Tawhiao v Police - [2025] NZHC 3080

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2025-404-429

CRI-2025-404-430 [2025] NZHC 3080

BETWEEN
CLAYTON JOEL TAWHIAO

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 14 October 2025

Appearances:

V I Tava for the Appellant J Kim for the Respondent

Judgment:

16 October 2025

JUDGMENT OF GARDINER J

[Appeal against sentence]

This judgment was delivered by me on 16 October 2025 at 11.00 am.

Registrar/Deputy Registrar

Solicitors:
V I Tava, Barrister, Auckland Kayes Fletcher Walker, Auckland

TAWHIAO v NEW ZEALAND POLICE [2025] NZHC 3080 [16 October 2025]

[1] Clayton Tawhiao appeals the decision of Judge G A Andrée Wiltens sentencing him to two years and nine months’ imprisonment, with respect to the following charges:1

(a)unlawful possession of a firearm;2

(b)unlawful possession of explosives;3 and

(c)breach of home detention (x 2).4

[2]The police oppose.

The offending

[3]I adopt the Judge’s helpful summary of the offending:

What has happened here is that on 5 March, while you were subject to your home detention sentence, a search warrant was executed at your home. At
6.30 am you were the only one there and under your bed the police found this loaded shotgun; and inside a sub-woofer they found another four shotgun rounds. In a dumbbell rack, another shotgun round was located. That deals with the later offending.

The earlier offending is a pretty sad reading. You were sentenced to home detention for four months with six months of post-detention conditions for possession of a pipe for the consumption of methamphetamine, unlawful possession of a firearm and a theft. So, four months’ home detention and then six months of post-detention conditions from November. Pretty easy you would think to comply with that.

Instead of that, what I have here is information from the department telling me that on 16 January you were absent from 7.27 am to 16.24, so that is almost nine hours. When you were meant to be at home, when you are restricted as to what you can do as by way of punishment, and you just ignored that by going out and doing whatever it is that you wanted to do for nine hours. That is pretty flagrant. That is the first breach.

The second breach is actually in the middle of a number of breaches. On 7 February you left home at 6.30 am and you returned at 10.15 am, so there is three hours forty-six of unexplained activity

1      New Zealand Police v Tawhiao [2025] NZDC 19448.
2      Arms Act 1983, s 45(1)(b). Maximum penalty: four years’ imprisonment and/or $5,000 fine.
3      Section 45(1)(b). Maximum penalty: four years’ imprisonment and/or $5,000 fine.
4      Sentencing Act 2002, s 80S. Maximum penalty: one year’s imprisonment or $2,000 fine.

You left again at just after 1, and you returned 23 minutes later and you left again at almost 5.30, and you returned 15 minutes later. No one knows where you were at this time, but the one thing we do; and yet…

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 3080
Decision Date: 16 October 2025

CaseChat Overview and Summary

Clayton Joel Tawhiao appeals against his sentence of two years and nine months’ imprisonment imposed by Judge G A Andrée Wiltens for unlawful possession of a firearm, unlawful possession of explosives, and breach of home detention. The appeal hinges on the contention that the sentence was manifestly excessive due to an improper starting point for the firearms charge, inadequate consideration of recidivism, lack of discount for remorse, and the omission of rehabilitation evidence. Tawhiao also argues that he should have been sentenced to home detention. The police oppose the appeal, asserting that the sentence was within the appropriate range and that home detention would not be suitable given Tawhiao’s history of non-compliance.

The court examines the starting point for the firearms charge, the uplift for previous offending, the discount for remorse, and the relevance of rehabilitation evidence. The court agrees with Tawhiao’s submission that a starting point of 24 months for the firearms charge was more appropriate than the three years imposed by the Judge. The uplift for previous offending and the breach of home detention charges should have been in the vicinity of four to six months and three to four months respectively, rather than the eight months imposed. The court accepts Tawhiao's letter of remorse and the rehabilitation certificates as genuine and allows a five per cent discount for these factors.

The court finds that the sentence was manifestly unjust due to an error in principle in the uplift for recidivism and the omission of remorse and rehabilitation evidence. The appeal is allowed, and the sentence is reduced to two years and five months’ imprisonment. The court rejects the argument for home detention, finding that imprisonment is necessary to meet the purposes and principles of sentencing given Tawhiao's history and the current offending. The order for the destruction of the firearm and ammunition stands if it has not already been executed.

Orders