Tuhakaraina v Police - [2025] NZHC 339

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2025-425-000001

[2025] NZHC 339

BETWEEN
MICHELLE TAPUAURUWAI TUHAKARAINA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 10 February 2025

Appearances:

J I Grant for the Appellant

M B Brownlie for the Respondent

Judgment:

28 February 2025

JUDGMENT OF PRESTON J

This judgment was delivered by me on 28 February 2025 at 9.00 am, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

TUHAKARAINA v NEW ZEALAND POLICE [2025] NZHC 339 [28 February 2025]

Introduction

[1] Ms Tuhakaraina, aged 56, pleaded guilty to one charge of using a document for pecuniary advantage1 and one charge of theft of a dwelling.2 On 28 November 2024, Judge Harvey sentenced her to eight months’ imprisonment.

[2] Ms Tuhakaraina appeals her sentence as manifestly excessive. She argues the starting point for the lead charge was too high. Further, she says the sentence should have been commuted to home detention.

Offending

[3] On 20 June 2023, Ms Tuhakaraina knocked on the door of the 74-year-old victim’s home. She asked if she could borrow some petrol as she had run out. The victim left Ms Tuhakaraina alone in his home while he went to his shed to get some petrol.

[4] Later that night, the victim was unable to find his wallet. He checked his bank account online and saw that someone had been using his Visa card, alerting him to the fact that his wallet, with $200 in cash and other cards including his driver’s license and Super Gold card, had been taken.

[5] Police identified Ms Tuhakaraina from CCTV footage of the card being used. The victim also identified Ms Tuhakaraina from a police photo montage.

[6] Ms Tuhakaraina denied all knowledge of the incident. She pleaded guilty to the charges but maintained that it was not her who stole the wallet. She told the pre- sentence report writer that she pleaded guilty because she was tired of bail checks and wanted to get these matters out of the way.

[7] The victim is now very wary of strangers and frightened by knocks at his door, finding it hard to trust people. He says the whole episode was stressful, and having to

1 Crimes Act 1961, s 228(1)(b); maximum penalty 7 years’ imprisonment.
2 Crimes Act 1961, s 219 and 223(d); maximum penalty 3 months’ imprisonment.

deal with the bank to cancel his cards and try to get some of the stolen funds back was difficult as he has little support. The offending cost him over $1,200.

Sentencing

[8] The Judge rejected Ms Tuhakaraina’s claims that an associate stole the victim’s wallet and she herself did not take any money or use the bank card. He considered the offending was in keeping with Mr Tuhakaraina’s “modus operandi”, as apparent from the sentencing indication notes of another judge who was dealing with three similar incidences a year previously.3

[9] The Judge noted, but did not accept, the…

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 339
Decision Date: 28 February 2025

CaseChat Overview and Summary

Michelle Tapuauruwai Tuhakaraina appeals against her sentence of eight months' imprisonment, imposed for charges of using a document for pecuniary advantage and theft of a dwelling. She argues the sentence was manifestly excessive, particularly because the starting point for the lead charge was too high. Tuhakaraina further argues that the sentence should have been commuted to home detention. The Court must determine if the sentence imposed was manifestly excessive and whether it should have been commuted to home detention.

The court first considers if the starting point of nine months for the lead charge was too high. The Court agrees with Tuhakaraina's submission that the starting point was too high but does not accept that it should have been as low as five months, as suggested by the appellant's counsel. The court finds a starting point of six months to be more appropriate. The court then considers whether an uplift was warranted for the appellant's extensive criminal history. The court finds an uplift of 20% appropriate, resulting in an adjusted starting point of six months. Applying the credit for a guilty plea, the court concludes that the sentence imposed was manifestly excessive.

The court then considers whether the sentence should have been commuted to home detention. While the court agrees that home detention is technically available, it concludes that a sentence of imprisonment is necessary to adequately meet the purposes and principles of sentencing in this case. The court finds that community-based sentences have not assisted with Tuhakaraina's rehabilitation and reintegration into the community to date, and her history of non-compliance with such sentences, lack of remorse, and recent re-offending while subject to a community-based sentence, makes imprisonment necessary.

The appeal is allowed. The sentence of eight months' imprisonment is quashed and a sentence of six months' imprisonment is substituted. The special release conditions as ordered in the District Court remain.

Orders