Tahuaroa v The King
[2025] NZHC 1836
•4 July 2025
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CRI-2025-406-005 [2025] NZHC 1836
BETWEEN KEVIN TAHUAROA
Appellant
AND THE KING
Respondent
Hearing: 2 July 2025
Appearances: E F Mahoney for Appellant (on instructions from R A Harrison) D W Baxter for Respondent
Judgment: 4 July 2025
JUDGMENT OF GWYN J
[Appeal against refusal to grant home detention]
Introduction
[1] On 24 March 2025,1 the appellant was sentenced to 16 months’ imprisonment on one charge of burglary.2
[2] The appellant now appeals his sentence on the basis that the District Court Judge erred in failing to exercise his discretion to commute the sentence to one of home detention.
The offending
[3] On 24 August 2024, the appellant was employed by Mighty Mix Dog Food in Blenheim. He was given permission by his supervisor to use his work vehicle to take
1 Police v Tahuaroa [2025] NZDC 6818 [District Court decision].
2 Crimes Act 1961, s 231; maximum penalty of 10 years’ imprisonment.
TAHUAROA v R [2025] NZHC 1836
pallets to his home and then return the vehicle to work the next day. He did not have permission to use it for anything else.
[4] At about 1.50 am on 25 August, the appellant was captured on CCTV at an address in western Blenheim with the work vehicle. The appellant and the victim who lived there were not known to each other. The appellant climbed multiple fences and entered a closed shed. He cut a padlock and took the following items from the shed:
(a)a motorbike valued at $2,995.00 and property of the victim,
(b)a chainsaw valued at $1,800.00 and property of the victim, and
(c)a Bahco socket set valued at $285.00 and property of the victim.
[5]The appellant then left the address, leaving the roller door to the shed open.
[6] In explanation, the appellant said that somebody else must have taken the vehicle to commit the burglary, because he had left it in his driveway with the keys in the ignition. However, the burglary of property worth $5,080 was captured on camera.
Previous convictions
[7] The appellant has 39 previous convictions, largely for drug offending, dishonesty offending and non-compliance with conditions. Of the 15 dishonesty convictions, six are for burglary. This includes convictions for burglary in April 2021, December 2021, July 2022, December 2022 and January 2023.
[8] The appellant was sentenced for the majority of his previous convictions to terms of home detention. At the time of the offending, the appellant was still on sentence on post-detention conditions after a sentence of home detention, which had been imposed on 11 September 2023 for eleven offences committed between April 2021 and May 2023, including five charges of burglary and three of shoplifting.
PAC report
[9] A Provision of Advice to Courts (PAC) report was prepared, dated 28 February 2025. The PAC report noted that the appellant had relapsed into criminal behaviour, referring to it as recidivist. It recorded that he was not sure why he had done so, denying that his offending was driven by any addiction issues or a particular need for money. Despite the effort needed to access the items, the appellant said his offending was not pre-planned.
[10] The report stated the appellant’s advice that he remained employed by Mighty Mix in a second-in-charge role, working from 3.00 am to 2.00 pm five days per week, although he had lost his company vehicle privileges. However, the report writer was not able to contact his employer.
[11] The report recommended for the appellant to undertake an assessment and a rehabilitative programme to provide him with insight into his offending and tools to make positive behavioural changes.
[12] The report assessed home detention to be the most appropriate community- based sentence, given the serious and recidivist nature of the offending. The appellant had proposed his address in Blenheim, with his partner and their two children, which he had recently been able to move into after five years of temporary or transitional housing. He had previously served the final part of his previous home detention sentence at that address. The partner’s history of drug and dishonesty offending raised some concern as to her suitability as a prosocial support person, but Police advised they had no specific concerns regarding the proposed address. For these reasons and the appellant’s consent to electronic monitoring, home detention at that address was assessed as technically feasible.
[13] However, the report writer recommended a sentence of imprisonment be imposed, rather than home detention:
[The appellant’s] previous sentence of home detention did not deter him from reoffending in a similar manner. [His] reoffending is recidivist in nature. The current offending appears planned rather than opportunistic and [he] breached the trust of his employer. [His] expression of remorse appears to be linked to his own current legal situation rather than any remorse towards the victims.
Imprisonment with conditions of release is assessed to be the most appropriate sentencing outcome and is therefore the sentencing recommendation.
District Court decision
[14] Judge Snell acknowledged the above material. He also referred to a victim impact statement detailing the significant financial consequences of the burglary on the victim family. He also acknowledged defence counsel’s submissions that Mr Tahuaroa had a prospect of employment, that home detention was more appropriate, and that a starting point of 12 to 18 months’ imprisonment would be appropriate.
[15] The Judge noted that all of the factors in s 7 of the Sentencing Act 2002 applied to Mr Tahuaroa, including:
(a)the need to hold him accountable, to promote within him a sense of responsibility, and to uphold the interests of the victim of the offence (a family who have been stolen from and will go without),3
(b)the need to provide reparation, which was awarded,4
(c)the need to denounce burglaries, and to provide deterrence to those who complete burglaries, even though rural burglaries of this nature have less risk of harm than residential ones,5 and
(d)the need to protect the community from Mr Tahuaroa and to assist in his rehabilitation and reintegration.6
[16] The Judge also considered that many of the s 8 factors applied, but especially the overall gravity of the offending, the need to sentence Mr Tahuaroa consistently with appropriate sentencing levels for similar offending, and the need to impose the least restrictive outcome that is appropriate in all the circumstances.7
3 District Court decision, above n 1, at [14]; and Sentencing Act 2002, s 7(1)(a)–(c).
4 At [15]; and s 7(1)(d).
5 At [15]; and s 7(1)(e)–(f).
6 At [15]; and s 7(1)(g)–(h).
7 At [16]; and s 8(1)(a), (e) and (g).
[17]Taking those factors into account, the Judge:
(a)adopted a starting point of 16 months’ imprisonment;8
(b)applied an uplift of four months to take into account Mr Tahuaroa’s history of dishonesty offending and that he was on post-detention conditions at the time;9
(c)applied a 25 per cent discount for a guilty plea;10 and
(d)refused to apply a further discount for remorse or his prospects of employment or that he has done well for his family.11
[18]Judge Snell then turned to the issue of home detention:
[23] … When I assess this matter, I look at what home detention did and whether that was an active deterrent for you, given that you have had home detention so recently. It was no deterrent to you at all. You have gone out virtually straight away, while you are still serving post-detention conditions, and committed another burglary which was a very deliberate and planned burglary which resulted in significant harm as detailed in the victim impact statements.
[24] I consider that, as the report writer did as well, that home detention simply is not an appropriate deterrent now. You have had the benefit of that sentence and you should not hide behind your family or your children when it is you that needs to be held accountable for your actions, and that is what is going to happen today.
[19]The appellant was therefore sentenced to 16 months’ imprisonment.
Approach on appeal
[20] 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.12 Generally, an appellate court “will not intervene where the sentence is within the range that can properly be
8 At [17].
9 At [19]; and s 9(1)(c) and (j).
10 At [20]; and s 9(2)(b).
11 At [21]–[22]; and s 9(2)(f) and (4)(a).
12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
justified by accepted sentencing principles”.13 In most cases, a sentence appeal will turn on whether the final outcome is manifestly excessive, rather than the route taken by the Judge in reaching that outcome.14 The Court must dismiss the appeal in any other case.15
[21] An order declining leave to apply for home detention is treated as a sentence for the purposes of appeals under the Criminal Procedure Act 2011.16 The Court of Appeal confirmed in Palmer v R that the same standard of review on appeal applies to decisions not to commute imprisonment to home detention as it does to any other sentence.17 The Court went on to note that the decision often calls for a difficult exercise of judgement by the sentencing judge, and therefore, “… the margin of appreciation extended to sentencing judges is usually significant”.18
Submissions
For the appellant
[22] Ms Mahoney, for the appellant, submits that the Judge erred in failing to exercise his discretion to commute the sentence to one of home detention. She takes no issue with the approach taken in determining the starting point, uplifts or discount. However, she submits that excessive weight was given to the need for the sentence to be a deterrent for Mr Tahuaroa and that insufficient weight was given to his stable address and employment.
[23] Counsel notes that s 16(2)(c) of the Sentencing Act says that a sentence of imprisonment should not be imposed unless the Court is satisfied no other sentence would be consistent with the application of the principles in s 8 to the particular case. One of those principles is to impose the least restrictive outcome that is appropriate in the circumstances.19
13 At [36].
14 Ripia v R [2011] NZCA 101 at [15].
15 Criminal Procedure Act 2011, s 250(3).
16 Sentencing Act, s 80J.
17 Palmer v R [2016] NZCA 541 at [18].
18 At [19].
19 Sentencing Act, s 8(1)(g); and R v D (CA253/2008) [2008] NZCA 254.
[24] Counsel further relies on the Court of Appeal’s judgment in Osman v R, which noted that the provisions of the Sentencing Act do not accord greater weight to factors such as denunciation or deterrence than the personal circumstances of the offender.20 Ms Mahoney submits that the Judge gave insufficient weight to the appellant’s personal circumstances, namely:
(a)coming into stable accommodation with his partner and children in a Kainga Ora home, after a five-year period of housing instability, often featuring temporary accommodation. This new accommodation was therefore a change of circumstances from his last sentence of home detention;
(b)his employment, which was regarded merely as a “prospect” by the Judge; and
(c)that the pre-sentence report considered special conditions of undertaking a drug and alcohol assessment and assessment for a further rehabilitative programme, when he had not had a sentence with any rehabilitative aspect since 2012. His prospects for rehabilitation and support for his reintegration were not recognised by the Judge.
[25] Counsel submits that too much weight was placed on whether the appellant’s previous sentence was a deterrent, and insufficient weight was given to the other purposes and principles of sentencing, when they should have all been considered with equal weight.
[26] Ms Mahoney submits that, accordingly, the least restrictive outcome was not imposed in this case, and the purposes and principles of sentencing could have been achieved through a sentence of home detention.
20 Osman v R [2010] NZCA 199.
For the respondent
[27] Mr Baxter, for the respondent, submits that there has been no error and the appeal should be dismissed.
[28] Counsel notes that a decision on whether to convert a sentence of imprisonment to one of home detention is an exercise of discretion.21 He emphasises that the decision about whether home detention will meet the purposes and principles of sentencing in a particular case is a strictly evaluative exercise.22 He submits that an appeal against that discretion will only succeed where the sentencing court has erred in principle, by failing to take into account a relevant consideration or by taking into account an irrelevant consideration.23
[29] Mr Baxter submits that no such error has been made. He says that the Judge sufficiently took the appellant’s personal circumstances into account. These included his employment and family circumstances, but also that he was being sentenced for burglary offending that occurred while he was on post-detention conditions for previous burglary offending.
[30] Counsel submits that the Judge was best placed to evaluate those circumstances and determine the appropriate sentencing response. In those circumstances, the Judge was not satisfied that a sentence of home detention would meet the need for accountability or for deterrence, and accordingly the only appropriate sentencing response was imprisonment.
Analysis
[31] Since a decision on whether to convert a sentence of imprisonment to one of home detention is an exercise of discretion, the appellant must point to an identifiable error in the Judge’s reasoning. For the reasons listed below, I do not consider that such an identifiable error exists.
21 Smit v Police [2016] NZHC 2518 at [16].
22 R v D, above n 19, at [66].
23 Singh v R [2020] NZCA 487 at [37].
[32] The appellant submits that the Judge erred in his weighting of the s 7 Sentencing Act factors and did not have adequate regard to the s 8(g) requirement that the court must impose the least restrictive outcome that is appropriate in the circumstances.
[33] As the Court of Appeal observed in Osman v R,24 what is required is a case specific, two stage evaluation of the merits of home detention. In that case the Court cited with approval the dissenting judgment of the then President of the Court of Appeal, William Young P, in Vhavha.25 In particular the Court endorsed the statement that “There is nothing to suggest a presumption for or against such commutation, either generally or in respect of particular types of offence”.26
[34] On the face of the decision, when the Judge came to the second stage of his assessment, considering home detention, he had regard only to the issue of deterrence.27
[35] However, although the Judge did not specifically record other relevant factors under this heading, I am satisfied that his earlier consideration of those factors at the first stage of the sentencing exercise was ultimately adequate.
[36] I consider first the relevance of Mr Tahuaroa’s employment status. The written submission for the appellant was that the Judge erred by “not giv[ing] enough weight to [the appellant’s] employment as being an active factor in support of home detention, rather consider[ing] it to be merely a prospect”. In oral submissions, Ms Mahoney acknowledged that Mr Tahuaroa was not in fact in employment at the time of sentencing. That acknowledgement is consistent with both the PAC report and counsel’s submissions for the appellant ahead of the sentencing. The PAC report noted that although the appellant claimed to continue to work at Mighty Mix, they were unable to contact his employer. Mr Harrison’s submissions noted that:
24 Osman v R, above n 20, at [22].
25 R v Vhavha [2009] NZCA 588 at [40].
26 At [29], cited at [20] of Osman v R.
27 District Court decision, above n 1, at [23]–[24].
As a result of his actions, he lost his employment with Mighty Mix. He is trying to gain employment driving harvesters through the grape harvest and has the appropriate licences to enable him to do that.
[37] It is therefore clear that the Judge did not err in referring to the appellant as having “prospects of employment”.
[38] I do not give much weight to the second submission advanced by the appellant, that his new Kainga Ora address provided a change of circumstances from the last sentence of home detention and should have been considered by the Judge in deciding whether to commute the sentence of imprisonment to home detention. It appears from the PAC report before the District Court that the appellant served the final part of that sentence at that address, and this offending took place while he was living at that address.
[39] I accept that the Judge did not expressly take into account that a rehabilitative programme may have been available to the appellant at an earlier point, if he had been granted home detention. However, I note that the PAC report recommended such a programme as a release condition, and the Judge adopted it as such.28
[40] Overall, I am not persuaded that an express reference by the Judge to considering and weighing of those factors in the specific context of home detention would have resulted in a different outcome, given my conclusions at [34]–[39] above. It is also relevant that the Judge did not accept there was genuine remorse or any compelling personal reasons which might have meant home detention was an appropriate sentence in the circumstances.
[41] For those reasons, I am not satisfied that the sentencing court erred in principle or, having regard to the decision as a whole, failed to take into account a relevant consideration or took into account an irrelevant consideration.
28 At [26].
[42]The appeal is dismissed.
Gwyn J
Solicitors:
O’Donoghue Webber, Nelson for Respondent
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