Tihema v Police - [2025] NZHC 92

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-667

[2025] NZHC 92

BETWEEN
JUNE TIHEMA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 3 February 2025

Appearances:

A Zhao for Appellant

W Sudhakar for Respondent

Judgment:

7 February 2025

JUDGMENT OF GORDON J

This judgment was delivered by me on Friday, 7 February 2025 at 11:45 am.

Registrar/Deputy Registrar

Solicitors: Public Defence Service (A Zhao), Auckland

Meredith Connell (Office of the Crown Solicitor), Auckland

TIHEMA v NEW ZEALAND POLICE [2025] NZHC 92 [7 February 2025]

Introduction

[1] The appellant, June Tihema, was sentenced to two years and 11 months’ imprisonment by Judge C M Ryan in the Auckland District Court on 25 October 2024,1 having pleaded guilty to the following charges:

(a)Burglary (x 2);2

(b)Unlawfully being in an enclosed yard (x 2);3

(c)Dishonestly using a credit card (x 3);4 and

(d)Breach of home detention conditions.5

[2] Ms Tihema now appeals her sentence. She says that the end sentence imposed was manifestly excessive because:

(a)the Judge should have given a discount for remorse; and

(b)the Judge similarly erred in not giving a discount for cultural and background factors.

[3] Ms Tihema does not take issue with the starting point nor any of the uplifts or other discounts.

[4] The respondent’s position is that the Judge was correct not to give discounts for either of these two factors and the end sentence was not manifestly excessive. The respondent accordingly opposes the appeal.

1      Police v Tihema [2024] NZDC 26516.
2      Crimes Act 1961, s 231; maximum penalty 10 years’ imprisonment
3      Summary Offences Act 1981, s 29(1)(b); Maximum penalty three months' imprisonment or a fine not exceeding $2,000.
4      Crimes Act 1961 s 228(1)(b); maximum penalty seven years’ imprisonment
5      Sentencing Act 202, s 80S; maximum penalty of one year’s imprisonment.

The offending

[5] As noted by Judge Ryan, the summaries of facts are rather confusing due to discrepancies in dates and details as between the summaries and charges. Nevertheless, it appears Ms Tihema’s offending was committed between December 2023 and February 2024 as follows:

(a)The first charge was a breach of home detention conditions on 20 December 2023 when Ms Tihema left her home detention address at the Odyssey House rehabilitation facility without an approved absence and failed to submit to EM monitoring.

(b)The second and third charges were in relation to one incident on 20 January 2024. At 12:08 pm, Ms Tihema entered a residential address in Ellerslie through an open front door. She went into the front bedroom and took a wallet containing $400, and a credit card. She then used the credit card to a value of $97.92. Ms Tihema was charged with burglary and unlawfully using a credit card in relation to this incident.

(c)The fourth and fifth charges were in relation to an incident on 23 January 2024. At 9:08 am, Ms Tihema entered the Padma Buddhist Institute through an unlocked back door. She took a handbag…

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 92
Decision Date: 7 February 2025

CaseChat Overview and Summary

June Tihema appeals her sentence imposed by Judge C M Ryan in the Auckland District Court on 25 October 2024, having pleaded guilty to multiple charges including burglary, unlawfully being in an enclosed yard, and dishonestly using a credit card. The appeal focuses on the sentence's excessiveness, with Tihema arguing that the Judge should have discounted her sentence for remorse and cultural background factors. The Crown opposes the appeal, asserting that the Judge correctly did not discount the sentence and that the end sentence was not manifestly excessive.

The legal issues in this case centre on whether the Judge erred in not giving discounts for remorse and cultural background factors, and whether the end sentence of two years and 11 months' imprisonment was manifestly excessive. The appeal court must consider whether there was an error in the sentence imposed and whether the sentence is within the range that can be properly justified by accepted sentencing principles.

The court examined whether the Judge should have given discounts for remorse and cultural background factors. The court found that the Judge was entitled to consider the lack of genuine remorse given Tihema's extensive history of dishonesty and failure to comply with home detention. Regarding the cultural report, the court found it was open to the Judge not to give any weight to the self-reported information, especially since there was no corroboration. The court also noted that any background factors were intrinsically linked to Tihema’s addiction, for which she had already received a discount.

Finally, the court assessed whether the end sentence was manifestly excessive. The court found that even if the Judge should have given discounts for remorse and cultural factors, the end sentence was not manifestly excessive. The court noted that the starting point and uplifts for prior offending were within the appropriate range and the sentence was lenient given the circumstances.

The appeal is dismissed. The sentence of two years and 11 months' imprisonment is not manifestly excessive.

Orders