Tawhai v Police - [2025] NZHC 2302

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NZHC 2302
Decision Date: 14 August 2025

CaseChat Overview and Summary

Manuel Tawhai appeals his sentence of one year and nine months’ imprisonment, imposed by the District Court at Porirua, on a charge of possessing a firearm and ammunition. He argues the sentence is manifestly excessive and that 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. The court was required to determine whether the sentence imposed by the District Court was manifestly excessive and whether the judge properly considered the alleged police impropriety and mitigating factors such as Mr Tawhai’s cessation of drug use. The court found that the District Court judge properly considered the aggravating and mitigating factors, including the seriousness of the offence, Mr Tawhai’s criminal history, and his rehabilitative prospects. The court concluded that a sentence of imprisonment was appropriate given the nature of the offence and the need for deterrence and denunciation. The court also found that the alleged police impropriety did not warrant a further discount on the sentence, as the issue of impropriety had not been properly raised and resolved before Mr Tawhai entered his guilty plea. The appeal was dismissed, and the original sentence was upheld.

Orders