Topper v The King
[2025] NZHC 3055
•15 October 2025
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2025-483-36
[2025] NZHC 3055
BETWEEN MORGANA TOPFER
Appellant
AND
THE KING
Respondent
Hearing: 14 October 2025 Appearances:
R J Leith for Appellant
K D Turner for Respondent
Judgment:
15 October 2025
Reissued:
21 October 2025
JUDGMENT OF ISAC J
[Sentence appeal]
Introduction
[1] Ms Morgana Topfer was sentenced to 27 months’ imprisonment by Judge Wiltens for aggravated burglary and two driving-related charges.1 She now appeals sentence saying the adopted starting point was too high and insufficient credit was given for addiction and rehabilitative prospects.
1 R v Topfer [2025] NZDC 18822 [Sentencing notes]. Aggravated burglary, Crimes Act 1961, s 232(1)(a). Maximum penalty 14 years’ imprisonment. Driving while disqualified, Land Transport Act 1998, ss 32(1)(a) and 32(4). Maximum penalty two years’ imprisonment, $6,000 fine. Failing to stop, Land Transport Act 1998, ss 52A(1)(a)(ii) and 114(2). Maximum penalty $10,000 fine.
TOPFER v R [2025] NZHC 3055 [15 October 2025]
The offending
[2] Ms Topfer had an argument with her mother over the use of her mother’s vehicle. She left home walking the streets looking for a car to steal. She was carrying a backpack containing a number of kitchen utensils, including a large kitchen knife.
[3] The appellant then noticed the victim’s vehicle parked on the street and that a window of the victim’s house had been partially left open. She took the knife from her backpack and climbed through the open window. She then confronted the victim— who had fallen asleep in her lounge—with the knife, demanding the keys to the victim’s car and telling her not to call the police. The victim retrieved her keys from the kitchen and handed them over. As the appellant left, she took a hammer from the address and drove off in the victim’s vehicle. The victim was very frightened by what had occurred but not physically injured.
[4] Ms Topfer subsequently picked up two friends and drove them back to Whanganui. On the way she was signalled to stop by Police but accelerated in an attempt to evade arrest, stopping only when her friends urged her to do so.
Impact on victim
[5] A brief but moving victim impact statement sets out the harm caused by the offending. The victim is 63 years of age and the sole caregiver for her husband, who is unwell. She was awoken in her living room by the appellant brandishing a knife and yelling at her. She had been attacked in the 1980s while living in Australia and the offending has brought back her memories of that earlier trauma.
The appellant’s background
[6] The appellant is 32 years old, of Te Whānau-ā-Apanui iwi. She has a five-year-old son, who is currently in the custody of her ex-partner, but she had regular contact with him before she was imprisoned. Their relationship is described by the appellant’s mother as a very good one.
[7] Ms Topfer has 15 previous convictions and prior to the current matters had never been imprisoned. Most of the offences are anti-social and fall to the lower end
of the range. She has convictions in 2018 and 2024 for drug- and drink-driving, and three convictions for driving while disqualified between 2018 and 2021. Four of her convictions are for breaching conditions of sentence. There are three very historic convictions for assaults on Police, which are her only previous convictions involving violence.
[8] An alcohol and drug report that was not before the District Court was supplied to this Court on appeal.2 According to the report, Ms Topfer has been engaging with alcohol and drug services for the past six years and prior to her imprisonment she met the criteria for a severe substance use disorder.3 She was exposed to drugs as a child, and started using methamphetamine at 15. She describes herself as a “binge-user” of drugs. This description is consistent with her criminal history, which reveals long periods when she has not come before the courts.
[9] The AOD report writer also records that the appellant is waiting on a psychological report and has had ACC counselling for historical abuse. There is also a strong indication that the current offending, committed while the appellant was under the influence of drugs, is causally connected to past trauma.
[10] The report writer considered Ms Topfer has a “deep desire for change” so she can improve her wellbeing and continue to develop a relationship with her son. Ms Topfer would benefit from attendance at a live-in rehabilitation facility, one of which would permit contact between the appellant and her son.
[11] The pre-sentence report provided to the District Court suggested the appellant’s likelihood of re-offending was medium. The appellant was said to have displayed little insight into her behaviour, and while saying she “feels bad” for the victim, she did not comprehend the victim’s feelings. Nevertheless, a community-based rehabilitative sentence was described as “necessary”. A pro-social address is available. The appellant’s ability to comply with a community-based sentence is assessed as
2 An application to adduce fresh evidence was not formally made. However, the respondent does not oppose admission of the report and I am satisfied it is relevant, fresh and cogent.
3 She has also previously graduated from the Salvation Army Bridge program in November 2023 saying she was addicted to tramadol and opioids.
moderate, although the appellant is noted to have successfully completed a sentence of supervision in 2019.
Decision under appeal
[12] After setting out the offending Judge Wiltens addressed the starting point, mitigating factors and end sentence:
[14] As I say, the driving matters are inconsequential by way of comparison to the lead offence which is the aggravated burglary. The aggravated burglary is sufficiently serious to warrant a start point, as low as I can go, of three and a half years' imprisonment.
[15] I take into account the fact that you have pleaded guilty and that you are remorseful. I accept your letter of remorse and the statements that you have made in court today and I can take into account that you pleaded guilty at a prompt stage.
[16] The end result here is one where home detention is not available for you. The end result is 27 months' jail. The time that you have served towards that will count to reduce that, but the Parole Board will have to look at release conditions for you and no doubt they will want you to do some courses dealing with your addictions which is the background to this offending and which you desperately need.
[17] So 27 months' imprisonment for the aggravated burglary. There cannot be reparation because you have not got any money and you are not in a position to earn it.
Approach on appeal
[13] The Court must allow an appeal if it is satisfied that, for any reason, there is a material error in the sentence and a different sentence should be imposed.4 In most sentence appeals the appeal court will not intervene unless the sentence is manifestly excessive. Whether the sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached.5 Sentencing is not an exact science, and an appellate court does not start afresh nor simply substitute its own opinion for that of the original decision-maker.6
4 Criminal Procedure Act 2011, s 250; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
5 Tutakangahau v R, above n 4, at [30]–[36].
6 At [30] and [35].
Was the starting point too high?
[14] Mr Leith for the appellant refers to a range of cases to suggest the starting point of three and a half years was excessive. In counsel’s submission, a starting point no more than two years’ imprisonment ought to have been adopted.7 In the present case Ms Topfer acted alone, made no “ongoing” threats, and never assaulted the victim.
[15] The respondent submits the cases relied on by the appellant can be distinguished. In Warren v Police, the starting point of two years’ imprisonment took into account the appellant’s youth, rehabilitative prospects and employment. Aramiz v R involved a starting point of only 15 months, but involved a charge under s 232(2) of the Crimes Act 1961 which carries a five-year maximum penalty. Finally in Norton v R, where a starting point of two years and six months was adopted, the sentencing judge considered the offending was more serious than an aggravated robbery in the street but less serious than that involving a home invasion. The respondent also notes that on a strict application of the sentencing principles set out in Mako, a starting point of up to 10 years may have been available.8 The starting point should also be considered against the fact no uplift was adopted for the additional driving charges.
[16] There is no tariff decision for aggravated burglary. However, the principles articulated in R v Mako (which concerned sentencing for aggravated robbery) may equally apply to aggravated burglary charges.9 I consider the current offending engages at least two of the factors set out in the Mako guidelines, including presence of a weapon, and the fact that the offending occurred in the victim’s own home. However, missing from the more serious cases are the presence of overt threats to the victim (beyond the presence of a weapon), gratuitous damage to a dwelling in the course of carrying out the burglary, or violence. In my view, Ms Topfer’s offending falls well toward the lower end of the range of offending encompassed by the charge.
7 Warren v Police HC Greymouth, CRI-2011-418-7, 17 November 2011; Aramiz v R [2020] NZHC 78; Norton v R [2012] NZCA 334; and TeHau v R [2013] NZCA 431.
8 R v Mako [2000] 2 NZLR 170 (CA).
9 Dey v R [2021] NZCA 342, at [42].
[17]I consider the most helpful cases in assessing the starting point are McRae v R,
Dey v R, Warren v Police, Aramiz v R and Norton v R.10
[18] In McRae v R, the Court of Appeal found a starting point of two years and three months’ imprisonment was “well within range” on a charge of aggravated burglary.11 The appellant and her sister, accompanied by a male associate, drove to the victims’ property at midnight. The appellant was armed with a small axe or hatchet, and the co-offender was armed with “a metal or wooden pipe or pole”. After what appears to be an angry and threatening altercation with other occupants of the home, a stand-off occurred with the victims over a missing vehicle. Eventually the offenders left the house, breaking a vehicle utility light on one of the occupant’s vehicles on the way out. McRae involved aggravating features that do not appear in the present case: multiple offenders; a prolonged period of home invasion and intimidation; and damage to property.
[19] In Dey v R, the Court of Appeal upheld a starting point of three years’ imprisonment for aggravated burglary.12 While heavily intoxicated, the appellant entered a neighbouring flat where the victim was living. He was carrying a 15-centimetre knife. He knocked on the victim’s bedroom door and, when the victim opened it, the appellant tried to push his way into the bedroom. As the victim resisted, Mr Dey raised the knife above his shoulder and tried unsuccessfully to strike the victim with it. The victim was eventually able to shut the appellant outside his bedroom, but the appellant continued shouting through the door, threatening that he would not leave. Again, Dey involved aggravating features that are not found here: a prolonged period of home invasion; overt threats to the victim; and an attempt to use the knife.
[20] In Aramiz v R, this Court adopted a starting point of 16 months’ imprisonment before uplifts for additional offending. The appellant entered the victim’s home while they were asleep carrying a hammer. He gained entry by smashing a glass pane in a door. Frightened, the victim opened the door and attempted to leave the property. As he
10 McRae v R [2024] NZCA 324; Dey v R, above n 9; Warren v Police, above n 7; Aramiz v R, above n 7; Norton v R, above n 7.
11 At [20].
12 The District Court Judge considered that absent addiction and mental health issues, a starting point of three and a half to four years’ imprisonment would have been appropriate, which the Court of Appeal considered remained in range.
did so, the appellant pushed the victim to the floor, threatening to kill him. He then attempted to drag the victim back inside the house, but the victim was able to escape. Again, aggravating features missing from the present case were damage to property, an assault on the victim, and a threat to kill. In addition, while Crown counsel suggested the case involved a lesser charge under s 232(2), the judgment refers to a charge for aggravated burglary. The reference to a charge under s 232(2) appears in a footnote and is likely an error.
[21] In Warren v Police, this Court did not interfere with a two-year starting point adopted by a sentencing judge on a charge of aggravated burglary. The appellant, accompanied by five associates, gained entry to the victim’s home. Mr Warren entered the victim’s bedroom and began shouting abuse and threats. An assault followed, and then a search of the victim’s room, during which the victim was dragged from his bed by the appellant and then struck in the head with a drawer with such force that it broke into its component parts. The assault continued with the appellant striking the victim again with a second drawer, resulting in injury to the victim’s head, arms, neck, and legs.
[22] Finally, in Norton v R, the Court of Appeal approved a starting point of two and half years’ imprisonment. The appellant, accompanied by an older male co-offender, went to the victim’s flat. Each was armed, with a hammer and a piece of wood respectively. Once inside the victim’s bedroom, they made a demand for compensation for damage to a vehicle they claimed had been caused by the victim. They rummaged through the victim’s property, while the appellant brandished a hammer. During the episode the victim was hit on the head with the piece of wood, receiving “nasty head injuries”. A further altercation then occurred outside the property involving the same victim.
[23] These cases suggest the starting point adopted by the District Court of three and a half years’ imprisonment was materially too high. I consider a starting point in the range of two years’ to two years and six months’ imprisonment ought to have been adopted given the lack of overt threats, assault, damage to property or a sustained period of home invasion.
Was sufficient credit provided for personal mitigating factors?
[24] Counsel for Ms Topfer submits that additional credit ought to have been provided to reflect the causative role of addiction in the offending and the appellant’s rehabilitative prospects, and to acknowledge the impact of the sentence of imprisonment on the appellant’s five-year-old, high-functioning autistic child. The appellant points to historical serious trauma for which the appellant is receiving assistance, its relationship to her addiction, and the uncharacteristic and serious nature of the current offending, suggestive of a relapse. These factors should have resulted in further discounts. Ultimately, a sentence focussed on rehabilitation and treatment of the underlying causes of the offending was the appropriate outcome. A sentence of imprisonment was therefore manifestly excessive.
[25] For the respondent, Ms Turner argues the Judge provided a generous discount for remorse, noting that the appellant addressed the victim from the dock in a manner the Judge found should sound in a discrete discount of 11 per cent on the starting point. Counsel argued addiction, however, was not causatively linked to the offending and the need for rehabilitation can be considered by the Parole Board on release. Ms Turner accepted that an additional discount was available to reflect the impact of a sentence of imprisonment on the appellant’s son. Overall, the Crown submits the end sentence was not manifestly excessive.
[26] In Berkland v R and Zhang v R, the Supreme Court and Court of Appeal respectively recognised the causative role of addiction in offending, and its importance in the assessment of culpability.13 Further, where an offender has genuine rehabilitative prospects, it is appropriate to acknowledge these considerations in the sentencing process.
[27] Judge Wiltens did not have available to him the alcohol and drug report provided to this Court on appeal. It identifies the link between the appellant’s struggles with addiction and childhood trauma. In combination, a discrete reduction in the
13 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [109]; Zhang v R [2019] NZCA 507,
[2019] 3 NZLR 648 at [147].
starting point between 10–15 per cent was called for to reflect the causative role of trauma and addiction, as well as Ms Topfer’s rehabilitative prospects.
[28] In addition, the effect of parental incarceration on a defendant’s children must be taken into account under s 8(h) and (i) of the Sentencing Act 2002. The Supreme Court in Phillip v R has said that such reductions should not be considered “rare” and that a consideration of all the relevant circumstances is required, which must include the child’s interests. In addition, such discounts are not confined to offenders who are the primary caregiver.14 The range of discounts applied appear to range between 2.5 and 10 per cent, with a higher discount warranted where an offender had custody of the child. In Ah Tong v R, a 10 per cent discount was applied given the child’s mother was already imprisoned, meaning that the appellant’s own imprisonment would have significant adverse implications on the child.15
[29] Stepping back and assessing the appropriate reductions to reflect these additional personal mitigating factors, an additional total discount of 15 per cent was, in my view, called for.
[30] Given the adjusted starting point and the additional discounts for mitigating factors I have identified, I am satisfied the end sentence of two years and three months’ imprisonment was manifestly excessive.
What is the appropriate sentence?
[31] Adopting a starting point of two years and three months’ imprisonment, applying the reductions identified by the Judge and those above results in an indicated end sentence of 14 months’ imprisonment. As a sentence of short duration, it is necessary to consider whether the sentence of imprisonment ought to be commuted to one of home detention.
[32] The following factors have led me to conclude that a community-based sentence, focussed on the appellant’s rehabilitation, is the least restrictive sentencing outcome required in the circumstances:
14 Phillip v R [2022] NZSC 149 at [53]–[56].
15 Ah Tong v R [2024] NZCA 144 at [15].
(a)the fact that the present offending, while very serious, is uncharacteristic and a significant escalation;
(b)the appellant’s insight into her addiction, her desire to engage in further rehabilitation, and the causative role of her addiction in the offending;
(c)the role of the appellant in her son’s life.
[33] In sentencing the appellant, it is necessary to acknowledge that she has already served an effective sentence of 10 months’ imprisonment. Accordingly:
(a)The sentence of imprisonment imposed by the District Court is set aside.
(b)In its place, the appellant is sentenced to two months’ home detention on the charge of aggravated burglary at the address identified in the pre-sentence report. I impose the conditions identified in that report.
(c)Ms Topfer will be subject to the post-detention conditions recommended in the pre-sentence report, which will expire 12 months from the detention end date.
(d)The appellant is convicted and discharged on the driving charges given time served.
Isac J
Solicitors:
Crown Solicitor, Whanganui for Respondent
0
10
0