Te Aho v Police
[2023] NZHC 1056
•5 May 2023
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2023-441-03
[2023] NZHC 1056
BETWEEN ROMA LADY MANUEL-TE AHO
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 28 April 2023 Counsel:
E J Forster for Appellant
A V Bryant for Respondent
Judgment:
5 May 2023
JUDGMENT OF RADICH J
Introduction
[1] Ms Te Aho1 pleaded guilty to, and was convicted on, 26 charges in the Napier District Court.2 The offending to which the charges relate is summarised in [5] below.
1 Ms Te Aho has said that “Manuel” was a nickname she adopted in prison and that she no longer wishes for it to be used by the Court. In this decision, I refer to the appellant just as Ms Te Aho.
2 Three counts of burglary (Crimes Act 1961, s 231(1)(a)); unlawfully in an enclosed yard (Summary Offences Act 1981, s 29(1)(b); three counts of using a card for pecuniary advantage (Crimes Act, s 228(1)(b)); two counts of theft over $1,000 (Crimes Act, ss 219 and 223(b)); theft between $500 and $1,000 (Crimes Act, ss 219 and 223(c)); five counts of theft under $500 (Crimes Act, ss 219 and 223(d); two counts of unlawfully taking a motor vehicle (Crimes Act, s 226(1)); three counts of unlawfully entering a motor vehicle (Crimes Act, s 226(2)); three counts of driving while disqualified (Land Transport Act 1998, s 32); giving false information as to identity of driver (Land Transport Act, ss 52 and 114); two counts of breach bail (Bail Act 2000, s 38(a)); breach of court release conditions (Sentencing Act 2002, s 96(1)).
TE AHO v NEW ZEALAND POLICE [2023] NZHC 1056 [5 May 2023]
[2] On 24 February 2023, Ms Te Aho was sentenced by Judge Collins in the District Court to three years’ imprisonment. In addition, her outstanding fines of
$15,273.40 were remitted and she was disqualified from driving for six months.3
[3] Ms Te Aho has appealed from her sentence of three years’ imprisonment on two primary grounds:
(a)that the District Court Judge erred in his approach to sentencing because, for a set of dishonesty-related offences, he applied a discrete sentence of 36 months and added it, cumulatively, to the starting point (and uplifts) he had set for the leading offence rather than simply applying uplifts for those dishonesty-related offences to the starting point for the leading offence; and
(b)that, however assessed, the 36-month increase to the starting point (and uplifts) for the dishonesty-related offences was excessive.
[4] The Crown’s position is that the sentencing approach was appropriate, that the concurrent sentences imposed were consistent with the totality of the offending and that the end sentence was not manifestly excessive.
Summary of offending
[5] The offending took place between 24 November 2021 and 16 September 2022. Very much by way of summary, it can be described as follows:
(a)24 November 2021 – theft under $500.4 Ms Te Aho stole several items from Countdown supermarket in Hastings.
(b)24 March 2022 – breach of court release conditions.5 When released from prison on 18 March 2022, Ms Te Aho breached the conditions of her release.
3 Police v Manuel-Te Aho [2023] NZDC 3578.
4 Crimes Act, ss 219 and 223(d).
5 Sentencing Act, s 96(1).
(c)11 April 2022 – driving while disqualified.6 Ms Te Aho was stopped by Police on Wainui Road in Gisborne and was found to have been driving while disqualified.
(d)25 April 2022 – theft over $1,000.7 Ms Te Aho stole 49 items of clothing valued at $2,463 from Rebel Sport in Hastings.
(e)26 May 2022 – theft under $500.8 Ms Te Aho stole several further items, to a value of $309.96, from Rebel Sport in Hastings.
(f)30 May 2022 – unlawfully entering a motor vehicle.9 Ms Te Aho stole a vehicle in Havelock North, caused damage to it and abandoned it.
(g)11 June 2022 – using a card for pecuniary advantage.10 Someone stole, from a vehicle parked in a private driveway in Hastings, a wallet containing credit cards and Ms Te Aho then made purchases with those cards totalling $2,500.
(h)13 June 2022 – failing to attend District Court on bail.11 Ms Te Aho was released on bail on 23 May 2022 and failed to appear in the District Court at Gisborne as required.
(i)14 June 2022 – using a card for pecuniary advantage.12 Someone broke into a car, stole a wallet including bank cards, and Ms Te Aho then used those cards to make purchases totalling $3,623.34.
(j)19 June 2022 – theft under $500.13 Ms Te Aho stole chocolate bars from a BP service station.
6 Land Transport Act, s 32(1)(a) and (3).
7 Crimes Act, ss 219 and 223(b).
8 Sections 219 and 223(d).
9 Section 226(2).
10 Section 228(1)(b).
11 Bail Act, s 38(a).
12 Crimes Act, s 228(1)(b).
13 Sections 291 and 223(d).
(k)24 June 2022 – using a card for pecuniary advantage,14 and theft between $500 and $1,000.15 Someone broke into a car, stole a handbag containing credit cards and then Ms Te Aho used one of those cards to make purchases totalling $1,429. Later that day, she stole items valued at $800 from Rebel Sport in Napier.
(l)25 June 2022 – unlawfully entering a motor vehicle,16 and driving while disqualified.17 Someone stole a vehicle, Ms Te Aho drove it while disqualified and ran away from the Police officers who had pulled her over.
(m)28 June 2022 – burglary.18 Ms Te Aho took a set of car keys from behind a counter at a restaurant and then used them to take the vehicle which belonged to a worker at the restaurant.
(n)6 July 2022 – failing to attend District Court bail.19 Having been released on bail, Ms Te Aho failed to appear in the District Court at Gisborne on 6 July 2022 as specified in her bail notice.
(o)25 July 2022 – unlawfully taking a motor vehicle.20 Ms Te Aho stole a vehicle that was parked in the carpark of a Hastings business.
(p)7 August 2022 – unlawfully entering a motor vehicle,21 and burglary.22 Someone entered a parked car in Flaxmere, stole the car keys and cigarettes and then, later, Ms Te Aho went to the address and stole the car, abandoning it when it ran out of petrol. Later that day, she broke into the side room of a shed in a work yard, took sets of keys for
14 Crimes Act, s 228(1)(b).
15 Sections 219 and 223(c).
16 Section 226(2).
17 Land Transport Act, s 32(1)(a) and (3).
18 Crimes Act, s 231(1)(a).
19 Bail Act, s 38(a).
20 Crimes Act, s 226(1).
21 Section 226(2).
22 Section 231(1)(a).
earthmoving machinery and trucks and then tried to break into other sheds on the site.
(q)8 August 2022 – unlawfully entering an enclosed yard.23 Ms Te Aho entered an enclosed yard and surveyed the yard before leaving.
(r)26 August 2022 – theft over $1,000,24 and theft under $500.25 Ms Te Aho endeavoured to steal a television from The Warehouse in Hastings and then, later that day, stole a box of chocolate bars from a Caltex service station in Hastings.
(s)1 September 2022 – burglary.26 Ms Te Aho entered a house in Flaxmere by forcing open a bedroom window. She uplifted multiple electronic items, jewellery and clothing. When the victim returned to the address, Ms Te Aho jumped out of the house from a bedroom window, encountering the victim’s daughter. While holding the items taken, she told the daughter “sorry, it’s for me and my boyfriend” and ran down the street.
(t)5 September 2022 – unlawfully taking a motor vehicle,27 and theft under $500.28 Ms Te Aho drove a person known to her, in that person’s car, to a supermarket. Telling the victim that she would wait for her in the carpark, she, instead, drove off. She then filled the car with petrol and left without paying. The car was not recovered.
(u)16 September 2022 – driving while disqualified,29 and giving false information as to identity.30 Ms Te Aho was driving a motor vehicle in the Taupō area without a licence and then, when stopped, gave false information about her identity.
23 Summary Offences Act 1981, s 29(1)(b).
24 Crimes Act, ss 219 and 223(b).
25 Sections 219 and 223(d).
26 Section 231(1)(a).
27 Section 226(1).
28 Sections 219 and 223(d).
29 Land Transport Act, s 32(1)(a) and (3).
30 Sections 52A(1)(c), (2) and 114(3)(b).
Conviction history and personal circumstances
[6] Ms Te Aho is 27 years old. She has a 17-page list of previous convictions and bail history. Most of her previous convictions relate to dishonesty offending – shoplifting and theft, burglary, and using a document for pecuniary advantage. She has six previous convictions for driving-related offending and a significant history of breaching bail and court release conditions. She has committed over 100 offences while on bail for other offending, has 10 breaches of court release conditions and 13 breach of bail offences. The sentences Ms Te Aho received for her offending range from orders for reparation and social welfare supervision in the Youth Court to short terms of imprisonment with standard and special release conditions.31
[7] The writer of a report under s 27 of the Sentencing Act 2002 believed there to be a “demonstrative nexus between Ms Te Aho [sic] background and her offending, which mitigates her moral culpability …”. The writer concluded:
[3.36] Ms Te Aho has suffered profoundly intertwined social and cultural deprivation. She displays the symptoms of systematic deprivation such as familial instability, intergenerational whānau violence, physical and psychological abuse; exposure to alcohol and drugs; resulting in chronic addiction; loss and abandonment as a child and with her children, Intergenerational State care involvement, gang exposure due to her father, whānau, ex-partner and location; cultural and social dislocation and disconnection; diminished educational opportunities, unstable employment, food, material and housing poverty; early entry into the Justice system and continuing harmful effects of colonisation. …
[8] The report refers to Ms Te Aho having limited proficiency in te reo Māori and connectedness to te ao Māori, but with an increasing connection through prison- delivered programmes. Ms Te Aho reported that she did well at school but was expelled because she bullied other children and was using drugs.
[9] Ms Te Aho has experienced familial instability, hardship and drug use. She self-reports having “lived poverty” and needing to offend to survive. Her mother left her father because of his drug use. Her father introduced Ms Te Aho to methamphetamine at around the age of 13. Ms Te Aho described her father as being emotionally abusive. Her most traumatic period was, she said, with her ex-partner
31 Her longest sentence was one of intensive supervision for one year and eight months.
who was “patched with the Mongrel Mob, violent, unfaithful, an extreme manipulator and the most horrible, mentally abusive person you could ever meet”. She said that this emotional abuse would make her turn to drugs and offend. However, the report writer has said that Ms Te Aho has developed insight into her past and that she would like to be supported into making changes.
[10] Ms Te Aho has siblings who were separated when her mother lost them to what was then Child, Youth and Family. She is hopeful that she can maintain a relationship with her children who are living with friends. She describes a good relationship with her children but “not good enough”. They are, she says, the people who make her want to “change [her] life around”. She has not had stable employment since “handy jobs” and working at McDonalds 10 years ago.
[11] In a letter to the sentencing Judge, Ms Te Aho describes being “fully and genuinely remorseful to [the] victims and businesses that have been affected by [her] poor choice of actions”. She said that she accepts responsibility for her actions and the consequences of those actions.
Judge’s decision
[12] The Judge reasoned his way to his decision to impose an end sentence of three years’ imprisonment through a series of sequential steps:
(a)He took the residential burglary charge on 1 September 2022 as the lead offence. For this charge, he noted, as aggravating factors, the involvement of, and confrontation with, a child, the taking of high- value items, the premeditation involved and the fact that it was committed while on bail.32 He set a starting point of 20 months’ imprisonment.33
(b)An uplift of four months was applied for Ms Te Aho’s previous burglary convictions.34
32 Police v Manuel-Te Aho, above n 3, at [4].
33 At [4].
34 At [5].
(c)An uplift of six months was then applied for the other two burglaries.35
(d)An uplift of three months was added for the offending committed while Ms Te Aho was on bail for previous offending.36
(e)The Judge then considered what the “starting points” for other dishonesty-related offending would be if taken on their own. He said that:
(i)the fraudulent use of documents charges would attract starting points of 12 months’ imprisonment as multiple victims were involved;37
(ii)the charges of theft – those over $1,000 – would attract starting points of 12 months’ imprisonment;
(iii)the charges relating to unlawfully taking motor vehicles would justify a starting point of 12 months’ imprisonment given, in particular, the serious breach of trust that was involved in the offending described in [5(t)] above.
(f)Having uplifted the lead offending by each of these “starting points”, the Judge then added a further six month uplift for all other offending
– driving while disqualified, unlawfully getting into motor vehicles, lesser thefts, failing to answer bail and breach of release conditions.38 This brought the adjusted starting point to six years and three months.
(g)The Judge then reduced the six year and three month period to five years on a totality basis.39
35 At [6].
36 At [7].
37 At [9].
38 At [11].
39 At [11]–[12].
(h)Ms Te Aho was then credited with a discount of 20 per cent for her guilty plea and with a “substantial discount” of 20 per cent for the personal factors identified in the s 27 report.40 That produced an end sentence of three years’ imprisonment.
[13] Having done that, the Judge said that he was imposing that three year sentence on the charge of burglary committed on 1 September 2022 and that “all other terms of imprisonment are concurrent”.41 He recorded the concurrent sentences as follows:
(a)unlawfully entering an enclosed yard – one month;
(b)three charges of fraudulently using a document, one year each;
(c)two charges of theft over $1,000, one year;
(d)one theft between $500 and $1,000, three months;
(e)five charges of theft under $500, one month;
(f)two charges of unlawfully taking a motor vehicle, one year;
(g)three charges of unlawfully entering a motor vehicle, three months;
(h)three charges of driving while disqualified, one month;
(i)giving false information, convicted and discharged; and
(j)two charges of failing to answer District Court bail, one month each.
[14] The Judge said that he was not inclined to consider the year Ms Te Aho had spent remanded in custody as time served, given the number of offences involved and the seriousness of the offending.42 He declined to order reparation for the victims and
40 At [13]–[14].
41 At [17]–[18].
42 At [16].
he remitted $15,273.40 of fines because Ms Te Aho had no ability to pay them. Finally, he disqualified Ms Te Aho from driving for six months.43
Legal principles
Approach to appeal
[15] Under s 250 of the Criminal Procedure Act 2011, the appeal court must allow the appeal if satisfied that for any reason there is an error in the sentence imposed on conviction and a different sentence should be imposed. It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles. Although s 250 does not refer to “manifestly excessive”, it is a principle that is well-established in the Court’s approach to sentence appeals. The Court cannot “tinker” with an end sentence if it is within range; the focus is on the end sentence rather than the process by which it was reached.44
[16]If the Court allows an appeal, it must:
(a)set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate; or
(b)vary the sentence, vary any part of the sentence, or vary any condition of the sentence; or
(c)remit the sentence to the court that imposed it and direct that court to take any action of a kind described in paragraph (a) or (b) as specified by the first appeal court.
Approach to sentence
[17] Calculating an appropriate sentence is a two-stage process.45 The sentencing Judge must, first, fix the starting point for the offending, which includes identifying the aggravating and mitigating factors of the offending to arrive at an appropriate term of imprisonment.46 Where sentences are being imposed for more than one offence, the Judge must determine whether the sentences will be served concurrently or
43 At [29]–[30].
44 Ripia v R [2011] NZCA 101 at [15]; and R v Boyd (2004) 21 CRNZ 169 at [38].
45 Moses v R [2020] NZCA 296 at [46].
46 Sentencing Act, s 9.
cumulatively in terms of s 84 of the Sentencing Act. Under that provision, cumulative sentences are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences, while concurrent sentences are generally appropriate if the offences are of a similar kind and are a connected series of offences.
[18] Whether the sentencing Judge imposes sentences cumulatively or concurrently, the total sentence must then be proportionate to the overall offending. Section 85 of the Sentencing Act provides for this principle in reflecting, very much by way of summary, that, if the Court is considering imposing sentences of imprisonment for two or more offences, the individual sentences must reflect the seriousness of each offence. Under that provision, if cumulative sentences are imposed, they must not result in a total period of imprisonment that is out of proportion to the gravity of the overall offending. If only concurrent sentences are to be imposed, then the most serious offence must receive the penalty that is appropriate for the totality of the offending and each of the lesser offences must receive the penalty appropriate to that offence.
[19] The second stage then requires the Judge to take into account any personal circumstances of the offender that are relevant, including guilty pleas, and to determine whether the starting point should then be adjusted. All second stage uplifts and discounts are to be fixed by reference to the adjusted starting point.47
[20] With these principles in mind, the overriding consideration will always be the purposes and principles of sentencing contained in ss 7 and 8 of the Sentencing Act.
Issues
[21]The issues raised on appeal are whether:
(a)the District Court Judge erred in his approach to sentencing to such an extent that correction to the end sentence is warranted; and
47 Moses v R, above n 45, at [47].
(b)in any event, the uplifts for some of the dishonesty offending were too high.
The sentencing approach
[22] Mr Forster, for the appellant, focuses on that part of the Judge’s approach to sentencing that is described in paragraph [12(e)] above. It is said that this step in the Judge’s approach resulted in him applying, erroneously, a 36-month cumulative sentence on top of the starting point for the lead offending already identified – and the uplifts on that lead offending – when, instead, more modest uplifts should have been applied. While the appellant accepts that the effect of this approach was ameliorated in part by the nine-month reduction for totality, it was said that the approach that was taken was at odds with s 84 of the Sentencing Act.
[23] The appellant sees the decision of Gendall J in Hepburn v Police as being on point.48 In that case, the appellant was sentenced to six years’ imprisonment and disqualified from driving for five years and six months on 81 charges of dishonesty and driving-related offending. Gendall J accepted that the offending represented a drug-fuelled three-month spree that warranted a concurrent approach.49 In that case, the District Court Judge had grouped the offending on the basis of maximum penalties for each group and had used a cumulative sentence approach. Gendall J found that, while it was open to the District Court Judge to adopt cumulative sentences for some of the offending, the overall sentence arrived at was, to an extent, contrary to the principle of totality. His Honour found that the appropriate way to approach the sentencing exercise was to adopt the dishonesty charges as the lead charges and then apply uplifts for the related driving offending and less serious charges.50
[24] I accept that concurrent sentences were appropriate for this offending. The offending for which Ms Te Aho was being sentenced was all of a similar kind and was, in many ways, a connected series of offences.51 While they occurred over an eight- month period, the overall nature of the offending was in the nature of a “spree”
48 Hepburn v Police [2023] NZHC 475.
49 At [24].
50 At [26] and [27].
51 Sentencing Act, s 84(2).
following Ms Te Aho’s release from prison on bail. Even the driving offending was connected to the dishonesty offending.52
[25] I accept the submission for the Crown that the Judge did in fact adopt a concurrent approach. At the point in the sentencing decision that is described in paragraph [12(e)] above, the Judge said that he was “looking at those other charges if they stood on their own”.53 At first glance, it does appear that the Judge might have been grouping this offending and applying a separate 36-month cumulative sentence. But the Judge’s concluding remarks better explain his approach. He said that the sentence of three years was imposed on the lead burglary charge and that “all other terms of imprisonment are concurrent, that is it means they are served at the same time.”54 Then he went on to impose concurrent sentences for all of the other offending.
[26] The approach is consistent with that in Hepburn and Anderson v R.55 I find no error in the sentencing Judge’s approach which would require a departure from the principle that the focus in sentence appeals is on the end sentence unless there is a fundamental error in need of correction.56 The real issue is whether the uplifts for the offending that was considered at the step described in paragraph [12(e)] above were manifestly excessive to the extent that the end sentence did not reflect the totality of the offending. I turn to that issue now.
Uplifts for further offending
[27] The appellant submits that the 36-month uplift applied by the District Court Judge for the other dishonesty-related offending should have been in the range of six to 12 months. The 36-month uplift was structured as follows:
(a)on three counts of fraudulently using documents, 12 months;
(b)on two counts of theft over $1,000, 12 months; and
52 Section 84(3).
53 Police v Manuel-Te Aho above n 3, at [9].
54 At [17] and [18].
55 Anderson v R [2017] NZCA 91; and Hepburn v Police, above n 48.
56 For example, an arithmetical error. See Tutakangahau v R [2014] NZCA 279 at [36]. See also
R v Shipton [2007] 2 NZLR 218 (CA) at [138]–[190], for the approach to appeal.
(c)on two counts of unlawfully taking a motor vehicle, 12 months.
[28]I look now at each of those uplifts:
(a)The two charges of taking a motor vehicle involved an element of premeditation and, in the case of the theft from a person known to Ms Te Aho, a breach of trust. The presence of a significant aggravating feature (or aggravating features) for this offending would justify a starting point of 18 months for a single unlawful taking charge.57
(b)The two counts of theft over $1,000 for shoplifting clothes from Rebel Sport to the value of $2,463 and stealing a TV from The Warehouse valued at $1,399 involved elements of deception or premeditation.58 Ms Te Aho has around 50 previous convictions for theft or shoplifting. In cases referred to by counsel for the respondent that involved one theft to a similar monetary value as is the case here, starting points of eight and 12 months were adopted.59
(c)The offending which gave rise to charges of using a document for pecuniary advantage was aggravated by the determined use of the cards within a short space of time and by the relatively significant value of the transaction: for the 10 June offending, $2,500; the 14 June offending, $3,623.34; and for the 24 June offending, an attempted use to the value of $1,429. Ms Te Aho has nine previous convictions for this type of offending.60
57 The sentencing Judge referred to Mucalo-Connolly v Police [2021] NZHC 3476. See that decision at [10]–[11].
58 Ms Te Aho scanned a $1 packet of soup in an attempt to make it appear that she was scanning the TV.
59 In Davies v Police [2019] NZHC 3081, the High Court on appeal adopted a starting point of eight months’ imprisonment for the lead charge of theft over $1,000 where the stolen good was worth
$1,388.20; and in Wilson v Police [2021] NZHC 198, the High Court imposed a starting point of 12 months’ imprisonment for the theft of carpet cleaner worth $4,000.22.
60 In Horrell v Police [2016] NZHC 820, the appellant obtained a debit card from the victim’s home and used it to obtain over $600 through four transactions, resulting in six charges of dishonesty taking and using documents to obtain a pecuniary advantage. On appeal the High Court imposed a starting point of six months’ imprisonment. In Palmer v Police HC Rotorua CRI-2009-463-82, 4 November 2009, a starting point of nine months’ imprisonment was imposed on appeal where the appellant and his partner used a debit card belonging to an elderly woman to withdraw a total of $10,200 over five days. In Doctor v Police [2017] NZHC 1084, the appellant stole several pay
[29] This is where the totality principle comes into play. The principle works to prevent grossly disproportionate sentences and can entail a reduction in the starting point that would have been adopted had the offending stood alone. Given that each of the three sets of dishonesty offending identified in paragraph [12(e)] above could reasonably have attracted 12-month starting points if the offending stood alone, a combined uplift of 36 months sits uncomfortably with the totality principle. In effect, taken together with the additional six-month uplift described in paragraph [12(f)] above, the 36-month uplift for these seven more minor offences is a 145 per cent increase on the 33 months given for all three burglaries (and uplifted with aggravating factors personal to the offender), as described in paragraph [12(a) to (d)] above.
[30] I accept that, on this basis, the uplifts applied by the District Court Judge are out of proportion with the starting point for the lead offending and that, rather, a combined uplift of 15 to 20 months for the remainder of the offending described in paragraph [12 (e) and (f)] above was appropriate. This would have produced an adjusted starting point of 53 months, or four years and five months, and an end sentence of two years and eight months.
[31] However, the sentencing Judge did in fact consider the totality principle. He did so at the point in his sentencing sequence that is described in paragraph [12(g)] above. He reduced the starting point he had applied to one of five years. The Court of Appeal has emphasised that, in sentencing for multiple offences, the central issue is the appropriate total sentence for the charges that have been proven.61 The way in which the sentence is constructed is a matter for individual discretion and assessment.62
wave cards and made purchases (total sum not clear). He pleaded guilty to six charges of using a document for pecuniary advantage, two charges of theft (one for good valued over $1,999 and one for goods under $500). A starting point of 12 months’ imprisonment was considered appropriate.
61 R v Xie [2007] 2 NZLR 240 (CA) at [16], quoting R v Williams CA91/00, 31 May 2000 at [11]. Counsel for the appellant expressed some concern with the decision in Xie as the case is a little dated. He thought it might still apply to a disconnected series of offences. The overall principle remains relevant in circumstances where, as discussed above, the approach to sentencing was without error. But the Judge applied the totality principle at a later stage in the process.
62 R v Hassan [1999] 1 NZLR 14, (1998) 16 CRNZ 18 (CA) at 16, 20; and R v MacCulloch [2005] 2 NZLR 665, (2004) 21 CRNZ 268 (CA) at [67] and [68].
[32] But is the Judge’s sentence of three years within range, having regard to the sentence of two years and eight months I would have imposed? Would interference over the four-month difference amount to judicial tinkering? I do not think it would. In Henderson v Police, Mallon J found, in the case of a term of imprisonment imposed by the District Court of two years and six months, that a four-month reduction (to reflect the approach preferred on appeal) went beyond tinkering.63
Result
[33] The appeal is allowed. The sentence of three years’ imprisonment for the charge of burglary committed on 1 September 2022 (CRN 4284) is quashed. A sentence of two years and eight months is substituted. The concurrent sentences on the other charges remain.
Radich J
Solicitors/Counsel:
E J Forster, Hastings for Appellant Crown Solicitor, Napier for Respondent
63 Henderson v Police [2021] NZHC 78 at [30]. Compare Haereroa v R [2020] NZCA 169 at [33] where it was found that an adjustment of between one and two months on a sentence of four years and six months’ imprisonment was not such as to warrant intervention. See also Cobham v R [2021] NZHC 1066 at [38] where a percentage approach was taken.