Tepania v Police

[2025] NZHC 2282

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2025-404-299

CRI-2025-404-300 [2025] NZHC 2282

BETWEEN

ROBERT TEPANIA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	11 August 2025
Appearances:	K Ilango (on behalf of A Williams) for Appellant S K Jocelyn for Respondent
Judgment:	12 August 2025

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by Justice Lang On 12 August 2025 at 3.00 pm

Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:

A W Law, Manukau

Kayes Fletcher Walker, Manukau

TEPANIA v POLICE [2025] NZHC 2282 [12 August 2025]

[1]    Mr Tepania pleaded guilty in the District Court at Papakura to two charges of burglary and one charge of breaching a sentence of community work.

On 30 May 2025, Judge G T Winter sentenced him to 25 months imprisonment.1

[2]    Mr Tepania appeals against sentence. He contends the Judge selected a starting point that was too high on one of the burglary charges. He also says the Judge failed to provide him with an adequate discount in relation to mitigating factors.

The offending

[3]    The first burglary charge related to the burglary of a residential address on the evening of 31 December 2024. The occupants had left  the  address  at  approximately 3.00 pm that day to celebrate New Year’s Eve elsewhere. They returned at midday the following day to find that their house had been “rough searched”, or ransacked. A portable speaker and a television set had been stolen. These cost approximately $1,100 to replace.

[4]    A baseball cap was found outside the lounge window of the address. DNA extracted from the cap was found to match Mr Tepania’s DNA profile.

[5]    The second burglary charge  related  to  the  burglary  of  a  recycling  plant on 25 February 2025. Mr Tepania and an associate were seen on CCTV to enter the property through a gap in a boundary fence. They picked up a copper aluminium belt and placed this near an exit. Mr Tepania was identified a short time later at a service station, where he was arrested.

[6]    The charge of breaching the sentence  of  community  work  was  laid after Mr Tepania failed to carry out a sentence of community work imposed for breaching a sentence of home detention on five occasions in April 2024. The sentence of home detention had been imposed on 22 February 2024.

1      Police v Tepania [2025] NZDC 12809.

The sentence

[7]    The Judge selected a starting point of 20 months imprisonment on the first burglary charge.2 He added an uplift of six months to reflect the second burglary charge3 and a further uplift of two months to reflect the charge of breaching the sentence of community work.4 This resulted in a sentence of 28 months imprisonment.

[8]    The Judge then applied a discount of six months, or 20 per cent, to reflect guilty pleas.5 Finally, he added an uplift of three months to reflect the fact that Mr Tepania had 13 previous convictions for burglary as well as numerous other convictions for dishonesty offences.6 This produced the end sentence of 25 months imprisonment.

The appeal

[9]On Mr Tepania’s behalf, Mr Ilango advances the following arguments:

(a)the starting point on the first burglary charge should not have been greater than 18 months;

(b)the Judge ought to have applied a discount to reflect Mr Tepania’s remorse for the offending; and

(c)the Judge ought to have considered rehabilitative options that were open to Mr Tepania to promote his rehabilitation and reintegration into the community.

Was the starting point on the first burglary charge excessive?

[10]   To support his submission that a starting point of 18 months imprisonment would have been appropriate on the first burglary charge Mr Ilango relies on the starting points approved by this Court in Waara v Police7 and Woodmass v Police.8

2 At [15].

3 At [16].

4 At [17].

5 At [18].

6 At [19].

7      Waara v Police [2024] NZHC 1726.

8      Woodmass v Police [2019] NZHC 2503.

He contends that the facts of those cases are comparable to those underpinning the first burglary charge.

[11]   However, in fixing a starting point of 20 months imprisonment, the Judge relied on the well-known decision of the Court of Appeal in Arahanga v R.9 In that case the Court of Appeal observed that the starting point for a burglary of residential premises will generally range between 18 months and two and a half years imprisonment.10 The Judge also referred to decisions of this Court in Ivar v Police and Toluono v Police which adopted starting points in the range of 20 to 22 months for similar offending.11

[12]   The first burglary was carried out at  night  and  therefore ran  the risk  that Mr Tepania would encounter the occupants. He ransacked their address and stole items of sentimental value. Not surprisingly, the occupants were distressed and felt violated when they returned to find they had been burgled.

[13]   The starting point the Judge selected was at the lower end of the range approved by the Court of Appeal in Arahanga. There is therefore no realistic basis on which this Court in its appellate role could say that the Judge erred by selecting a starting point of 20 months imprisonment.

[14]   Further, the selection of a starting point of 18 months rather than 20 months would have resulted in an end sentence approximately one month less than that imposed by the Judge. It follows that the sentence that Mr Tepania received could not realistically be regarded as manifestly excessive even if a starting point of 18 months should have been selected.

[15]This ground of appeal fails as a result.

9      Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.

10 At [78].

11     Ivar v Police [2021] NZHC 493; Toluono v Police [2017] NZHC 809.

Should the Judge have provided a discount for remorse?

[16]   The only evidence before the Judge that suggested Mr Tepania was remorseful for his actions was in a letter tendered at sentencing. He also told the writer of the pre- sentence report that he had written the letter and that it was “not right” for him to have gone onto other people’s property.

[17]   Judges frequently receive letters of this type. The weight to be given to them is very much a matter for the sentencing Judge’s discretion.

[18]   In the present case, the fact that Mr Tepania had numerous previous convictions for offending involving dishonesty, including 13 for burglary, meant that the Judge was entitled to treat his expressions of remorse with some scepticism. They were not corroborated to any material degree in the pre-sentence report and there was no other basis on which the Judge could be satisfied that they were genuine. I am therefore satisfied the Judge did not err by failing to provide a discount for remorse.

Did the Judge err in failing to consider other rehabilitative options?

[19]   Mr Ilango submits that the Judge ought to have given consideration to rehabilitative pathways offered by agencies that offer therapeutic programmes to recidivist offenders. However, it was not possible for the Judge to impose a rehabilitative non-custodial sentence because the end sentence was 25 months imprisonment. He had no option but to impose a sentence of imprisonment.

Result

[20]The appeal against sentence is dismissed.

Lang J