Tawhai v Police
[2025] NZHC 2302
•14 August 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2025-485-36
[2025] NZHC 2302
BETWEEN MANUEL TAWHAI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 7 August 2025 Appearances:
S Barclay for Appellant H Prasad for Respondent
Judgment:
14 August 2025
JUDGMENT OF McHERRON J
Introduction
[1] Mr Manuel Tawhai was sentenced to one year and nine months’ imprisonment in the District Court at Porirua on 28 May 2025.1 He was sentenced on a representative charge of possessing a firearm and ammunition.2 He was convicted and discharged of one charge of driving while forbidden.3
[2] Mr Tawhai appeals his sentence on the basis it is manifestly excessive. He says he should have been sentenced to home detention instead, with a further discount to reflect his rehabilitative prospects. Mr Tawhai also submits the sentence should have recognised alleged police impropriety in obtaining the evidence that was the foundation of the charge.
1 Police v Tawhai [2025] NZDC 12327 [Decision under appeal].
2 Arms Act 1983, s 45(1). Maximum penalty of four years’ imprisonment or a $5,000 fine.
3 Land Transport Act 1998, s 52(1)(c). Maximum penalty of $10,000 fine.
TAWHAI v NEW ZEALAND POLICE [2025] NZHC 2302 [14 August 2025]
Background
According to the agreed summary of facts:
(a)On 22 June 2024, Mr Tawhai was prohibited from driving by a police constable.
(b)On 11 July 2024, he was stopped by police while driving his vehicle, contrary to the prohibition.
(c)Police breath tested him and arrested him for driving while forbidden (s 52(1)(c) Land Transport Act 1998).
(d)Police seized Mr Tawhai’s belt bag.
(e)In that bag was a revolver pistol and eleven live rounds of ammunition.
[4] Mr Tawhai’s counsel’s submissions, and the evidence provided to the Court,4 suggest the situation was dynamic and complex. There is a tenable,5 but strongly disputed assertion of police impropriety, and lack of jurisdiction, in the stop and subsequent arrest of Mr Tawhai. However, such testing of the relevant evidence to support these assertions did not occur.
[5] Mr Tawhai brought a pre-trial application challenging the evidence, but this was resolved on the morning of the hearing. Counsel accepted, in submissions on sentencing, that the application of s 30 of the Evidence Act 2006 would likely have resulted in the evidence being admitted,6 and Mr Tawhai being deprived of his guilty plea discount. It was important to receive this discount to ensure Mr Tawhai qualified for a short-term sentence.
[6] On 11 April 2025, Mr Tawhai withdrew his not guilty plea, and pleaded guilty to the revised summary of facts.
4 Including victim impact statements of the Police officers, and their formal written statements.
5 See Wind v R [2024] NZHC 1907 and its discussion of the lawfulness of Land Transport Act stops similar to the stop of Mr Tawhai.
6 See Decision under appeal, above n 1, at [8].
Decision under appeal
[7] The Judge began her decision with a brief overview of the facts.7 She set a starting point of two years’ imprisonment, given the concealment of the firearm and ammunition, its location on Mr Tawhai’s body (in public), and his reason for carrying the weapon because he was worried about gang tensions.8
[8] A two month uplift was applied to reflect Mr Tawhai’s “extensive criminal history and in particular [his] previous charge for possession of a firearm”.9 A discount of 20 per cent for his guilty plea “on the basis of the resolution that has been reached” was agreed on and available.10
[9]The Judge then considered the issue of impropriety, saying:11
Ms Barclay has sought an additional discount for you because of the circumstances surrounding the execution of the search warrant and, in particular, she says that is warranted in order to recognise police impropriety. The difficulty with that is that this Court has not determined that there was any impropriety. I note it is recorded on the file that police advised when resolution was reached that there was no admission of impropriety or unlawful action on their part. In any event the second difficulty with that submission is that the senior Courts have concluded there is no other meaningful remedy for an impropriety (were it to be found) other than the exclusion of evidence. In this case your lawyer has accepted, in submissions, that it was unlikely that the evidence would have been excluded on this occasion even if an impropriety had been established given the seriousness of the charges you face.
[10] The balance of aggravating and mitigating factors included : remorse, cessation of drugs and alcohol, rehabilitative prospects, a “glowing” employer reference, public safety, and the victim impact reports of the police officers involved.12 The Judge drew the “natural inference” that Mr Tawhai was prepared to use a gun, as he had ammunition easily accessible in a public situation.13 The Judge said:14
7 The Judge erred in saying “the search warrant was executed at your home” — the evidence on appeal does not establish that. However, I do not consider this was a material error; nor was it advanced as such by counsel.
8 Decision under appeal, above n 1, at [4] and [5].
9 At [6].
10 At [7].
11 At [8].
12 The Judge properly set aside the statements to the extent they discussed circumstances around the arrest that are not the in summary of facts.
13 At [11] and [13].
14 At [12].
The law tells me that deterrence and denunciation is very important in a case of this kind. The courts have recognised that in the absence of special circumstances of [sic] possession of a firearm will normally lead to a sentence of imprisonment, especially if there is evidence to suggest it might have been contemplated [sic] use in a criminal context which I consider is present here.
[11] The District Court did not consider Mr Tawhai’s good behaviour on bail or his contribution in terms of his employment “create[d] special circumstances”.15 The Judge did not consider any reduction was warranted for the drug use and rehabilitative prospects, given her conclusion that the offending was driven by gang involvement, and there was “nothing to suggest that drugs and alcohol were involved” in the offending.16
[12] Accordingly, a sentence of one year and nine months’ imprisonment was imposed, with an order for destruction of the firearm and ammunition.17
Grounds of appeal
[13]Mr Tawhai’s sentence appeal is brought on three grounds:
(a)the Judge erred by declining to consider or discount for the unlawful stop which resulted in the charge;
(b)the Judge was wrong to decline to give appropriate discounts for Mr Tawhai’s cessation of use of illicit substances and his rehabilitative prospects; and
(c)the Judge failed to properly weigh the merits of home detention as an end sentence.
[14] No challenge is made to the starting point of two years, the uplift of two months for previous convictions, or the 20 per cent discount for the guilty plea.
15 At [14].
16 At [15].
17 At [16].
How should the Court on appeal approach consideration of, or discount for, the alleged police impropriety?
[15] Considerable care is “obviously required” if a judge is minded to depart from the facts both parties have formally committed to.18 The approach on appeal to facts outside the agreed summary is made clear in the Court of Appeal decision of Pokai:19
… counsel for [the defendant] sought to rely upon factual material that did not form part of the summary of facts. This included material that counsel had received from the police during the disclosure process. We do not propose to have regard to that material for present purposes. This Court has made it clear in cases such as R v Apostolakis and R v Whiunui that, in cases where counsel have reached agreement regarding the factual summary on which a guilty plea is to be entered, sentencing must proceed on the basis of that summary.20 Any appeal against sentence must similarly be decided having regard to the facts contained [in] the summary.
(emphasis added)
[16] This is not a situation where the sentencing or appellate judge is entitled to draw inferences from the summary, grounded on established primary facts.21 Rather, for this Court to reach a finding that the stop and search was unlawful would require departure from the agreed facts. It would undermine certainty and predictability if a sentencing appeal court revisited the events underpinning the charges, after a summary of facts had been agreed on by the police and the defendant and then a guilty plea was entered on the basis of those agreed facts.22
[17]As the Court of Appeal said in Kinghorn:23
To deal with such a critical contested fact at a sentencing hearing, rather than a disputed facts hearing, is inappropriate. It raises a danger that the usual criminal law safeguards will not be met.
My approach
[18] Mr Tawhai is effectively asking, at sentence, for a judicial determination that the circumstances of the stop and the arrest were unlawful and improper. Despite the
18 McMillan v R [2022] NZCA 128 (CA505/2021) at [123].
19 Pokai v R [2014] NZCA 356 at [30].
20 R v Apostolakis (1997) 14 CRNZ 492 (CA); R v Whiunui CA212/05, 9 November 2005 at [14].
21 R v Kinghorn [2014] NZCA 168 at [20]–[22] and [31]. Pokai, above n 19, at [31].
22 See R (CA 628/2018) v R [2019] NZCA 135 at [33].
23 Kinghorn, above n 21, at [21].
persuasiveness and ingenuity of the argument made on his behalf, I am not prepared to make such a finding for three reasons.
[19] First, opportunities for Mr Tawhai to establish a breach of his rights were not taken. There were preferable procedural pathways to resolution of this dispute if Mr Tawhai wished to challenge the propriety of the stop and search. The contemplated pre-trial hearing,24 a disputed facts hearing,25 or an application under the Evidence Act26 are all mechanisms that could have provided the necessary clarity before Mr Tawhai decided to plead guilty.27 It would be unfair to determine such impropriety occurred, and warranted a further discount, after an informed choice was made to abandon recourse to these mechanisms to resolve the disputed facts. I accept there is an open door as to a sentencing discount for established breaches of the New Zealand Bill of Rights Act,28 but here the breach itself is not accepted by police.
[20] Second, and relatedly, I do not consider either s 30(3)(f) of the Evidence Act (alternative remedies to exclusion of the evidence that can provide adequate redress to the defendant) or s 9(4) of the Sentencing Act (court may take into account other aggravating or mitigating factors) operate to enable such a discount on a sentence appeal. In the appellant’s submissions, this proposal for a discrete discount is a remedy separate from excluding the evidence (s 30(3)(f)). Application of these provisions could be tenable when and if the evidence is found, on the balance of probabilities, to be improperly obtained (s 30(2)(a) and (b)).29 But, again, that will only be appropriate where a Court with all the relevant material before it, at the appropriate stage in the criminal process, is able to establish on the balance of probabilities that such illegitimate conduct occurred.
[21] Third, Mr Tawhai’s guilty plea limits the scope of the Court’s options on appeal. It is not for the Court to revisit that plea, in a way that would undermine its
24 An application under s 147 of the Criminal Procedure Act 2011.
25 Pursuant to s 24 of the Sentencing Act 2002.
26 Evidence Act 2006, s 30(1)(a).
27 In an appropriate case, post-sentence options such as a damages claim could also be available. See Simpson v Attorney-General (Baigent’s Case) [1994] 3 NZLR 667.
28 See Winders v R [2018] NZCA 277 at [70], [2019] 2 NZLR 305.
29 It follows I disagree with the Judge that “the senior Courts have concluded there is no other meaningful remedy for an impropriety”, but do not consider this was a relevant error.
factual foundations, especially where those foundations have been agreed. I acknowledge the forceful submission by Ms Barclay that defendants such as Mr Tawhai face a difficult choice by having to assess the chances of success under s 30 of the Evidence Act, and weigh them against the possibility of losing a guilty plea discount if the application is unsuccessful. But allowing Mr Tawhai to receive both the benefit of his guilty plea based on agreed facts, while upholding his challenge to those facts on a sentencing appeal, would undermine the agreed resolution process.
[22] For these reasons, I conclude that a further discount for alleged police impropriety is not warranted.
[23]I will briefly consider the remaining grounds of the appeal.
Approach to sentence appeal
[24] I must allow the appeal if I am satisfied that, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed.30
[25] Whether a sentence is manifestly excessive is assessed by reference to the end result, rather than the process by which it was reached.31 The Court does not start afresh or simply substitute its own opinion for that of the original sentencer.32 Mr Tawhai’s appeal is that the sentence of imprisonment should have been commuted to home detention. In R v Palmer, the Court of Appeal confirmed the same approach will apply to an appeal against a decision not to commute a sentence of imprisonment to home detention.33
[26] If there is a material error in the sentencing process, the Court will then form its own view of the appropriate sentence.34 I should not “tinker” or intervene with the end sentence if the end sentence is within range.35 In borderline cases, “the view of a
30 Criminal Procedure Act, s 250.
31 Ripia v R [2011] NZCA 101; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
32 At [30].
33 R v Palmer [2016] NZCA 541.
34 Tutakangahau v R, above n 31, at [30] citing Te Aho v R [2013] NZCA 47 at [30].
35 R v Boyd (2004) 21 CRNZ 169 at [38].
sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight.”36
[27] As the Court of Appeal said in James v R, it is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.37
Submissions
For Mr Tawhai
[28] Ms Barclay says the Judge imposed the sentence of imprisonment on “a mistaken basis”, considering there was a “presumption” of imprisonment. There is not, and cannot be, a presumption of imprisonment read into the charge of unlawful possession of a firearm.38
[29] As a result, Mr Tawhai did not have the advantage of the Judge “fully turning her mind as to whether a sentence of home detention could meet the purposes and principles of the Sentencing Act”.
[30] Ms Barclay submits that home detention is a “severe sentence” which carries with it “in considerable measure the principles of deterrence and denunciation”.39
For the police
[31] The New Zealand Police say the decision under appeal “do[es] not reflect a belief that there was a presumption of imprisonment for this charge”, rather, that that is the usual or “normal” response.
[32] Ms Prasad submits that the end sentence was within the range available to the Judge and was not manifestly excessive. It was open to the Judge to refuse to commute the term of imprisonment to home detention. She says this Court will “ordinarily
36 R v D (CA 253/2008) [2008] NZCA 254 at [66].
37 James v R [2010] NZCA 206, (2010) 24 NZTC 271 at [17].
38 Citing Aspinall-Su’a v Police [2020] NZHC 3022 at [59].
39 Paerau v Police [2020] NZHC 547 at [11]; Britten v Police [2017] NZHC 2410 at [55].
defer” to the assessment of the sentencing judge on appeal where the issue is whether home detention is appropriate in all the circumstances.40
Should greater discount have been given for mitigating factors?
[33] At sentence, the police suggested an uplift of 3–4 months for Mr Tawhai’s previous criminal offending. The Judge determined two months was appropriate. In my view this was generous to Mr Tawhai, given his numerous driving offences, four instances of assaulting, obstructing and resisting police, and previous convictions for firearms possession and assault with a weapon.
[34] Ms Barclay submits the Judge did not take into account Mr Tawhai’s reduction in drug use. Contrary to the Judge’s conclusion that drug use was not a relevant factor as there was no indication drug use was associated with the offending on 11 July 2024, Ms Barclay submits drug use was associated with the offending, given cannabis was also found during the events of 11 July.
[35] For reasons discussed above, placing weight on factual matters relating to the event that are omitted from the agreed summary of facts is not appropriate. The Court can of course have recourse to matters, such as those contained in reports under s 27 of the Sentencing Act, which are not within the summary of facts. But the Judge had no safe evidence the offending itself was drug-related,41 nor any reliable evidence of rehabilitation.
[36] The Judge was also entitled to robustly question the materials advanced as to Mr Tawhai’s efforts, while acknowledging that such cessation of drugs and alcohol is a positive step for any defendant.
[37] While I am sympathetic to the time Mr Tawhai spent on ordinary bail, “there needs to be something particularly restrictive about the bail conditions that warrants
40 Citing R v D (CA253/08), above n 36, at [66].
41 Given it is agreed Mr Tawhai committed the offence due to gang tensions, and his desire to be able to defend himself.
consideration of a discount”.42 I did not take Ms Barclay to submit at hearing that bail imposed considerable restrictions on Mr Tawhai’s liberty.43
[38] Accordingly, I do not consider the Judge erred by not making a greater discount for mitigating factors.
Did the Judge make a considered and principled choice between home detention and imprisonment?
[39] I reiterate that, in appeals of this nature, “the margin of appreciation extended to sentencing judges is usually significant”.44
[40] The Judge’s comment that possession of a firearm will normally lead to a sentence of imprisonment unless there are “special circumstances” was unfortunate. The Sentencing Act is clear that the least restrictive sentence must be imposed.45 Ms Barclay makes a valid point that approaching the exercise in this way could have introduced an error. But the focus is on the end sentence rather than the process by which it is reached.
[41] The Judge turned her mind to home detention,46 but concluded that Mr Tawhai’s behaviour (carrying a firearm and ammunition while travelling home from the grocery store in a suburban area) requires clear condemnation in our society.
[42] On appeal, this Court does not start afresh or simply substitute its own opinion.47 The Judge did not err in concluding that in the circumstances of Mr Tawhai’s offending imprisonment was the only sentence that could meet the purposes and principles of sentencing.48 She was entitled to balance the purposes and principles of sentencing in the way she did. I am satisfied that I do not need to revisit the sentence.
42 S (CA4/2021) v R [2023] NZCA 661 at [52].
43 At [52].
44 R v Palmer, above n 33, at [19], citing R v D, above n 36.
45 Sentencing Act, s 16.
46 See Fairbrother v R [2013] NZCA 340 at [30].
47 See R v Shipton [2007] 2 NZLR 218 (CA).
48 Sentencing Act, s 16. See Oltaches v Police [2021] NZHC 908 at [17] for the observation that “there does come a time when the need for deterrence and the safety of the community must take precedence over the possible rehabilitative needs of the offender”.
Result
[43]The appeal is dismissed.
McHerron J
Solicitors:
Public Defence Service, Wellington for Appellant Crown Solicitor, Wellington for Respondent
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