Tuhiwai v The King

[2025] NZHC 2315

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2025-488-82

[2025] NZHC 2315

BETWEEN

MAYLEEN JUNE TUHIWAI

Appellant

AND

THE KING

Respondent

Hearing:

7 August 2025 (further submissions received on 11 and 13 August

2025)

Appearances:

J A Young for Appellant P Hamber for Respondent

Judgment:

15 August 2025

JUDGMENT OF LANG J

[appeal against sentence]

This judgment was delivered by Justice Lang On 15 August 2025 at 11.00 am

Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:

Marsden Woods Inskip Smith, Crown Solicitor, Whangarei J A Young, Whangarei

TUHIWAI v R [2025] NZHC 2315 [15 August 2025]

[1]    Ms Tuhiwai pleaded guilty in the District Court to a charge of conspiring to pervert the course of justice.1 On 10 July 2025, Judge G A Andrée Wiltens sentenced her to 18 months imprisonment.2

[2]    Ms Tuhiwai appeals against sentence on the basis that the Judge failed to consider granting her leave to apply for the sentence to be converted to home detention.

The offending

[3]    The charge was laid as a result of actions taken by Ms Tuhiwai to assist her son, who faced charges in the District Court involving allegations of family violence against his then partner. Those charges had resulted in her son being remanded in custody.

[4]    Ms Tuhiwai received a telephone call from her son on 28 February 2024 in which he asked her to contact his partner. He wanted Ms Tuhiwai to ask his partner to draw up an affidavit in which she confirmed that she wished the charges against him to be withdrawn. He asked Ms Tuhiwai to file the affidavit in the District Court. This conversation was recorded as a matter of routine given that Ms Tuhiwai’s son made it from the correctional facility in which he was being held on remand.

[5]    On 12 March 2024, Ms Tuhiwai’s son called her again. On this occasion he asked her to call the police and request that they drop the charges. She agreed to do so. She also told her son that she had already spoken to his partner and asked her to withdraw the charges. Ms Tuhiwai’s son then said, “Well make sure that she says it was a false statement, that she was angry and needed time away”. This conversation was also recorded on the prison telephone monitoring system.

[6]    On 18 March 2025, Ms Tuhiwai’s son telephoned her again. She told him she was taking his partner to the police station the next day to have the charges withdrawn. Ms Tuhiwai’s son then said, “Take her to the victim support people and write an affidavit saying she was angry and needed space”.

1      Crimes Act 1961, s 116.

2      R v Tuhiwai [2025] NZDC 15422.

[7]    On the following day, Ms Tuhiwai took her son’s partner to the police station at Whangārei. There, Ms Tuhiwai spoke to counter staff about the process that needed to be followed to have the charges withdrawn. The counter staff responded by telling her that this was not possible, and that the charges were now in the hands of the Court.

[8]    On 20 March 2024, Ms Tuhiwai’s son called her again from prison to obtain confirmation that she had taken his partner to the police station. She said she had done this but that the police had told her the matter needed to proceed through the court process.

The law

[9]Section 80I of the Sentencing Act 2002 (the Act) provides as follows:

80ILeave to apply for cancellation of sentence of imprisonment and substitution of sentence of home detention in certain cases

(1)This section applies if—

(a)a court has sentenced an offender to a short-term sentence of imprisonment; and

(b)at the time of sentencing, the court would have sentenced the offender to a sentence of home detention if a suitable residence had been available.

(2)At the time of sentencing, the court must make an order granting the offender leave to apply to the court of first instance for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if the offender finds a suitable residence at a later date.

[10]   The fact that Ms Tuhiwai received a sentence of 18 months imprisonment meant that she received a short-term sentence of imprisonment for the purposes of    s 80I(1)(a). As a result, she was potentially eligible for a sentence of home detention if she could provide a suitable address or an order under s 80I(2) if she could not.

[11]   This Court has held that the obligations contained in s 80I(2) are directory and not discretionary. In Bourton v New Zealand Police, Dunningham J observed:3

[12]   I am satisfied that the commentary in Hall’s Sentencing is correct. Section 80I is directory not discretionary. The section imposes a mandatory

3      Bourton v New Zealand Police [2016] NZHC 2883.

obligation on the Judge provided the threshold criteria are met. The obligation arises independently from any application by a defendant (or lack thereof) for leave to apply for substitution.

[13]   The Court must therefore reach a view when it imposes a short-term sentence of imprisonment as to whether it would have sentenced the offender to home detention if a suitable residence had been available. Commonly this issue is addressed by judges simply saying something along the lines of “even if a suitable address had been available I would have imposed a sentence of imprisonment because …”. A statement such as that precludes the application of s 80I(1)(b) and heads off the mandatory application of s 80I(2).

…

[15] As a consequence, where a Judge has failed to address s 80I(1)(b) such that it is not clear whether he or she has overlooked the mandatory requirement in s 80I(2), there is an error in sentencing.

The appeal

[12]   At the time she was sentenced Ms Tuhiwai did not have an address at which she could serve a sentence of home detention. It is unclear why her counsel did not seek an order under s 80I(2) to guard against the possibility that she might find a suitable address in the future.

[13]   Ms Young contends on Ms Tuhiwai’s behalf that the Judge should nevertheless have given consideration to the issue of whether Ms Tuhiwai should be granted leave under s 80I(2). She asks this Court to intervene in its appellate jurisdiction and grant Ms Tuhiwai leave to apply to convert the sentence of imprisonment to home detention because she has now found an appropriate address. It would then  be  for  the  District Court to determine her application.

Decision

[14]   As the wording of the section makes clear, the obligation under s 80I(2) will only arise where the sentencing Judge would have imposed a sentence of home detention if a suitable address had been available at the time of sentencing. The argument for Ms Tuhiwai assumes that, had the Judge turned his mind to this issue, he would have granted leave.

[15]   However, I consider this assumption to be incorrect because of the following paragraphs of the Judge’s sentencing remarks:4

[8]        What has to be borne in mind here is that you were not, as you say in your pre-sentence report that has been prepared, trying to help your son and trying to help the young woman. The young woman had been actively hiding from your son and trying to keep her children safe from your son, because so far as she is concerned, he administers violence towards her and the children. You are those childrens’ grandmother and you are preferring to help your son to try and evade the consequences of his actions for his benefit, completely ignoring what that means to the young woman, his girlfriend, his partner, and to your grandchildren.

[9]        If you look at it like that, there is no choice but to say that the only proper sanction here is imprisonment, and that is the way I look at it. It is outrageous conduct from a woman who should know much better.

…

[14] So taking into account all factors, I am imposing an end sentence of

18 months’ imprisonment, which is a very generous sentence in the circumstances, I consider, but it is actual imprisonment. There will be six months of standard post-release conditions as well to follow that.

(Emphasis added).

[16]   I consider these paragraphs demonstrate clearly that the Judge had turned his mind to the available sentencing options and concluded that the serious nature of   Ms Tuhiwai’s offending meant that imprisonment was the only appropriate sentencing outcome. It follows that the basis on which Ms Tuhiwai advances her appeal falls away.

[17]   However, it is still open to Ms Tuhiwai to appeal against the Judge’s effective refusal to grant her leave to apply for the sentence to be converted to home detention. As Mr Hamber  acknowledges for the Crown, this flows from the wording used in    s 250(2)(a) of the Criminal Procedure Act 2011. Section 250(2)(a) requires a first appeal court to allow an appeal against sentence if, for any reason, there is an error in the sentence imposed on conviction.

[18]   In order to determine whether there was an error in the Judge’s refusal to grant leave, it is necessary to consider whether he ought to have concluded that a sentence

4      R v Tuhiwai, above n 2.

of home detention was appropriate and a sentence of imprisonment was not. That issue had not been canvassed in the submissions filed prior to the hearing of the appeal. I therefore asked counsel to file further submissions addressing the issue. I am grateful to both counsel for the helpful submissions they subsequently filed.

[19]   Mr Hamber refers me to several cases in support of a submission that a custodial sentence will ordinarily be appropriate for offending of this type.5 Ms Young does the same in support of her submission that a sentence of home detention was the appropriate response.6

[20]   Having reviewed these authorities I have concluded that in most cases of serious offending in this area a sentence of imprisonment will be imposed. This reflects the fact that it is a serious matter to endeavour to obstruct the criminal justice process. The issue in  the  present  case  is  whether  the  aggravating  features  of  Ms Tuhiwai’s offending required the deterrent sentence of imprisonment to be imposed.

[21]   There are undoubtedly several factors that aggravate the seriousness of the offending. The first is that Ms Tuhiwai took two discrete steps to assist her son escape conviction by obstructing the criminal justice process. Both were undertaken in response to requests from him whilst he was in custody. As noted above, Ms Tuhiwai first spoke to her son’s partner in an effort to persuade her to withdraw her complaint. She then took the very serious step of taking her son’s partner to the police station so that she could arrange for the charges to be withdrawn.

[22]   The second, and inter-related, aggravating factor is that Ms Tuhiwai’s efforts were directed at the victim of the offending. The victim was entitled to the support of members of her wider family at a very difficult time in her life. Rather than provide her with support, Ms Tuhiwai endeavoured over an extended period to persuade the

5      Dodds v R [2024] NZCA 362; R v Dodds [2024] NZHC 871; R v Potter [2015] NZCA 25; R v Churchward CA439/05, 2 March 2006; R v Withey CA469/03, 13 September 2004; Stevens v Police [2012] NZHC 871; and Zurich v Police HC Whanganui CRI-2020-483-18, 30 March 2010.

6      R v Dodds, above n 5; Kelly v R [2024] NZHC 2719; Thomas v R [2020] NZCA 257; Muhundan v R [2025] NZHC 1982; and R v Williams [2025] NZHC 789.

victim  to  tell  the  police  she  had  been  lying  in  her earlier statement.    This was effectively a form of re-victimisation.

[23]   I consider these factors outweigh the fact that, at 54 years of age, Ms Tuhiwai has not offended since 2002 and has never previously served a sentence of imprisonment. A sentence of imprisonment was the only appropriate response for the present offending.

[24]   It follows that the Judge was correct to decline to grant Ms Tuhiwai leave to apply to have the sentence converted to home detention.

Result

[25]The appeal against sentence is dismissed.

Lang J