 months, and the Judge recorded that when he stepped back and reflected on totality, he was satisfied that adequately reflected the situation and no further adjustment was required.

[9]    The appellant’s existing sentence of intensive supervision was cancelled and a two-month sentence of imprisonment was imposed which was to run concurrently. The appellant was ordered to pay reparation of $307.42 and the fines were remitted.

Principles on appeal

[10]   Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.7 As the Court of Appeal observed in Tutakangahau v R, with reference to the lower court’s decision, a “court will not intervene where the sentence is within the range that can

7      Criminal Procedure Act 2011, ss 250(2) and 250(3).

properly be justified by accepted sentencing principles”.8 It is appropriate for this 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.9

Submissions

Appellant’s submissions

[11]   Mr Tupaea, for the appellant, notes the lead charges (presenting a knife and threatening) incurred a starting point of 14 months which was uplifted by 12 months for the tomahawk charge which was possessory only. This led to 26 months for both tranches of offending. Mr Tupaea submits both tranches present different circumstances in offending, but that the possessory charges were given effectively the same starting point of 12 months, with a two-month uplift for the charge of threatening. He submits the tomahawk offending was far less serious than the knife offending and a reduction ought to have applied to take into account the gravity of the overall offending.

[12]   Should the sentence be reduced to 24 months or less, Mr Tupaea asks for leave to be given to apply for home detention so that suitable time is given to locate an appropriate address.

Respondent’s submissions

[13]   Ms Stitely, for the respondent, submits the starting points adopted were available to the Judge. She relies on the following cases to support the starting point on the charge of possessing an offensive weapon:

(a)Hughes v Police:10 The appellant was convicted of one charge of possessing an offensive weapon, several driving charges and resisting police. The possession charge related to a stun gun or taser, a carbon dioxide powered air pistol and two knives being located in the appellant’s vehicle when searched.  The search took place after police

8      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

9      Ripia v R [2011] NZCA 101 at [15].

10     Hughes v Police [2018] NZHC 1807.

received information that the appellant was intending on using weapons to threaten or harm members of a gang that had been harassing him. On appeal, Venning J held that it was open to the Judge to take a starting point of between 10- and 12-months’ imprisonment.

(b)Vakatini v R:11 The appellant was convicted of possession of an offensive weapon, behaving threateningly and wilful damage. The appellant either lost or had his Mongrel Mob patch removed. He went to the complainant’s address. He confronted the complainant and chased him with a spade before producing two knives and waving them around in  a  threatening  manner.  On  appeal,  a  starting  point  of  12 months’ imprisonment was upheld.

(c)Taylor v R:12 The appellant was convicted of one charge of intimidation, one charge of wilful damage, and one charge of possessing an offensive weapon. The appellant and the victim lived in adjoining flats. The appellant got angry at the victim when at her flat and demanded she pay back money to an associate of theirs. The appellant went back to his flat, retrieved a crossbow and returned. He pointed it at the victim and threatened to shoot her with it. The charge of wilful damage occurred on a different date. On appeal, a starting point of 16 months’ imprisonment for the possessing an offensive weapon and the intimidation charges was held to be within range.

[14]   Ms Stitely submits the adjusted starting point of 28 months’ imprisonment was not “wholly out of proportion to the gravity of the overall offending”. There were two unrelated incidents where the appellant possessed different offensive weapons associated with threatening circumstances. She says that any appropriate adjustment would amount to tinkering. Ms Stitely also refers to the Judges’ explicit consideration of totality.

11     Vakatini v R [2019] NZHC 3331.

12     Taylor v Police [2023] NZHC 568.

Analysis

Starting point

[15]   With reference to Hughes, Vakatini and Taylor, as well as to Grafton v Police,13 where a nine-month starting point was upheld on appeal for possession of a craft knife, I am satisfied the starting points for each of the charges of possessing offensive weapons were available, albeit for the tomahawk charge, it was at the upper end of the range.

[16]   In respect of the tomahawk charge which incurred a 12-month starting point, this has some similarity to Hughes. As in Hughes, it took place in the context of a police complaint of threatening behaviour, the appellant was wearing gang insignia, and the weapon was located in the appellant’s vehicle. I accept the respondent’s submission that there were more weapons located in Hughes. However, the seriousness of the tomahawk as a weapon and the context in which it was found justifies a similar starting point.

[17]   The knife charges incurred a 14-month starting point. As in Taylor, where a 16-month starting point was adopted, there was a direct confrontation with the victim that involving chasing the victim on her property. The 14-month starting point here fairly reflects the totality of the offending involving the possession and presentation of the knife.

Totality

[18]   Turning to the totality consideration, Mr Tupaea acknowledges that an adjustment for totality is not automatic, and emphasises the test from Te Kani v R, which says that no reduction is required where the end sentence achieved by aggregating the individually appropriate sentences is not “wholly out of proportion to the gravity of the overall offending”.14 The Judge here expressly addressed that issue and concluded that the end sentence did adequately reflect the totality of the offending

13     Grafton v Police HC Christchurch CRI-2009-409-56, 25 June 2009.

14     Te Kani v R [2025] NZHC 423 at [49].

and did not require further adjustment. At issue is whether he was right in that assessment.

[19]   While it appears likely the Judge adopted the same starting point on both charges,15 each possession charge was serious in its own right and justified the starting point of 12 months, being a third of the maximum sentence. In both cases the weapon was potentially lethal and was either readily accessible to Mr Rudolph or was being carried by him. Furthermore, the offending in each case was unrelated in both time and circumstance. It was therefore open to him to impose cumulative sentences. The Judge then imposed only a modest uplift on the threatening charge which fairly reflected the totality principle in respect of the offending on that day.

[20]   As Ms Stitely points out, the Judge also calculated the end sentence by adjusting for aggravating features before mitigating factors. This had the impact of reducing the sentence in the appellant’s favour by an additional month compared with the sentence calculated using a standard Moses approach.16 Furthermore, the more minor offending and resentencing was addressed by imposing concurrent sentences or by convicting and discharging the appellant, which also reflected totality considerations.

[21]   Given this, I do not consider the Judge erred by not reducing the sentence further when considering totality.

Result

[22]The appeal against sentence is dismissed.

Solicitors:
Crown Solicitor, Christchurch

Copy to:

J Tupaea, Barrister, Christchurch

15     The Judge did not expressly say this, but there is no reason to think he saw the possession of the tomahawk as more serious than the possession of a knife.

16     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.