Tuhakaraina v Police
[2025] NZHC 339
•28 February 2025
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 pre-sentence report’s recommendation of supervision and community work, stating:4
… Ms Tuhakaraina, you have had every possible chance that can be given to you and yet you continue to offend, you do so blatantly, you do so deliberately and then you do whatever you can to try and avoid responsibility. The time has come for this Court to make a point.
[10] On the lead charge of using a document the Judge adopted a starting point of nine months’ imprisonment. No uplift was applied in respect of Ms Tuhakaraina’s extensive previous history of offending, but the Judge afforded one month credit for her guilty pleas, which he noted came very late. Ms Tuhakaraina does not challenge the concurrent sentence of one month imprisonment which was imposed on the theft charge.
[11]The end sentence was therefore eight months’ imprisonment.5
Principles on appeal
[12] A sentence appeal must be allowed by this Court only if satisfied there is an error in the imposition of the sentence and a different sentence should be imposed.6
3 Ms Tuhakaraina’s previous history includes dishonesty offending correlating to the incidents Judge’s remarks.
4 Police v Tuhakaraina [2024] NZDC 29978 at [11].
5 Including special conditions of release directed at intervention/rehabilitation as directed by the probation officer: at [13].
6 Criminal Procedure Act 2011, s 250.
The focus is on the sentence imposed rather than the process by which it was reached. The court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles but conversely must correct if it concludes the sentence is manifestly excessive.7
Discussion
[13] There are two fundamental issues on the appeal: was the sentence imposed manifestly excessive, and should it have been commuted to home detention?
[14] Mr Brownlie for the Crown does not contest the appellant’s critique of the term of the sentence but supports the Judge’s decision not to commute it. He submits a custodial sentence was the only appropriate response to this offending, in Ms Tuhakaraina’s circumstances.
Was the starting point too high?
[15] Ms Grant submits the starting point of nine months was too high having regard to three decisions of this Court, in Horrell v Police,8 Poupouare v Police9 and Doctor v Police.10Counsel submits Ms Tuhakaraina’s offending was unsophisticated and suggests arguably it was opportunistic, not pre-meditated. Further, she argues, there is no known relationship between the victim and the appellant to suggest a breach of trust.
[16] As Ms Grant acknowledges, there is no guideline decision for dishonesty offending, albeit the factors to be considered when assessing culpability were set out by the Court of Appeal in R v Varjan.11
[17] Here I accept the offending was unsophisticated. However, even if not pre- meditated, which as counsel accepts is at least arguable having regard to Ms Tuhakaraina’s relevant previous history, plainly the offending involves a breach of
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35], [36].
8 Horrell v Police [2016] NZHC 820.
9 Poupouare v Police [2022] NZHC 209.
10 Doctor v Police [2017] NZHC 1084.
11 R v Varjan CA97/03, 26 June 2003 at [22].
trust notwithstanding the victim was not known to Ms Tuhakaraina. Entry was offered and gained to the victim’s home on either a pretext or, at best, in response to a genuine request for assistance. Then, when he left Ms Tuhakaraina inside his home to fetch some petrol as she had sought, the wallet and its contents were stolen. In my view this is an important aspect of the present offending. The victim impact statement reflects this breach of trust.
[18] Similarly, I do not accept the submission that the amount of the loss to the victim (accepted as high) attributable to Ms Tuhakaraina is relatively low—a submission apparently based on the appellant’s assertion she was not responsible for the funds withdrawn using the stolen bank card.
[19] I turn then to the two most analogous of the decisions to which Ms Grant referred.
[20] In Horrell v Police, the appellant visited a neighbouring property, being let in by the victim and taking a debit card unbeknownst to him. Mr Horrell and an unknown associate used it multiple times, causing a loss of $658.58 in the one night. The starting point of 12 months adopted in the District Court was reduced to six months on appeal by the High Court.
[21] In Poupouare v Police, the appellant had been sentenced on multiple dishonesty and other charges, including the lead charge of dishonest use of a document. Ms Poupouare took a debit card from the desk of a staff member at WINZ while attending an appointment and spent $191.83 on the card. This too involved a single victim in a single night. Gordon J accepted the offending was opportunistic and unsophisticated, with relatively low monetary value of the loss. The Judge found there was no breach of trust. After review of a number of High Court decisions involving broadly similar offending, including Horrell and Doctor, the nine-month starting point adopted in the District Court was reduced to five months on the appeal.12
[22] I consider Ms Tuhakaraina’s culpability is broadly similar to the relevant offending in both Horrell and Poupouare. The quantum of loss is nearer to that in
12 Poupouare v Police, above n 9.
Horrell. I do not view the number of transactions then undertaken (and, consequently, charges in Horrell) as material. Ms Tuhakaraina’s breach of trust within a victim’s home is the most distinctive feature and is broadly mirrored in Horrell. There, as here, the victim impact was heightened as a result.
[23] While I do not accept Ms Grant’s submission the starting point ought to have been five months, I agree nine months was too high. In my view six months was appropriate.
[24]I turn now to consider uplift.
Uplift for previous offending
[25] As Ms Grant for Ms Tuhakaraina submits, it is unclear whether the Judge’s starting point of nine months incorporated an uplift for the appellant’s relevant prior history, none was articulated, but counsel concedes an uplift was warranted.
[26] Ms Tuhakaraina has 72 previous convictions over a period of 38 years, 22 of which are for dishonesty offences. As her counsel accepts, this history aggravates the offending and warrants an uplift.13 But care must be taken to ensure an uplift does not re-punish the appellant defendant for that prior offending.14
[27] Ms Grant pointed to the discussion in Poupouare of a range of uplifts imposed for previous convictions, summarised as follows:
(a)Henry v Police:15 25 per cent uplift for 92 previous dishonesty convictions.
(b)Horrell v Police:16 50 per cent uplift for a “considerable” criminal history—the appellant having 344 convictions, 235 of which were for dishonesty offending.
13 Sentencing Act 2002, s 9(1)(j)
14 Harris v R [2024] NZCA 554 at [26].
15 Henry v Police [2016] NZHC 800 at [7].
16 Horrell v Police, above n 10, at [43].
(c)Walsh v Police:17 25 per cent uplift for 11 previous dishonesty convictions.
(d)Rako v R:18 17 per cent uplift for 17 previous dishonesty convictions. Notably, the Court of Appeal found that the sentencing judge would have been justified in applying a greater uplift.
(e)McKenzie v Police:19 25 per cent uplift for 39 previous dishonesty convictions.
[28] Excluding Horrell as an outlier, this range of cases suggests a 15–25 per cent uplift is available in the present case. Ms Grant contends for 20 per cent.
[29] A recent decision of the Court of Appeal in Harris v R also assists. There, an uplift of 12 per cent uplift on a starting point of four years and eight months’ imprisonment due to the appellant’s “extensive” criminal history was upheld on appeal, as “(well) within range” and supported by the rationales of denunciation and community protection.20 The Court had been unable to discern any material reduction in the frequency of the appellant’s criminal history nor any diminution of the seriousness of her offending.21
[30] I consider Ms Tuhakaraina’s 22 previous dishonesty convictions are towards the lower end of the scale having regard to the cases put before me by Ms Grant. However, the persistence of her criminal history across her adult life and the more recent offending history of multiple burglaries does increase the need for deterrence. I accept as Ms Grant submits an uplift of 20 per cent is appropriate. Ms Grant acknowledges there are no other credits applicable.
[31] Uplifting the indicated starting point accordingly, by 1.2 months which I round down to one month, gives an adjusted starting point of seven months. I apply the Judge’s indicated reduction for guilty plea of one month (without adjusting for
17 Walsh v Police HC Tauranga CRI-2010-470-36, 18 March 2011, at [29].
18 Rako v R [2015] NZCA 463 at [15].
19 McKenzie v Police [2015] NZHC 2742 at [27].
20 Harris v R, above n 14, at [29].
21 Harris v R, above n 14, at [27].
percentage in the circumstances), with the end result a sentence of six months’ imprisonment.
[32] In context of a short-term sentence of imprisonment, I accept this means the sentence imposed was manifestly excessive and should be substituted on appeal.
Should the sentence have been commuted to home detention?
[33]Should that term be commuted to home detention?
[34] Ms Tuhakaraina’s address has been assessed as suitable for electronic monitoring. Ms Tuhakaraina would reside at the address with her three children, aged 16, 18 and 19.
[35] If, as here, a sentence of home detention is technically available under s 15A, the court must consider whether home detention should be imposed.22 From the sentencing notes, it is unclear whether the Judge considered this aspect. While this may be inferred from his rejection of the recommendation of supervision and community work and observation that “the time has come for this Court to make a point”,23 I consider that the Judge failed adequately to consider Ms Tuhakaraina for home detention. I approach the issue afresh.24
[36] The decision whether to commute a sentence to home detention calls for case- by-case exercise of judgment with reference to the principles and purposes of sentencing, as there is no presumption either way.25
[37] A sentence of imprisonment must not be imposed unless the court is satisfied that the sentence is imposed for all or any of the purposes in section 7(1)(a) to (c), (e),
(f) or (g) of the Sentencing Act, those purposes cannot be achieved by a sentence other than imprisonment, and no other sentence would be consistent with the application of the principles in section 8 of the Act. This includes the principle that the court must
22 Papa v Police [2019] NZHC 1309; Pahulu v Police [2020] NZHC 153.
23 Police v Tuhakaraina, above n 4, at [12].
24 Fomai v Police [2014] NZHC 377; Tanoa v Police [2017] NZHC 2836; Papa v Police, above n 22; Pahulu v Police, above n 22.
25 Palmer v R [2016] NZCA 541 at [19].
impose the least restrictive outcome that is appropriate in the circumstances.26 When considering imposing a sentence of imprisonment, the court must also have regard to the desirability of keeping offenders in the community.27
[38] Ms Grant submits that a short-term sentence of imprisonment is not the most effective way of protecting the public from harm caused by Ms Tuhakaraina. Looking at her criminal history, counsel suggests that the most effective penalty to effect a break in Ms Tuhakaraina’s offending is an order to come up for sentence if called on. Ms Grant submits that this suggests “that potential for further penalty has the greatest impact on the appellant’s criminal offending”. However, even if the potential for future sentence does have a deterrent effect on Ms Tuhakaraina, this will not continue to be the case if she continues to avoid imprisonment for her offending. I do not find this submission persuasive.
[39] Ms Grant further submits that a sentence of home detention would enable her to be present for her children and to enter employment.
[40] Employment may indeed be a protective factor for someone with an extensive history like Ms Tuhakaraina, but I note Ms Tuhakaraina told the report writer that she believes caring for her son is more important than getting a job. Ms Tuhakaraina is his sole carer. Accordingly, I do not consider that Ms Tuhakaraina has any intention of seeking employment should she be granted home detention. I take into account her maternal obligation to her son in particular and her two daughters, 16 and 18 years, arguably the strongest plank of her counsel’s argument.28 I note the son’s age at 19 years, and the information in the pre-sentence report that the two daughters had interviewed for work. I do not consider this aspect outweighs the circumstances of Ms Tuhakaraina’s offending, prior response to interventions and history, which indicate denunciation and deterrence are paramount purposes of sentencing in this case.
26 Sentencing Act 2000, s 8(1)(g).
27 Section 16(1).
28 Sweeney v R [2023] NZCA 417
[41] Ms Tuhakaraina maintains a lack of remorse and refusal to take responsibility for her actions. She refuses to admit that she took the victim’s wallet, despite her guilty plea. In her alternative account, in which she is the driver while her associate takes the wallet, she also has no explanation for why she would not turn the car around and return the wallet to the victim.
[42] Ms Tuhakaraina also has a troubling history of non-compliance with community-based sentences. She committed this latest offending while subject to post-detention conditions having completed a sentence of home detention. Further, she has accumulated the following convictions:
1.Breaching community work (x6);
2.Breaching home detention;
3.Breaching the Corrections Act (x2);
4.Breaching the conditions of supervision (x2);
5.Breaching the conditions of community detention (x2);
6.Failing to answer District Court bail.
[43] Weighing all these matters, I accept as Mr Brownlie submits, no sentence short of imprisonment would adequately meet the purposes and principles of sentencing in this case. Community-based sentences have not, to date, assisted with Ms Tuhakaraina’s rehabilitation and reintegration into the community. She has a distinctly poor record of compliance with those sentences, demonstrated lack of remorse, and has in this case re-offended while still subject to a community-based sentence.
[44] It is therefore not appropriate to commute Ms Tuhakaraina’s sentence to one of home detention.
Result
[45]The appeal is allowed.
[46]The sentence of eight months imprisonment is quashed.
[47]A sentence of six months imprisonment is substituted.
[48]The special release conditions as ordered in the District Court remain.
………………………………………
Preston J
Solicitors:
Crown Solicitor, Invercargill
Counsel:
Kieran Tohill Law Limited, Alexandra
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