Tawhiao v Police
[2025] NZHC 3080
•16 October 2025
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 the electronic monitoring demonstrates that you clearly were not.
There is no charge in relation to what happened on the 7th, but on the 8th, you left home at 10.16 am and you returned, some nine minutes later; you left home again at almost 5 o’clock and you returned one hour, forty two minutes later; and then you left again at almost 11.30 pm and you were absent for nine hours, five minutes overnight. Goodness knows what you were doing but you were not at home as you were meant to be. Another flagrant breach. When you did return home, then just after lunch, almost 1 o’clock, you left home again for two hours and 13 minutes and then again at 5.30 pm you disappeared for an hour and three quarters, an hour and a half.
On 12 February, you left at 5.20 pm for 42 minutes and then left again at 9:40 pm for another 21 minutes.
Decision on appeal
[4] The Judge considered Mr Tawhiao’s history, having regard to a number of relevant previous convictions. This included six breaches of court sentences, two breaches of home detention, and a number of convictions relating to violence and firearms. The Judge noted that this was Mr Tawhiao’s fourth time having been found in unlawful possession of firearms. He also noted that the home detention sentence related to the present charges was the fourth and commented that Mr Tawhiao paid “scant regard” to the restrictions.
[5] The Judge adopted a starting point of three years’ imprisonment for the firearms and ammunition offending. The Judge had regard to the fact that this was the fourth possession of firearms in the community, that the firearm was loaded, not stored in a safe place, and easy to access.
[6] The Judge also noted an uplift of eight months was required for the breaches of home detention which Mr Tawhiao’s treated with “utter contempt”. This is in the context of six previous breaches of court sentences.
[7] The only discount allowed by the Judge was 25 per cent for his guilty plea. This resulted in an end sentence of two years and nine months’ imprisonment for the firearms offending.
[8] The Judge then imposed a sentence of six months in total for the home detention charges, to be served concurrently.
Approach on appeal
[1] The Court must allow the appeal if satisfied that for any reason there was an error in the sentence and a different sentence should be imposed.5 The focus is on the end sentence rather than the process by which it is reached.6 For the Court to interfere, the sentence must be shown to be wrong in principle or manifestly excessive.7 Ordinarily, the Court will not intervene where an end sentence is within the range that can properly be justified by accepted sentencing principles.8
The appeal
[2] Mr Tawhaio challenges his sentence as manifestly excessive due to the following factors:
(a)The starting point of three years for the firearms charge was excessive.
(b)Recidivism should properly have been dealt with as a separate uplift.
(c)There was no discount for remorse.
(d)The defendant should have been able to put evidence of rehabilitation before the sentencing Judge and seeks to adduce it now on appeal.
[3] Additionally, it is contended that Mr Tawhaio should have been sentenced to home detention.
5 Criminal Procedure Act 2011, s 250.
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
7 At [30]–[35].
8 At [36].
Submissions for Mr Tawhaio
Starting point
[4] Mr Tava says that the main issue with the sentence is that the starting point for the firearms offending was too high.
[5] Mr Tava refers to a range of authorities to support the submission that a starting point between 20 and 24 months was more appropriate for the firearms offending, instead of three years’ imprisonment. The firearm in the present offending was loaded but inside a bedroom, rather than in a public place or in a car, as was the case in R v Fonotia and R v Richardson (involving starting points of two years’ imprisonment).9 It was also not positioned for immediate use, as in Torea v R, where a starting point of two years and six months was imposed.10
[6] Rather, Mr Tava submits that the present offending is more similar to, but less serious than, the offending in Richardson (one charge of a sawn-off shotgun under a bed and a loaded shotgun in the boot of car), Edwards (a shotgun in a bedroom) and Miller (a pistol in the bedroom).11 In these cases, starting points between 18 and 24 months were imposed.
[7] Mr Tava submits that the Judge appears to have incorporated an uplift for firearms recidivism in the starting point. If it is accepted that a starting point of 24 months is appropriate, the Judge appears to have uplifted by 12 months. Mr Tava submits that this was excessive. In Smith v Police, an uplift of six months (from a starting point of 18 months) was considered appropriate where there were eight previous firearm convictions. In Miller v Police, a 15 per cent uplift was applied. Mr Tava submits that an uplift in the vicinity of 30 per cent would be more appropriate.
9 R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338; and R v Richardson CA450/02, 25 March 2003.
10 Torea v R [2011] NZCA 96.
11 R v Richardson, above n 9; Edwards v Police [2013] NZHC 1130; and Miller v Police [2021] NZHC 1104.
Personal mitigating factors
[8] Mr Tawhiao has provided a letter of remorse which was before the Judge at sentencing. The Judge made no mention of this letter. In this letter, Mr Tawhiao takes full accountability for his actions and says he is fully aware of the crime he has committed. He says he is committed to taking steps to becoming the best version of himself to take over the family business from his father, who is seriously ill. Mr Tawhiao also says that he is going to contribute to the community by getting involved with troubled youth.
[9] Mr Tava accepts that a discount for remorse is discretionary but submits that a discount was warranted in this case.
[10] Furthermore, Mr Tawhiao seeks to adduce two certificates of courses completed which were not before the sentencing Judge. Mr Tava explains this was due to an administrative error as Mr Tawhiao’s different sets of charges were assigned to two different counsel.
[11]The two certificates are for:
(a)participation in Kōrero Kōrero with Auckland Council Libraries; and
(b)engagement in a critical thinking programme with the Howard League.
[12] Mr Tava submits that Mr Tawhiao has availed himself of the limited rehabilitation options available on remand.
[13] Overall, Mr Tava submits that the sentence is manifestly excessive, taking into account the above issues, and should be 24 months or less.
Home detention
[14] If the Court accepts that the sentence should be 24 months or less, this will bring Mr Tawhiao’s sentence within range for consideration of home detention.
[15] Mr Tava acknowledges that Mr Tawhiao has had a poor history of compliance. However, he notes that it remains open to the Court to make a “considered and principled choice” between imprisonment and home detention.12 Mr Tava submits that deterrence appears to have been given priority without the countervailing purposes of sentence.
[16] Mr Tava highlights that an earlier PAC report recommended home detention. Mr Tava does acknowledge that the 29 July 2025 PAC report before the sentencing Judge recommended imprisonment, which appeared primarily based on the two breaches of home detention conditions on 16 January and 8 February 2025, as well as the new charges while on sentence.
Submissions for the police
Starting point
[17] Mr Kim notes there is no tariff case for firearms offending as the level of culpability varies greatly.13 However, in R v Richardson, the Court of Appeal stated:14
Loaded firearms are anathema within our community. Every Court has a clear obligation to impose sentences which in unequivocal terms express society’s condemnation of their availability because of the potential danger from their possession.
[18] Mr Kim submits that the Judge appears to have taken into consideration the appellant’s previous firearm offending when setting the starting point of three years’ imprisonment. While the conventional approach would have been to adopt a separate uplift for the appellant’s previous offending, the focus of the appeal as enunciated in Tutakangahau v R is on the overall sentence imposed. Mr Kim submits that the overall sentence was not manifestly excessive.
[19] Mr Kim accepts that a starting point of two years’ imprisonment would have been appropriate and within range when considering the firearm and explosives offending on a standalone basis. As raised by Mr Tava, the present offending is
12 Fairbrother v R [2013] NZCA 340 at [30].
13 Torea v R, above n 10, at [11].
14 R v Richardson, above n 9, at [33].
comparable to Richardson, where a loaded 12-gauge shotgun containing five live rounds was found in the offender’s vehicle, as well as another cut-down shotgun under his bed in a bedroom.
[20] While the offending in that case involved two firearms, the appellant’s offending in the present case is aggravated by the significant steps he took to conceal the shotgun cartridges. One live shotgun cartridge was found alongside the shotgun under his bed, but he had concealed four live cartridges inside a subwoofer (located in the cupboard of his bedroom), and one live cartridge inside a pole of a dumbbell rack in the lounge area.
Uplift for home detention
[21] Mr Kim submits that the uplift of eight months’ imprisonment to the starting point in respect of the breach of home detention charges was appropriate and within range.
[22] Mr Kim says that the appellant’s breaches of home detention are significantly more serious than in Nash v Police.15 Mr Nash faced two charges of breach of home detention (having previously been sentenced on charges of unlawfully interfering with a motor vehicle, unlawfully in an enclosed yard, possession of instruments for burglary, breach of community work, and possession of utensils). After serving three months of his home detention, Mr Nash breached his conditions by leaving the Odyssey House without approval. He did so again three days later, but on the second occasion, removed his electronic monitoring bracelet. The sentencing Judge imposed a sentence of six months’ imprisonment in respect of these two breaches. This was not disturbed on appeal.
[23] While Mr Tawhiao only faces two charges, it is apparent from the Judge’s reading of the facts that he absconded from his home detention address on multiple occasions in January and February 2025, often at numerous times on the same day.
15 Nash v Police HC Christchurch CRI-2008-409-107, 17 July 2008.
Uplift for previous offending
[24] Mr Kim acknowledges that an uplift in the vicinity of four to six months would have been appropriate and proportional to the 24-month starting point.
[25] In Reedy v Police, it was noted that uplifts are only permissible where the previous convictions either bear upon character and culpability, show a predilection to offend in a specific way or reflect the need to protect society.16 Furthermore, the Court of Appeal in Tiplady-Koroheke v R held that it is “important that there be some proportionality between the starting sentence and any uplift”.17
[26] Mr Kim submits that the appellant has a significant number of previous convictions, relevant to both the firearms and breaches of home detention offending:
(a)unlawful possession of firearm or explosives (x 2) (in 2024 and 2021);
(b)possession of offensive weapon (x 2) (in 2016 and 2006);
(c)unlawfully carrying an imitation firearm (in 2008); and
(d)breach of home detention conditions (x 3) (all in 2019).
[27] Mr Kim submits that the unlawful possession of firearm offending from 2024 is particularly relevant. This is because the appellant committed the present offending while subject to a home detention sentence that arose from the 2024 offending.
Offending while subject to a home detention sentence
[28] Mr Kim also notes that, based on the authorities, the Judge would have been entitled to uplift the sentence by a further three to four months, taking into account that the firearms offending occurred while Mr Tawhiao was subject to a sentence of home detention.18
16 Reedy v Police [2015] NZHC 1069 at [19].
17 Tiplady-Koroheke v R [2012] NZCA 477 at [24].
18 The Court of Appeal has previously found six months to be appropriate: see R v Wilson
[2008] NZCA 496 at [13].
Remorse
[29] Mr Kim submits that the evidence of remorse is limited. While the letter says Mr Tawhiao accepts responsibility for the offending, it lacks any engagement in respect of the offending, particularly in relation to the unlawful possession of firearms and explosives. Rather, there is evidence to the contrary, as could be seen in his PAC report:
Although Mr Tawhiao accepts the seriousness of his current and past offending, he minimised his part in the offending shifting responsibility to his negative peer associations and the need for personal protection.
Rehabilitation
[30] Mr Kim submits that leave should not be granted to admit the certificates evidencing completion of rehabilitation programmes as the inclusion of this evidence would not materially affect the overall sentence. No information has been provided as to the details of the rehabilitation undertaken, what Mr Tawhiao’s rehabilitative needs are, the duration of the programmes, as well as the relevance of the programmes to the index offending.
Overall sentence
[31] In the written submissions, the initial position of the police was that the 25 per cent discount for a guilty plea entered following two case review hearings was lenient. However, at the hearing, Mr Kim conceded that the discount was orthodox because Mr Tawhiao was originally charged with more serious charges which were later dropped.
[32] Taking that into account, Mr Kim submits that the sentence imposed by the Judge was within range and not manifestly excessive. A recalculation of the sentence on the above basis leads to an end sentence in the range of two years and four months’ to two years and six months’ imprisonment.
[33] Accordingly, home detention would not have been a consideration for the Judge.
[34] In any event, Mr Kim submits that home detention would not be appropriate for Mr Tawhiao. He has shown that he is unable to comply with a sentence of home detention. Therefore, the purposes and principles of sentencing, particularly denunciation and deterrence, can only be met with a sentence of imprisonment in the present case.
Discussion
[35] The parties agree that a starting point of 24 months for the firearms offending was within range. Having reviewed the authorities to which Mr Tava refers, I agree that a starting point of 24 months is appropriate.
[36] It is unclear from the judgment what the Judge considered the starting point to be before the uplift for previous offending. The Judge referred to a starting point of three years, taking into account the seriousness of the offending and that this was Mr Tawhiao’s fourth possession offence.
[37] If a starting point of 24 months is assumed, the uplift for previous relevant offending was 12 months. I agree with the police that an uplift in the vicinity of four to six months would have been more consistent with the authorities and proportional to a 24-month starting point.
[38] I consider that the Judge’s uplift of eight months for the breach of home detention charges was appropriate and within range, considering it was not an isolated breach and Mr Tawhiao has paid “scant regard” to the restrictions.
[39] I accept Mr Kim’s submission that the Judge would have been entitled to uplift the sentence by a further three to four months to reflect that the firearms offending occurred while Mr Tawhiao was subject to a sentence of home detention. In R v Wilson,19 the sentencing Judge adopted a starting point of two years, three months’ to two years, six months’ imprisonment in relation to a charge of setting a device that was likely to injure with reckless disregard for the safety of others. The Court of Appeal considered that this starting point was generous given that it was open to the
19 R v Wilson, above n 19, at [13].
sentencing Judge to uplift the sentencing by six months to reflect the fact that the offending was committed while the offender was on a sentence of home detention. This would have amounted to an uplift of approximately 20 per cent of the starting point.
[40]In summary, I consider a more appropriate sentence would have comprised:
(a)a starting point of 24 months;
(b)an uplift of eight months for the breach of home detention charges;
(c)an uplift of four to six months for previous relevant offending; and
(d)an uplift of three to four months for offending while on home detention.
[41] This would result in an adjusted starting point of between three years and three months and three years and six months.
[42] The 25 percent discount for an early guilty plea is not challenged and is appropriate.
[43] In his remorse letter, Mr Tawhiao apologises for his actions, says that he takes full accountability and that the three months in prison have been a wake-up call. He expresses his intention to take over the family business, complete a personal training course and work with troubled youth. This letter is encouraging, and I am prepared to take this expression of remorse and commitment to reform as genuine.
[44] As to evidence of rehabilitation, I grant leave for the certificates to be admitted. These certificates record that Mr Tawhiao has completed an Auckland Council library course and a Howard League “Six Thinking Hats” programme. It is true that this evidence does not demonstrate extensive rehabilitation efforts, but I accept that the opportunities for rehabilitation are limited while on remand.
[45] The Judge did not refer to the remorse letter and did not have the certificates. I consider that a five per cent discount for these factors should be allowed.
[46] This brings the overall sentence down to between two years and five months and two years and eight months.
[47] At the lower end, this is a difference of four months from the sentence imposed in the District Court. I recognise this is a modest change on appeal. However, I have identified an error in principle in the uplift imposed for recidivism and been provided with new evidence as to remorse and rehabilitation. Further, what might appear a minimal adjustment is material in a sentence of relatively short term. Considered proportionately, the sentence is manifestly unjust.
[48] The issue of home detention does not arise. In any event, I accept the Judge’s reasoning that the least restrictive outcome for Mr Tawhiao is imprisonment. It is very apparent that home detention has not been sufficient to deter his offending, with the present offending involving breaches of home detention. Mr Tawhiao’s history, coupled with the current offending, does not satisfy me that the purposes and principles of sentencing are served other than with a sentence of imprisonment.
Result
[49]The appeal is allowed.
[50] The sentence is reduced to two years and five months’ imprisonment. The Judge’s order for the destruction of the firearm and the ammunition stands if it has not already been executed.
Gardiner J
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