The King v Jade Raymond Mellow

[2025] NZCA 449

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA145/2025

[2025] NZCA 449

BETWEEN

THE KING

Appellant

AND

JADE RAYMOND MELLOW

Respondent

Hearing:	25 August 2025
Court:	Whata, Downs and Isac JJ
Counsel:	B J Thompson for Appellant J W Howell for Respondent
Judgment:	12 September 2025 at 11:00 am

JUDGMENT OF THE COURT

A    The appeal is allowed.

B     The sentence of five years and nine months’ imprisonment is quashed and replaced with a sentence of seven years’ imprisonment with a minimum period of 50 per cent.

REASONS OF THE COURT

(Given by Downs J)

A Crown appeal

[1]        Jade Mellow committed a host of serious offences, including using a firearm against police officers; aggravated burglary; kidnapping; and wounding with intent to injure. Mr Mellow was on bail and subject to release conditions (from prison) when

he committed the offending. The Crown contends Mr Mellow’s five-year, nine-month term of imprisonment is manifestly inadequate, and should be replaced with a seven-year, eight-month term, with a minimum period of 50 per cent.

Principle

^[2]          The Court must allow the appeal if there was an error in the sentence, and a different sentence should be imposed.1 That said, Crown appeals are not for borderline cases.2 Considerations justifying an increase in sentence must be more compelling than those justifying a reduction.3

The offending

[3]The offending is best explained in bite-sized pieces.

Charges 1–4: unlawfully gets into motor vehicle;4 unlawful possession of a firearm;5 and using a firearm against a law enforcement officer (x 2)6

[4]        At approximately 10 pm on 24 April 2024, Mr Mellow was in a stolen car parked on State Highway 30 in Edgecumbe. Mr Mellow had a cut-down .22 calibre rifle, with a magazine capable of holding multiple rounds of ammunition.

[5]        Senior Constable Klaus Klar and Constable David Gillies were on duty, in uniform, and driving a marked police car. They noticed the stolen car, made a U-turn, and parked approximately one car-length behind it.

[6]        Mr Mellow opened the driver’s door.  He fired a shot, then a second. The officers heard a popping sound but did not immediately appreciate what it was. They drove alongside Mr Mellow’s car and turned on “takedown” lights. Mr Mellow

¹      Criminal Procedure Act 2011, s 250(2).

²       R v Cargill [1990] 2 NZLR 138 (CA) at 140, recently cited in McCaslin-Whitehead v R [2023]

NZCA 259 at [29].

³       McCaslin-Whitehead v R, above n 2, at [31], citing R v Wihapi [1976] 1 NZLR 422 at 424; and

R v Donaldson (1997) 14 CRNZ 537 (CA) at 549–550.

⁴      Crimes Act 1961, s 226(2); maximum penalty, two years’ imprisonment.

⁵      Arms Act 1983, s 45(1); maximum penalty, four years’ imprisonment, $5,000 fine.

⁶      Crimes Act, s 198A(1); maximum penalty, 14 years’ imprisonment.

then pointed the firearm at them. The officers drove away, repositioned a few hundred metres away, and alerted police communications.

Charges 5–8: being unlawfully in an enclosed yard;7 burglary;8 wilful damage;9 and unlawfully taking a motor vehicle10

[7]        Mr Mellow ran onto an adjacent property. He told the occupant (who had come outside) he needed help as the police were looking for him. He asked to take her truck. She refused and told him to leave.

[8]        Mr Mellow went down the road and knocked on the door of another home. The occupant came to the door, saw Mr Mellow holding the firearm, and would not let him in. Mr Mellow attempted to get inside by repeatedly hitting a pot plant against the glass ranch slider. He then forced open a garage door, damaging it. The occupant let him in. Mr Mellow grabbed car keys from a kitchen bench, got into the occupant’s car, and drove away.

Charges 9–11: driving while disqualified;11 failing to stop;12 and wilful damage13

[9]        Mr Mellow drove along the highway and turned onto a side road. He stopped short of a cordon and screamed at police. An officer instructed him to remain stopped and get out of the car. Mr Mellow did a U-turn, accelerated heavily, and briefly lost traction. He then deliberately crashed the car through a gated driveway, onto a property with a residential unit and separate home.

⁷      Summary Offences Act 1981, s 29(1)(b); maximum penalty, three months’ imprisonment, $2,000 fine.

⁸      Crimes Act, s 231(1)(a); maximum penalty, 10 years’ imprisonment.

⁹      Summary Offences Act, s 11(1)(a); maximum penalty, three months’ imprisonment, $2,000 fine.

¹⁰    Crimes Act, s 226(1); maximum penalty, seven years’ imprisonment.

¹¹    Land Transport Act 1998, s 32(1)(a) and (4); maximum penalty, two years’ imprisonment, at least

12 months’ disqualification, $6,000 fine.

¹²    Section 52A(1)(a)(ii), (2) and (4); maximum penalty, at least one year but not more than two years disqualification, $10,000 fine.

¹³    Summary Offences Act, s 11(1)(a).

Charges 12–13: aggravated burglary;14 and wounding with intent to injure15

[10]      Mr Mellow got out of the car, taking the firearm. He entered the unit by opening an unlocked door. He confronted its 74-year-old occupant, whom we call A, and demanded his car keys. A refused to provide them. Mr Mellow punched A in the jaw, then struck him to the back of the head with the firearm. A fell to the ground, semi-conscious.

Charge 14: threatening to kill16

[11]      An occupant of the home, whom we call H, awoke to his dog barking. H went toward the unit to investigate. He saw A lying on the floor, inside. Mr Mellow confronted H outside the unit and said, “You better fuck off before I shoot you and your dog”. H returned to his home and locked the door.

Charges 15–17: kidnapping;17 threatening to kill;18 and wilful damage19

[12]      Mr Mellow returned to the unit, dragged A by the arms, and propped him against a bed. Police arrived and asked Mr Mellow to leave the unit peacefully. He responded, “I’ve got a fucking hostage in here”, and “No, you cunts will fucking shoot me”. Thereafter, Mr Mellow detained A for approximately two hours. In this period, he smashed windows and at one point, held the firearm to A’s head, yelling, “I’ll fucking kill him”.

[13]      Ultimately, Mr Mellow surrendered. He said he been on a three-day methamphetamine binge and was on the run from other gang members.

[14]Terse victim statements identify property damage totalling approximately

$6,600; modest physical injury to A; and (presumably ongoing) psychological trauma.

¹⁴    Crimes Act, s 232(1)(a); maximum penalty, 14 years’ imprisonment.

¹⁵    Section 188(2); maximum penalty, seven years’ imprisonment.

¹⁶    Section 306(1)(a); maximum penalty, seven years’ imprisonment.

¹⁷    Section 209(b); maximum penalty, 14 years’ imprisonment.

¹⁸    Section 306(1)(a).

¹⁹    Summary Offences Act, s 11(1)(a).

Earlier unrelated offending: unlawful assembly;20 possession of an offensive weapon;21 and failing to comply with release conditions (x 2)22

[15]      On 6 February 2024, Mr Mellow and fellow Mongrel Mob members encountered two Black Power members at a service station. Mr Mellow armed himself with a hammer, ran toward their car, and opened the driver’s door. But it drove away. Mr Mellow then went into the service station with the hammer, looking for the remaining Black Power member. Mr Mellow left when he realised that person had locked himself into an office.

[16]      In March and April 2024, Mr Mellow twice failed to report to his probation officer.

[17]      Mr Mellow was on bail for both sets of offences when he committed the suite beginning 24 April 2024. In November 2023, Mr Mellow was released from prison for violent and other offending, including male assaults female; two charges of assault; threatening to kill; and reckless driving. All of Mr Mellow’s offending was, therefore, committed while he was subject to release conditions.

Criminal history

[18]      Mr Mellow’s criminal history dates from 2012 to 2024 and comprises more than 90 convictions. It includes:

(a)assault with a weapon (x 2);

(b)assaults person with a blunt instrument;

(c)assaults person, show intent to use weapon;

(d)male assaults female (x 2);

(e)common assault;

²⁰    Crimes Act, s 86(1)(a) and (4); maximum penalty, one year imprisonment.

²¹    Section 202A(4)(a); maximum penalty, three years’ imprisonment.

²²    Sentencing Act 2002, s 96(1); maximum penalty, one year imprisonment, $2,000 fine.

(f)assaults person in family relationship;

(g)presents firearm/restricted weapon at person;

(h)unlawfully carries/possesses firearm/ammunition/explosives (x 2);

(i)possesses offensive weapon (x 4);

(j)aggravated robbery (x 2);

(k)threatens to kill or do grievous bodily harm (x 3); and

(l)unlawfully takes motor vehicle (x 3).

Sentencing reports

[19]      We have the benefit of an alcohol and drug report detailing Mr Mellow’s background. Mr Mellow has no relationship with his father; his mother neglected and beat him; and he began using drugs while young. Mr Mellow has been homeless, suffered abuse in state care, and drifted into gang culture. The report considers Mr Mellow has “limited insight” in relation to the effects of “his ongoing substance abuse” and is dislocated from his Māori heritage. It notes Mr Mellow was diagnosed with ADHD “about seven years ago”.

[20]A similar picture emerges from the pre-sentence report, which adds:

Mr Mellow’s criminal history displays a pattern of self-entitlement, anti-social thinking, substance abuse, lack of victim empathy, antisocial associates, propensity for violence and impulsivity. His pattern of behaviour in prison over the years also reflects his behaviour in the community with multiple misconducts and incidents for assaults on other prison[er]s and abuse shown towards Corrections staff. In the custodial environment he has a history of explosive outbursts, aggressive manner and volatility. Mr Mellow is considered “untreated” as there is no evidence that he has completed any rehabilitative programmes. It is acknowledged that Mr Mellow does engage with assessments for these programmes however is unable to remain in the community long enough to complete the programmes he is assessed for.

Sentencing

[21]      Mr Mellow sought, and received, a sentence indication. Judge M M Mason indicated a starting point of 12 and a half years’ imprisonment; a 25 per cent deduction for guilty pleas, if entered; and a two-month uplift for Mr Mellow’s criminal history. The Judge noted allowances for personal circumstances may be available.

^[22]        Mr Mellow accepted the indication by pleading guilty (within the period prescribed by the Judge). The Judge sentenced accordingly, but also deducted:23

^(a)15 per cent for Mr Mellow’s “horrific” background;24

(b)10 per cent for his methamphetamine addiction, which the Judge considered “had a causative impact” on the offending;25 and

(c)Five per cent for remorse and rehabilitative efforts, noting it was for the Parole Board to determine whether those efforts were “genuine”;26 Mr Mellow told the authors of both reports he had left the Mongrel Mob and was having related tattoos removed.

^[23]        As foreshadowed, this produced a sentence of five years and nine months’ imprisonment. The Judge rejected a Crown contention she should impose a minimum period of imprisonment.27

A précis of the competing cases

[24]      On behalf of the Crown, Mr Thompson contends the sentence is manifestly inadequate, thus appellate intervention required.  Mr Thompson said the “easily justified” starting point was compromised by unduly generous discounts,

²³    R v Mellow [2025] NZDC 2882.

²⁴    At [18]–[20].

²⁵ At [22].

²⁶    At [24]–[25].

²⁷ At [25].

which failed to respect the nature and seriousness of the offending, and related objectives of denunciation, deterrence, and community protection:

(a)No discount should have been allowed for addiction as the offending was committed following the voluntary consumption of methamphetamine, and s 9(3) of the Sentencing Act 2002 precludes that from constituting a mitigating factor.

(b)Mr Mellow’s expressions of remorse were already provided for by the full credit for his guilty pleas, and Mr Mellow’s alleged departure from the Mongrel Mob was based on self-reporting only.

[25]      Mr Thompson said the nature and extent of Mr Mellow’s criminal history meant the two-month uplift was too small; the uplift should have been not less than six months.

[26]      Mr Thompson said a minimum period of imprisonment of 50 per cent was required, primarily to protect the community from Mr Mellow’s increasingly erratic, violent, and dangerous offending.

[27]      On behalf of Mr Mellow, Mr Howell argues the sentence does not warrant the Court’s intervention. Mr Howell acknowledged the seriousness of the offending. He, however, emphasised:

(a)the discretion afforded to a sentencing judge; and

(b)Mr Mellow’s personal circumstances, as highlighted by the reports.

[28]      Mr Howell said Mr Mellow’s addiction had some causal connection to the offending, at least as a background factor, particularly as the offending was impulsive rather than premeditated, and illustrative of Mr Mellow’s disordered thinking.

[29]      Mr Howell argued it was not open to the Crown to revisit the two-month uplift as it had not contested this aspect during the sentence indication process.

[30]      Finally, Mr Howell said a minimum period of imprisonment was not warranted as risk would be addressed adequately by the Parole Board.

Analysis

[31]We address the appeal in seven points.

^[32]        First, discounts based on personal mitigating factors may be constrained by offence seriousness. In Berkland v R, the Supreme Court observed:28

The relevance of an offender’s background does not in any way reduce the importance of acknowledging, through sentences, the harm caused by an offender, and particularly the harm to victims. Indeed, provision is also made for the court to hear the perspectives of victims through victim impact statements. There are other sentencing purposes and principles such as deterrence, denunciation and community protection. Where offending is particularly serious these principles will usually be more powerfully engaged. Logically, there will come a point where background, even if it has contributed to the offending, can have no impact. But that will be a matter for careful consideration on the facts of the offence and the offender.

^[33]        Similar observations are evident in this Court’s decision in Carr v R,29 and in the High Court decision in Solicitor-General v Heta.30

^[34]        Second, discounts often overlap. Consequently, this Court has warned of the “risk that some statutory purposes of sentencing can be lost sight of when [discounts] are treated separately and simply tallied”.31 Because of this, it may be necessary to stand back and consider the global effect of discounts in the evaluation of an appropriate sentence, particularly if the offending is serious.32

[35]      Third, Mr Mellow’s case engages these principles for reasons that are largely self-evident. Among other offences, Mr Mellow used a firearm against police officers in the execution of duty; broke into two homes with the same firearm; used the weapon to assault and detain an older victim; and to threaten both him and another with death. As we have explained, Mr Mellow was then on bail for gang-related (and other)

²⁸    Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [94] (footnotes omitted).

²⁹    Carr v R [2020] NZCA 357 at [66].

³⁰    Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [50].

³¹    Dickey v R [2023] NZCA 2, [2023] 2 NZLR 405 at [175].

³²    See, for example, McCaslin-Whitehead v R, above n 2, at [61]–[66].

offending, and subject to release conditions in connection with an earlier sentence of imprisonment for offending encompassing serious violence.

[36]      Fourth, we do not share the Crown’s view that Mr Mellow’s drug addiction is irrelevant for sentencing purposes. Rather, we see his addiction as a relevant background factor, particularly given his early exposure to drugs and the likelihood his deprived upbringing contributed to his drug use and poor life choices. Having said that, we see these factors as having reduced potency in this case because of the nature of the offending.  Put simply, Mr Mellow’s firearms-related offending — the pre-eminent feature of this case — strongly invokes countervailing sentencing considerations, most obviously, community protection.33  Relatedly, the fact Mr Mellow was under the influence of methamphetamine at the time of the offending is not, pursuant to s 9(3), mitigating. But again, this is not quite the same thing as treating addiction as irrelevant to sentencing.

[37]      Fifth, we conclude the Judge erred in not confining discounts for personal mitigating factors to 20 rather than 30 per cent. Much of our reasoning is already apparent and concerns offence seriousness; related sentencing imperatives of denunciation, deterrence, and community protection; and the overlapping nature of the discounts. We note an identical conclusion was reached in McCaslin-Whitehead v R, in which this Court closely analysed the case law and held “the 30 per cent discount allowed by the District Court Judge was in error”.34 As in that case, which also involved a Crown appeal, we employ a “conservative approach”35 in identifying 20 per cent rather than a lesser figure, as that available to the Judge. Given all this, it is unnecessary to address whether the Judge erred in providing an allowance for remorse and rehabilitative prospects.

[38]      Sixth, we are not persuaded the Judge erred in relation to the (two-month) uplift because the figure identified by the Crown on appeal is not greatly different to that employed by the Judge. Put another way, we see this aspect as an available instance of sentencing discretion, albeit one admittedly favourable to Mr Mellow, given the

³³    See Sentencing Act, s 7(1)(g).

³⁴    McCaslin-Whitehead v R, above n 2, at [59].

³⁵ At [59].

strictures of a Crown sentence appeal. This means it is also unnecessary to address Mr Howell’s submission at [29].

^[39]        Seventh, we are, however, persuaded a minimum period of imprisonment should have been imposed by the Judge. As is well known, s 86 of the Sentencing Act permits the imposition of a minimum period on a determinate sentence of more than two years’ imprisonment if the Court is satisfied the usual default period (of one-third) is insufficient for any or all of:36

(a)holding the offender accountable for the harm done to the victim and the community by the offending;

(b)denouncing the conduct in which the offender was involved;

(c)deterring the offender or other persons from committing the same or a similar offence; and

(d)protecting the community from the offender.

[40]      All purposes are engaged. The offending is particularly serious, including because it risked grave harm. Use of a firearm against a police officer is a matter of legitimate community concern. So too the taking of a hostage. Mr Mellow’s offending encompassed both. Mr Mellow’s criminal history is extensive, and as observed earlier, includes violent and firearms offending. Mr Mellow has, thus far, not completed any meaningful rehabilitation. The pre-sentence report describes him as “untreated”, and the alcohol and drug report says Mr Mellow has limited insight into the effect his ongoing substance abuse has on his behaviour. We agree with Mr Thompson that Mr Mellow’s offending appears to be escalating in seriousness and dangerousness. It is, therefore, difficult to conceive of a more obvious case for a minimum period of imprisonment. This conclusion addresses Mr Howell’s submission that risk is better addressed by the Parole Board. But we confine the minimum period to 50 per cent in recognition of Mr Mellow’s age (he was 31 at the time of offending) and the fact this is a Crown appeal.

³⁶    Sentencing Act, s 86(2).

Result

[41]The appeal is allowed.

^[42]        The sentence of five years and nine months’ imprisonment is quashed and replaced with a sentence of seven years’ imprisonment with a minimum period of 50 per cent.37

Solicitors:

Crown Law Office | Te Tari Ture o te Karauna, Wellington for Appellant.

³⁷  Our methodology would produce a sentence of seven years and two weeks’ imprisonment, but we cap the sentence at seven years in acknowledgement of the maximum penalty for the wounding, which the Judge treated as one of the leading offences.