Tuari v Police

[2025] NZHC 928

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2025-441-02

[2025] NZHC 928

BETWEEN

MISTY LEE JILL TUARI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	9 April 2025
Appearances:	W R Hawkins for Appellant M Mitchell for Respondent
Judgment:	15 April 2025

JUDGMENT OF McHERRON J

(Appeal against Sentence)

Introduction

[1]                 Misty Tuari was sentenced to 35 months’ imprisonment, on 9 December 2024, by Judge Earwaker in the Napier District Court.1

[2]                 Ms Tuari appeals against this sentence on the basis that it was manifestly excessive. For the reasons below, I dismiss the appeal.

The facts

[3]                 The sentence under appeal relates to 31 new offences and eight offences requiring resentencing, following Ms Tuari’s breach of the terms of her sentence of intensive supervision commencing on 26 January 2024 when Ms Tuari failed to report.

1      Department of Corrections & New Zealand Police v Tuari [2025] NZDC 32116 [Judgment under appeal].

TUARI v NEW ZEALAND POLICE [2025] NZHC 928 [15 April 2025]

[4]                 The eight charges requiring resentencing include one charge of shoplifting of goods valued at around $300,2 one charge of wilful damage,3 one charge of being unlawfully in an enclosed yard,4 one charge of burglary, two charges of theft over

$1,000, and a breach of release conditions.5 For these offences, Ms Tuari was originally sentenced to 18 months’ intensive supervision by Judge Mika on 17 January 2024.6

[5]                 The 31 subsequent offences include seven charges of theft over $1,000,7 five charges of theft between $500 and $1,000,8 11 charges of theft under $500,9 one breach of intensive supervision,10 three charges of speaking threateningly,11 one charge of obstructing police,12 one charge of wilful damage, one charge of possession of methamphetamine,13 and one charge of aggravated assault.14 A more detailed summary of the circumstances of Ms Tuari’s offending is as follows:15

(a)On 26 January 2024, she breached a condition of her intensive supervision by failing to report to a probation office as directed.

(b)On  6  February  2024,  with  others,  she  stole  fragrances  valued  at

$1,116.92 from Farmers Hastings, and was charged with theft between

$500 and $1,000.

(c)The following day, Ms Tuari and another person stole from Kmart.

2      Crimes Act 1961, ss 219 and 223(d): maximum penalty of 3 months’ imprisonment.

3      Summary Offences Act 1981, s 11(1)(a): maximum penalty of 3 months’ imprisonment or a fine of $2,000.

4      Section 29(1)(b): maximum penalty of 3 months’ imprisonment or a fine of $2,000.

5      As summarised in Judge Mika’s decision of 17 January 2024: Police v Tuari [2024] NZDC 29054 at [2].

6      Police v Tuari, above n 5.

7      Crimes Act 1961, ss 219 and 223(b): maximum penalty of 7 years’ imprisonment.

8      Sections 219 and 223(c): maximum penalty of 1 year’s imprisonment.

9      Sections 219 and 223(d): maximum penalty of 3 months’ imprisonment.

10     In particular, failing to report to a probation officer without reasonable excuse: Sentencing Act 2002, s 70A(a): maximum penalty of 6 month’s imprisonment or a fine of $1,500.

11     Summary Offences Act 1981, s 21(1)(a): maximum penalty of 3 months’ imprisonment or a fine of $2,000.

12     Section 23(a): 3 months’ imprisonment or a fine of $2,000.

13     Misuse of Drugs Act 1975, s 7(1)(a) and (2): maximum penalty of 6 months’ imprisonment or a fine of $1,000.

14     Crimes Act 1961, s 192(1)(b): maximum penalty of 3 years’ imprisonment.

15     Judgment under appeal, above n 1, at [5]–[6]; summary of facts.

(d)On 9 February 2024, Ms Tuari stole meat products valued at $184.50 from Countdown, giving rise to one charge of theft under $500.

(e)On 12 February 2024, she stole $450 worth of property from Super Cheap  Auto  in  Napier  and  $246.77  worth  of  property   from Baby Factory in Napier, giving rise to two charges of theft under $500.

(f)On 17 February 2024, with another person, Ms Tuari stole assorted items valued at $660 from Kmart and was charged with theft between

$500 and $1,000.

(g)On 18 February 2024, Ms Tuari and another person stole clothing worth

$493.96 from Rebel Sport in Hastings.

(h)On 19 February 2024, Ms Tuari and another person stole $1,738 worth of property from Bunnings Hastings.

(i)On 20 February 2024, she stole $38.90 worth of property from Creagh Street Dairy.

(j)The next day, on 21 February 2024, Ms Tuari and another person stole

$1,395.21 worth of items from Rebel Sport Napier.

(k)On 22 February 2024, Ms Tuari (with others) stole property valued at

$1,072.73  from  Farmers  Napier  and  was  charged  with  theft  over

$1,000.

(l)The following day, she stole health and beauty products valued at

$369.39 from Four Square Taradale, giving rise to another charge of theft under $500. Also on 23 February, Ms Tuari stole items valued at

$374.84 from Pak n Save Tamatea.

(m)On 25 February 2024, Ms Tuari stole petrol and confectionary valued at $138.12 from BP Greenmeadows. On the same day, Ms Tuari was at Briscoes in Napier with another person and was recognised as

someone who had taken items previously. She was asked to leave, became verbally aggressive to the loss prevention officer calling him a “fucking faggot” several times (for this, Ms Tuari was convicted and discharged).16

(n)On 27 February 2024, Ms Tuari and another person shoplifted items worth $624.90 from Toy World in Napier and exited without paying for them. When a staff member attempted to obtain Ms Tuari’s vehicle registration number, she threatened the staff member by telling them to “fuck off” or she would “fucking stab them”. This incident resulted in a further charge of theft and speaking threateningly.

(o)On 2 March 2024, Ms Tuari stole items worth $499.99 from Countdown Napier with another person. On the same day she stole a Honda EU101 Generator worth $1,800 from the Stihl Shop Napier, giving rise to a further charge of theft over $1,000.

(p)On 4 March 2024, Ms Tuari stole several rings valued at $1,502.40 from Ace Pawn Brokers.

(q)On 6 March 2024, with another person, Ms Tuari stole up to 12 bags worth $3,704 from Strand Bags, Napier.

(r)On 6 March 2024, with another person, Ms Tuari stole property valued in excess of $1,659.96 from Macpac Napier.

(s)On 8 March 2024, Ms Tuari tried on sunglasses at Spex Eyewear in Napier and took them without paying. The property taken was worth

$1,430 and gives rise to a further charge of theft over $1,000.

(t)On 9 March 2024, Ms Tuari shoplifted candles from Nood in Napier. She was subsequently a passenger in a vehicle fleeing police and

16     Summary Offences Act 1981, s 4(1)(c)(i): maximum penalty of a $1,000 fine; and Judgment under appeal, above n 1, at [5](n) and [24](j).

threatened to punch the victim in the head if she stopped. Police subsequently stopped the car. Ms Tuari was asked to unlock the doors, but kept locking them and trying to prevent police from getting in. This incident gave rise to charges of speaking threateningly, obstructing the police and shoplifting.

[6]                 After these events, Ms Tuari was remanded in custody, before being given EM bail to Red Door on 5 August 2024.17 However, on 8 August, Ms Tuari cut off her electronic monitoring bracelet, giving rise to another wilful damage charge.

[7]                 Subsequently, on 25 August 2024, Ms Tuari stole beauty  products  from New World Stokes Valley, giving rise to one charge of theft under $500. In committing that offence, Ms Tuari was challenged by a staff member and struck the staff member’s body with her right shoulder, allowing her to escape, and giving rise to the charge of aggravated assault. Ms Tuari then went to Woolworths Maidstone, Upper Hutt and stole a trolley of items, valued at $557.20, giving rise to a charge of theft between

$500 and $1,000. She was then apprehended, and 0.1g of methamphetamine was found in her possession, giving rise to the charge of possession of methamphetamine. In explaining this incident, Ms Tuari stated that, since leaving prison she has had barely had any money and needed to shoplift for food and hygiene products.

[8]                 In addition to those charges, the Judge also resentenced Ms Tuari on the eight charges arising from offending in May to August 2023, for which Judge Mika had originally sentenced her to intensive supervision.18 The primary context for those charges was as follows:

(a)On 7 June 2023, Ms Tuari stole a handbag by approaching a victim on the footpath in Newtown, grabbing the handbag and hopping into a nearby car, which drove off.19

17 At [6].

18     Police v Tuari, above n 5.

19     Judgment under appeal, above n 1, at [5].

(b)On 13 July 2023, Ms Tuari took goods estimated to be worth $300 from Countdown in Lower Hutt. She also shoplifted items worth around the same amount from New World Newtown.20

(c)On 12 August 2023, Ms Tuari climbed over the fence of a company depot, and cut through the canvas of a side of a truck parked inside. She was removing Gib board and stacking it outside when police located her and another in the back of the truck.21 $40,000 worth of damage was claimed as a result of this incident.

District Court sentencing decision

[9]                 Judge Earwaker’s decision acknowledged the purposes and principles of sentencing and considered that, of these, the need to hold Ms Tuari accountable for the harm she had done to the victims of her offending was most relevant.22 The Judge considered a deterrent message was needed to try and discourage people from theft.23 He noted Ms Tuari’s previous opportunities for rehabilitation. The Judge recognised the need for consistent sentencing and that he must impose the least restrictive outcome appropriate in the circumstances.24 The Judge also considered various pre- sentence reports, an alcohol and drug report, a psychologist’s report, and Ms Tuaki’s letter of remorse.25 The Judge noted Ms Tuaki’s difficult upbringing, but considered that, until Ms Tuaki decided to break her cycle of offending by taking the support available to her, “little can be done” to help her.26

[10]              The Judge applied a global starting point of 24 months’ imprisonment for the shoplifting offences in February and March 2024. This starting point included the seven charges of theft over $1,000; the five charges relating to thefts between $500–

$1,000; and 11 charges relating to theft under $500.

20 At [4].

21 At [3].

22 At [9].

23 At [10].

24     At [11]; Sentencing Act 2002, s 8(e) and (g).

25 At [12].

26 At [13].

[11]              The Judge applied an uplift of four months’ imprisonment for the breach of intensive supervision, the charges of speaking threateningly, and obstructing police.27 Separately, the Judge applied an eight month uplift for the offending that occurred when Ms Tuari was granted bail  (the  wilful  damage  charge  for  removing  her  EM bracelet, the theft, the assault charge, and the methamphetamine possession charge).28 As a result, the Judge reached an adjusted starting point of 36 months’ imprisonment.

[12]              The Judge then applied a 25 per cent (nine month) discount for Ms Tuari’s guilty pleas and a six month discount for the personal factors referred to in the various reports.29 The Judge noted this produced an end sentence of 21 months’ imprisonment. He then applied an uplift of four months for Ms Tuari’s previous offending and an uplift of two months for offending whilst on bail.30 The result was a total of 27 months’ imprisonment, noting that Ms Tuari was convicted and discharged on the charges relating to use of threatening words.

[13]              The Judge then proceeded to resentence Ms Tuari for the eight charges for which she had been previously sentenced by Judge Mika. He noted that Judge Mika adopted a starting point of 20 months’ imprisonment and applied a discount of 20 per cent for Ms Tuari’s background and rehabilitative prospects.31 The Judge factored time served and the principle of totality into the sentence to reach a cumulative sentence of eight months’ imprisonment.32 This led to a total sentence of 35 months’ imprisonment, without reparation.

Approach to sentence appeal

[14]              I must allow the appeal if I am satisfied that, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed.33

27 At [16].

28 At [16].

29 At [17].

30 At [18].

31 At [19].

32     At [20]–[21].

33     Criminal Procedure Act 2011, s 250.

[15]              Whether a sentence is manifestly excessive is assessed by reference to the end result, rather than the process by which it was reached.34 The Court does not start afresh or simply substitute its own opinion for that of the original sentencer.35 A claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of a prior error which often will involve questions such as whether the starting point is too high given the facts, or of incorrect discounts or as to parity with co-offenders.36

[16]              If there is a material error in the sentencing process, the Court will then form its own view of the appropriate sentence.37 In accordance with Moses v R, the two- step methodology requires:38

(a)calculation of the adjusted starting point, incorporating aggravating and mitigating features of the offence; and

(b)application of the aggravating and mitigating factors personal to the offender, together with any guilty plea discount, which are calculated as a percentage of the adjusted starting point. All second-step discounts and uplifts are fixed by reference to the adjusted starting point.

[17]              I should not “tinker” or intervene with the end sentence if the end sentence is within range.39 The focus must be on the end sentence, not the process adopted to reach that end sentence.40 In borderline cases, “the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight.”41

34     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

35 At [30].

36 At [32].

37   At [30] citing Te Aho v R [2013] NZCA 47 at [30]. 38 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583. 39 R v Boyd (2004) 21 CRNZ 169 at [38].

40 Ripia v R [2011] NZCA 101. See also Tutakangahau v R, above n 34, at [36].

41 R v D (CA 253/2008) [2008] NZCA 254 at [66].

Leave to appeal

[18]              The appeal is out of time.42 However, an extension of time within which a notice of appeal must be filed may be granted at any time by this Court.43 It is for the appellant to provide sufficient information to satisfy me that granting of leave is in the interests of justice.44 An extension will readily be granted where the delay is short and explained, particularly where the delay is caused by excusable difficulties in obtaining adequate, competent and independent legal advice.45

Arguments

For the appellant

[19]              In respect of the appeal being filed out of time, Mr Hawkins notes that he was instructed outside of the 20 working days for filing and that a further delay arose in obtaining the sentencing notes. He considers that the appeal raises a general question of importance, material to the reasoning in Mo’unga v R.46

[20]              Mr Hawkins contends that uplifts for previous convictions should be undertaken at the beginning of step two, immediately after the starting point for the offending is fixed. In effect, Mr Hawkins submits that the decision in Mo’unga should not be followed in respect of taking into account a defendant’s previous convictions.

[21]              For this proposition, Mr Hawkins refers me to various authorities. He cites the following passage in Taueki v R:47

The Judge appears to have taken into account in the categorisation of the offending certain aggravating features relating to Mr Roberts, particularly the fact he has 28 previous convictions including four involving violence, and that he was on parole following a term of imprisonment imposed on a previous charge of wounding with intent to injure. These should not have been taken into account in setting the starting point under the Hereroa guideline, but

42     Criminal Procedure Act, s 248(2): a notice of appeal must be filed within 20 working days after the sentencing date.

43     Section 248(4).

44     R v Davis [2007] NZCA 577 at [13].

45     See discussion in Rebecca Atkins and others (ed) Adams on Criminal Law (online looseleaf ed, Thomson Reuters) at [SAB9].

46     Mo’unga v R [2023] NZHC 1967 at [28]–[36].

47     Taueki v R [2005] NZCA 174, [2005] 3 NZLR 372 at [132].

rather should have been brought to account as a factors justifying an increase from the starting point.

[22]              Mr Hawkins contends that, after Taueki and Hessell v R, it became clear that uplifts for previous convictions were incorporated into the starting point, not the end sentence, and were proportionate to the starting point.48 He emphasises that Moses did not overturn Taueki, but rather endorses it.

[23]              Therefore, counsel submits that, at the beginning of step two, the personal aggravating factors of the offender should be reflected in the adjusted starting point, to reach a “final starting point”. He submits that this is consistent with the underlying rationale behind Moses, which was designed to give full effect to discounts.

[24]              Mr Hawkins submits that it makes sense to treat an offender’s previous convictions in adjusting the starting point, consistent with the approach taken in the excess breath alcohol context,49 and the approach under R v AM in respect of sexual violence offending.50 He contends that s 9(1) of the Sentencing Act 2002, logically blends various aggravating features of the offending and offender into one.

[25]In short, Mr Hawkins contends that I should apply Taueki and Moses, but not

Mo’unga. For Ms Tuari, he suggests a sentence made up as follows:

(a)a global starting point of 24 months;

(b)an uplift of four months for breach of intensive supervision, threatening language and obstruction;

(c)a further uplift of eight months for offending while on bail;

(d)an uplift of six months for resentencing and for previous convictions; total adjusted starting point: three years six months;

48     Taueki, above n 47 and Hessell v R [2010] NZSC 135.

49     Clotworthy v Police (2003) 20 CRNZ 439 (HC) and Samson v Police [2015] NZHC 748.

50     R v AM [2010] NZCA 114, [2010] 2 NZLR 750 at [84].

(e)a global discount of 35 per cent comprised of 25 per cent for early guilty plea and 10 per cent for personal matters for the appellant;

(f)reaching an end sentence of 28 months’ imprisonment.

[26]              Mr Hawkins emphasises that the appellant has served a significant amount of time on remand and that Judge Mika imposed the intensive supervision sentence on the basis that the punitive aspect of the sentence had “already been served”. He notes that Ms Tuari was credited 409 days, making her eligible for parole at her sentencing day.

[27]              Mr Hawkins contends that a starting point of 36 months’ imprisonment, resulting in an end sentence of 35 months’ imprisonment has “an inherent dysfunctionality about it”. In this respect, he contends the sentence was manifestly excessive. He notes that if Ms Tuari had not pleaded guilty early, her sentence would have exceeded the starting point. He submits that allowing the appeal would not constitute tinkering in this case.

For the respondent

[28]              Ms Mitchell, for the respondent, submits that the sentencing approach was orthodox, there was no double-counting, and the end sentence was not manifestly excessive.

[29]              First, Ms Mitchell contends there was no error in the District Court’s sentencing methodology. She rejects the appellant’s view that previous convictions of a defendant can sensibly be incorporated into the adjusted starting point as they are clearly a personal aggravating factor. She submits that the existence of prescribed circumstances under which identical offending can be an aggravating feature of the offence does  not  nullify  extensive  jurisprudence  confirming  those  principles.  Ms Mitchell notes that this is supported by the Court of Appeal’s (2024) decision in Moses v R.51 A footnote in that decision affirms that, consistent with Mo’unga v R, the adjusted starting point does not include uplifts for personal aggravating factors:52

51     Moses v R [2024] NZCA 121.

52     At [42], fn 42, citing Mo’unga v R, above n 46, at [28]–[36].

As noted in Mo’unga v R [2023] NZHC 1967 at [28]–[36], when discounts for personal mitigating factors are calculated as a percentage the percentage is to be taken from the adjusted starting point. However, the adjusted starting point does not include uplifts for personal aggravating factors.

[30]              Ms Mitchell also submits that there is no double-counting by the Judge adding eight months to the starting point to reflect the facts of the charges of intentional damage, theft, assault with intent to avoid detection, and possession of methamphetamine. She says that the fact these offences occurred whilst on bail is a discrete aggravating factor, requiring a separate subsequent uplift.

[31]              Ms Mitchell contends that the eight month cumulative sentence was not manifestly excessive. Rather, it was appropriate for Judge Earwaker to impose a sentence of eight months’ imprisonment (adjusted for totality from the 11 months’ imprisonment indicated by Judge Mika, had  the  sentence  not  been  converted  to 18 months’ intensive supervision). No other outcome than imprisonment would have been available and the 160 days the appellant had spent on remand by the time of sentencing will be treated as time served in calculating her release date, meaning there is no double-counting.

[32]              Ms Mitchell also submits that the end sentence as a whole was not manifestly excessive: the appellant has shown a life-long disregard for other people’s property rights and public safety, despite numerous rehabilitative interventions. The offending is significant in monetary terms and has had an impact on community perceptions of safety, given its scale and frequency.

Analysis

[33]              I am satisfied that the delay in Ms Tuari obtaining counsel and the delay in counsel obtaining a copy of the judgment under appeal contributed to the delay in this appeal being filed. Accordingly, I consider it in the interests of justice to hear and determine this appeal. Leave to appeal is granted.

[34]              I do not accept Mr Hawkins’ submission that Ms Tuari’s sentence was manifestly excessive or otherwise in error because Judge Earwaker’s assessment was consistent with the decisions in Moses and Mo’unga. Following the Court of Appeal’s

endorsement of Becroft J’s decision in Mo’unga, it is not open to me to amend that methodology by suggesting that prior offending should be included in the adjusted starting point, such that discounts can then be subtracted from that global total.53 I accept Ms Mitchell’s submission that this would have resulted in an illegitimate benefit if the starting point were increased by reference to previous convictions and the guilty plea discount was then applied to both.

[35]              I also do not consider that the Judge double-counted by imposing an uplift “for the offending that happened when [Ms Tuari was] granted bail, [including] the intentional damage charge … a charge of theft, a charge of assault with intent to avoid detection and possession of Class A drugs” alongside an uplift for “offending whilst on bail and subject to sentence”.54 I accept that the former uplift was made in relation to the offending itself (irrespective of the fact that it occurred whilst Ms Tuari was on bail), as this was not taken into account in setting the initial starting point.55 The Judge then correctly imposed an uplift for the fact that offending occurred whilst on bail, which is a separate personal aggravating factor.

[36]              I accept Ms Mitchell’s submission that neither the eight months’ cumulative sentence, nor the end sentence itself, was manifestly excessive. Ms Tuari’s time on remand by the time of sentencing will be treated as time served in calculating her release date. Before Judge Earwaker, imprisonment was the only available outcome, meaning that even though Judge Mika’s original sentence was not designed to be punitive, Judge Earwaker was not bound by that finding on resentencing.

[37]              Taking this into consideration and looking at the sentence as a whole, the end sentence of 35 months’ imprisonment was within range. Judge Earwaker made it clear that the effect of the offending on the community and Ms Tuari’s lack of rehabilitative buy-in was material to his decision. A relatively stern sentence was entirely justified on the facts.

53     At fn 42.

54     Judgment Under Appeal, above n 1, at [16], [18].

55 At [15].

[38]              I have found no material error in the Judge’s approach nor any viable argument that the end sentence itself was manifestly excessive.

Result

[39]The appeal is dismissed.

McHerron J

Solicitors:

Hawkins Law, Napier for Appellant

Elvidge & Partners, Napier for Respondent