Sau v The King

[2025] NZHC 1495

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2025-404-044

[2025] NZHC 1495

BETWEEN

MIRACLE SAU

Appellant

AND

THE KING

Respondent

Hearing:	3 June 2025
Counsel:	L D Burns for appellant R N Benic for respondent
Judgment:	9 June 2025

JUDGMENT OF JOHNSTONE J

(appeal against sentence)

This judgment was delivered by me on 9 June 2025 at 4.30 pm

Registrar/Deputy Registrar

Solicitors: MC, Auckland

SAU v R [2025] NZHC 1495 [9 June 2025]

[1]                   Miracle Sau pleaded guilty to charges alleging that, together with two associates, he committed offences of aggravated burglary,1 assault with a weapon (x2),2 and assault on a child.3 And he was  sentenced  alongside  them  in  the  District Court.

[2]                  Mr Sau was sentenced to serve 46 months’ imprisonment. His co-offenders, Emmanuel Pritchard and Johel Mataoa Vui were sentenced to 36 months’ imprisonment.

[3]                  Mr Sau appeals against the sentence imposed on him. He does not complain about the sentencing calculations — the notional starting point and the adjustments for his personal circumstances — adopted in respect of him individually. But he says his sentencing outcome was unjustifiably disparate to the sentencing outcomes for Mr Pritchard and Mr Vui.

[4]                  I must allow the appeal if satisfied that for any reason there is an error in the sentence imposed on Mr Sau, and a different sentence should be imposed.4

The offending and the sentences

[5]                  Late one evening in January 2024, Mr Sau, Mr Pritchard and Mr Vui arrived at rental accommodation occupied by a couple and their three-year-old son in Epsom, Auckland. They were wearing black masks over their faces. Mr Sau was armed with a machete, Mr Vui with a kilikiti bat. They smashed their way through the glass pane of the front door, gaining entry. The family was struck repeatedly with the bat as they cowered on a bed, before the three offenders fled. Mr Sau explained to the pre-sentence report writer that a family member had promised him $1,000 if he gave the father “a good hiding”.

1      Crimes Act 1961, s 232(1)(a). Maximum penalty: five years’ imprisonment.

2      Crimes Act 1961, s 202C(1)(a). Maximum penalty: five years’ imprisonment.

3      Crimes Act 1961, s 194(a). Maximum penalty: two years’ imprisonment.

4      Criminal Procedure Act 2011, s 250.

[6]                  Assessing the gravity of the offences committed, the sentencing Judge adopted a starting point of seven years’ imprisonment. The Judge then turned to the offenders’ personal circumstances.

[7]                  Recognising that each had pleaded guilty, the Judge started by identifying a uniform 20 per cent reduction for that factor.

[8]                  Turning to the offenders’ relative youth and previous good character, the Judge applied reductions as follows:

(a)15 per cent for Mr Sau, aged 21, and with minor previous convictions (for operating a vehicle carelessly and unlawfully interfering with a motor vehicle);

(b)15 per cent for Mr Pritchard, aged 22, and with a conviction for driving while suspended or revoked; and

(c)20 per cent for Mr Vui, aged 19 and without previous convictions.

[9]                  The Judge then addressed the offenders’ individual backgrounds and responses to the offending:

(a)Mr Pritchard grew up in a large South Auckland family. However, his mother died two years ago, and his family has since fragmented. The Judge accepted that Mr Pritchard expressed genuine remorse following his offending, and taking into account his background of general deprivation, identified a combined further reduction of 20 per cent.

(b)The Judge considered Mr Vui’s remorse to be more equivocal, but noted that Mr Vui had described feeling deeply sorry for the victims, and had engaged in some rehabilitation. The Judge stated a combined further reduction of 15 per cent.

(c)Turning to Mr Sau, the Judge noted he expressed “barely discernible remorse” during pre-sentence interviewing, the report writer describing

Mr Sau’s focus on how his bail conditions had limited his ability to see his grandmother. And the Judge reiterated that Mr Sau admitted being “the one who really organised this ‘hit’”. These matters led to a “global” reduction of 40 per cent, implying a combined reduction relating to Mr Sau’s background, and to his response to the offending, of five per cent. This reduction was “not as high as the others given the differences, especially in [Mr Sau’s] lack of remorse”.

[10]              Each offender received a further one-month reduction, to account for time on restrictive bail conditions.

[11]              Overall, the differences outlined above resulted in Mr Sau receiving a 46-month prison sentence, and Mr Pritchard and Mr Vui receiving 36-month prison sentences.

Principles

[12]              Under s 8 of the Sentencing Act 2002, sentencing courts must take into account the general desirability of consistency when dealing with similar offenders committing similar offences in similar circumstances. The fact that one of two offenders charged with the same offence received a shorter sentence is not of itself a sufficient basis for interfering with the longer sentence passed on the other. The whole of the surrounding circumstances and the situation of the offender have to be taken into account. Appellate courts will interfere, however, when the disparity is “unjustifiable and gross”.5

Is the disparity between the sentences unjustifiable and gross?

[13]              Compared to Mr Sau’s global reduction of 40 per cent, both Mr Pritchard and Mr Vui received reductions of 55 per cent. Mr Pritchard’s genuine remorse, and his recent family misfortune, received generous recognition. So did Mr Vui’s youth, his “equivocal” remorse and a degree of rehabilitative effort. The Judge viewed these

5      R v Lawson [1982] 2 NZLR 219 (CA) at 222, citing R v Rameka [1973] 2 NZLR 592 (CA).

factors as more deserving in the case of Mr Pritchard and Mr Vui than in the case of Mr Sau, expressly noting Mr Sau’s lack of remorse.

[14]              A distinction drawn purely between co-offenders’ respective displays of remorse, at the level of 15 per cent of a sentence starting point of seven years’ imprisonment (so, in absolute terms, 12.5 months), would be both substantial and unusual. And I consider it would approach the level of unjustifiable disparity. But in this case, remorse was but the primary reason for the different reductions.

[15]              In addition to these matters, the Judge recognised, at the stage of considering personal circumstances, that Mr Sau had been the organiser of the offending. While the Judge might have recognised this distinguishing feature when considering the nature of the offending, it could also fairly be recognised as justifying the drawing of a distinction at this next stage of sentencing. A higher sentence in Mr Sau’s case would tend better to serve the sentencing purposes of denunciation, deterrence and accountability.

[16]                   In my view, therefore, the overall differences between Mr Sau’s sentence and the sentences imposed on his co-offenders are neither unjustifiable, nor gross. Due consideration was given to gravity of the offending, and to the personal circumstances of each of the offenders. Mr Sau has not succeeded in identifying an error in the sentencing Judge’s approach.

Result

[17]Mr Sau’s appeal is dismissed.

Johnstone J