Smythe v Police
[2025] NZHC 3544
•20 November 2025
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2025-443-000048
[2025] NZHC 3544
BETWEEN CHAZ GORDON SMYTHE
Appellant
AND
THE NEW ZEALAND POLICE
Respondent
Hearing: 20 November 2025 Appearances:
P M Keegan KC for Appellant I P L Barfucci for Respondent
Judgment:
20 November 2025
JUDGMENT OF CHURCHMAN J
[Sentence appeal]
Introduction
[1] On 26 August 2026, Judge Hikaka sentenced the appellant to four years’ imprisonment and reparation of $2,800 for the following charges:
(a)theft from a dwelling over $1,000;1
(b)wounding with intent to injure;2
(c)two counts of unlawfully taking a motorcycle;3
(d)receiving property over $1,000;4
1 Crimes Act 1961, ss 219 and 223(b) — maximum penalty of seven years’ imprisonment.
2 Section 188(2) — maximum penalty of seven years’ imprisonment.
3 Section 226(1) — maximum penalty of seven years’ imprisonment.
4 Sections 246 and 247(a) — maximum penalty of seven years’ imprisonment.
SMYTHE v THE NEW ZEALAND POLICE [2025] NZHC 3544 [20 November 2025]
(e)two counts of unlawfully getting upon a motorcycle;5
(f)two counts of burglary ($500 – $5,000) by night;6
(g)burglary ($500 – $5,000) by day;7
(h)attempting to unlawfully take a motor vehicle;8 and
(i)theft of car.9
[2] The appellant now appeals his sentence on the grounds that the Judge failed to apply an adequate reduction for personal mitigating factors and an early plea of guilty.
The offending
Theft in a dwelling and wounding with intent to injure
[3] On 25 January 2025, the appellant arrived at the victim’s address unannounced. The victim told the appellant that he was expecting guests and told him to return that afternoon.
[4] Prior to leaving the victim’s address, the appellant sat in the victim’s bedroom. When the victim noticed that his cell phone was missing from his bedroom, he confronted the appellant about stealing it. The cell phone was valued at $3,000. As the appellant was attempting to leave the address, the victim held onto him and the pair began to engage in a physical confrontation.
[5] The appellant was holding a knife that he had picked up from the floor. The appellant cut the victim’s left forearm causing the victim to bleed profusely. When the victim’s cell phone dropped to the ground, the victim released the appellant. The victim sustained a two cm laceration and required stitches.
5 Section 226(2) — maximum penalty of two years’ imprisonment.
6 Section 231(a) — maximum penalty of 10 years’ imprisonment.
7 Section 231(1)(a) — maximum penalty of 10 years’ imprisonment.
8 Section 226(2) — maximum penalty of two years’ imprisonment.
9 Sections 219 and 223(c) — maximum penalty of one year’s imprisonment.
[6]The appellant told the police that he acted out of self-defence.
Unlawfully taking a motorcycle
[7] On 16 April 2025, the appellant stole a moped. The appellant proceeded to steal a motor scooter the next day on 17 April 2025.
[8] On 20 April 2025, the appellant was driving the stolen scooter and stole another motorcycle and left it behind. On the same day, the appellant stole a road bike.
Unlawfully gets upon a motorcycle
[9] On 17 April 2025, the appellant stole a motorcycle and drove it. The appellant then drove the same motorcycle on 18 April 2025.
[10]On 21 April 2025, the appellant drove a stolen road bike.
Receiving property over $1,000
[11] On 19 April 2025, an unknown person gained access to the office of Kaitake Golf Club and took two laptops, valued at $3,000.
[12] At the time of the appellant’s arrest on 23 April 2025, the appellant had a black laptop bag in his possession. The laptop bag contained two laptops and charging cords which matched the serial numbers of the ones stolen from the Kaitake Golf Club. The appellant received the laptops knowing they were stolen.
Burgles ($500 – $5,000) by night
[13] Between 12 to 14 April 2025, the appellant was at the victim’s address in New Plymouth. He opened the door to a vehicle and rummaged through the belongings in the car. The appellant then entered the car shed next to the house and took an electric bike.
Attempting to unlawfully take a motor vehicle and theft regarding a car
[14] On 17 April2 2025, the victim parked her vehicle in an underground parking area. In the evening, the appellant arrived at the carpark on a scooter. He made unsuccessful attempts to gain entry through the drivers’ door. Thirty minutes later, the appellant gains entry into the drivers’ door. He smashed the ignition in an attempt to start the vehicle. When the appellant was unable to start the vehicle, he searched the vehicle and opened the boot.
[15] The appellant took a black jacket, a pair of prescription sunglasses and a pair of gumboots.
Burgles ($500 – $5,000) by day
[16] On 18 April 2025, the appellant arrived at the Western Institute of Technology on a stolen scooter. The appellant made multiple attempts to use bolt cutters to open the locked gate on the secured area where vehicles are stored. The appellant gained access to a vehicle but damaged the ignition barrel while attempting to start it. As the appellant was attempting to gain access to another vehicle, he damaged the lock and handle. The appellant took a battery in the yard and attempted to change the battery on one of the vehicles. The appellant was unsuccessful in accessing the vehicles. The cost of repairing the damage to the property was approximately $2,217.50.
[17] On 23 April, the appellant entered the grounds of Paritutu Bowling Club on a stolen scooter. He cut the padlocks off the doors of two sheds to gain access and took a battery, tyre inflator, compressor unit, battery charger, spray mask kits, coveralls, gloves, wet wipes and knives. The value of the items was approximately $1,014.56. He also caused damage to the wiring on the sprayer unit. The appellant was captured on CCTV arriving and leaving.
[18]The police located three of the stolen motor vehicles at the appellant’s address.
District Court decision
[19] The first set of offending comprised the wounding and theft charge. In respect of the wounding charge, the Judge adopted a starting point of three years and
two months’ imprisonment (38 months). The aggravating features was the presence of a knife to steal the victim’s phone, and the injury inflicted on the victim. The victim was attacked in his home, and he was 60 years old while the appellant was 36 years old.
[20] In respect of the theft charge, the Judge noted that the appellant committed a number of offences some of which were premeditated. The appellant committed 10 offences over 11 days. The impact of the offending on the victims was significant.
[21] The Judge reduced the starting point for the first set of offending to 36 months’ imprisonment to account for totality.
[22] The second set of offending comprised the burglary charges and taking of motor vehicles. The Judge noted again that the 10 offences occurred over 11 days and set a starting point of 36 months for the second set of offending.
[23] The combined starting point of the first and second set of offending was 72 months’ imprisonment. However, the Judge allowed a reduction for totality to 60 months or five years’ imprisonment.
[24] The Judge applied a five per cent reduction to reflect the appellant’s history of offending and his personal background. The Judge calculated an end sentence of 54 months’ imprisonment. The Judge then reduced the sentence to an end sentence of four years’ imprisonment without attributing that reduction to any particular matter.
Approach on appeal
[25] An appeal against sentence is an appeal against discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.10 Generally, an appellate court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.11 In most cases, a sentence appeal will turn on whether the final outcome is manifestly excessive, rather than the route taken
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
11 At [36].
by the judge in reaching that outcome.12 The Court must dismiss the appeal in any other case.13
Submissions
[26] Mr Keegan KC, for the appellant, submits that the Judge erred in failing to apply a total reduction of 30 per cent. He says the reduction ought to have comprised a five per cent for personal circumstances and a 25 per cent for an early plea of guilty. If the Judge had accounted for those matters, the final sentence would have been 42 months or three years and six months’ imprisonment.
[27] Ms Barfucci, for the respondent, accepts that the appellant was entitled to a 25 per cent reduction for the guilty plea. She points out that the Judge made an arithmetical error, and as a result, the appropriate end sentence would have been three years and six months’ imprisonment.
Analysis
[28] The Court of Appeal in Tutakangahau v R requires a Court, on appeal, to correct any arithmetical errors of the sentencing Judge, as outlined below:14
… we need to acknowledge that there may be cases, although not common, where what has gone wrong is such as to require correction albeit the sentence imposed is within range. A straightforward example is where an explicit arithmetical error has occurred and would have been corrected if it had been drawn to the attention of the sentencing judge at the time. In those circumstances, we expect the appeal court will impose the corrected sentence, giving effect to the sentencing judge's intentions.
[29] Both counsel accept that the Judge made an arithmetical error in adopting a starting point of 54 months’ imprisonment.
[30] If the Judge correctly applied the five per cent reduction to account for the appellant’s personal mitigating factors from a starting point of 60 months, he would have arrived at a figure of 57 months’ imprisonment.
12 Ripia v R [2011] NZCA 101 at [15].
13 Criminal Procedure Act 2011, s 250(3).
14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
[31]I, therefore, take 57 months’ imprisonment as the appropriate starting point.
[32] The submissions of police in the District Court accepted that the appellant was entitled to a 25 per cent reduction in light of his early guilty plea:
The offender plead guilty at case review hearing following the amendment of some charges and withdrawal of others. It is acknowledged that the offender admitted almost all of his offending when interviewed by police. For this reason it is submitted that an appropriate discount in terms of guilty plea is 25 per cent.
[33] Mr Keegan submits that the final reduction from five and a half years to four years’ imprisonment four years’ imprisonment would have been to account for the appellant’s plea. I agree with the appellant that a reduction of six months or 10 per cent is insufficient, in light of the fact that the appellant pleaded at the first reasonable opportunity.15
[34] I consider the Judge erred in failing to apply a 25 per cent reduction for the appellant’s guilty plea. Following the methodology in Moses v R, I apply a total reduction of 30 per cent to a starting point of 60 months.16 As a result, the appropriate end sentence would have been three years and six months’ imprisonment.
Conclusion
[35]The appeal is allowed.
[36] The sentence of four years’ imprisonment is quashed and a sentence of three years and six months’ imprisonment is substituted in its place.
[37]The order for reparation is unchanged.
Churchman J
15 Sentencing Act 2002, ss 9(2)(b), 9H(1) and 9I.
16 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
Solicitors:
Crown Law, New Plymouth for Respondent
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