Tyler v Police

[2025] NZHC 1806

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2025-412-36 [2025] NZHC 1806

BETWEEN  MATHEW TYLER

Appellant

AND  NEW ZEALAND POLICE

Respondent

Hearing:                   30 June 2025 Appearances:        R H Morton for Appellant

C E R Power for Respondent

Judgment:                2 July 2025

JUDGMENT OF OSBORNE J

Introduction

[1]    Mathew Tyler (at the time of offending aged 29) was sentenced by Judge Robinson having been convicted on six vehicle-related charges and six other charges to two years and nine months’ imprisonment (the Decision).1 That sentence was imposed on two burglary charges (one being representative). Shorter sentences were imposed on most of the other charges. An outstanding sentence of 60 hours’ community work was cancelled. The Judge remitted $4,953 in fines.

[2]    Mr Tyler appeals the sentence on two grounds: the starting points adopted for two discrete sets of charges were too high, and uplifts for offending on bail and previous convictions were too high.

1      Police v Tyler [2025] NZDC 8156.

TYLER v NEW ZEALAND POLICE [2025] NZHC 1806 [2 July 2025]

Facts

[3]    I refer to the two sets of charges as “the vehicle-related charges” and “the other charges”. I will summarise the facts relating to each set.

The vehicle-related charges

[4]Mr Tyler was sentenced for:

(a)unlawfully taking a motor vehicle;2

(b)driving while his licence was suspended (3rd or subsequent) (three offences, being his third, fourth and fifth such offences);3

(c)failing to stop when followed by red/blue flashing lights;4 and

(d)dangerous driving.5

[5]    In July 2019, Mr Tyler had been disqualified from driving for a period of nine months. In January 2021, he had been disqualified for a further six months.

[6]    On 31 October 2023, Mr Tyler had been suspended from driving any motor vehicle until 30 January 2024 due to excess demerit points.

[7]    On 3 November 2023 (three days after he was suspended), Mr Tyler was driving, and was stopped at a routine traffic stop. Police found he had been suspended from driving for a period of three months from 31 October.

[8]    On 5 November 2023, Mr Tyler unlawfully took a motor vehicle in Tauranga. That night he drove the vehicle, giving rise to another charge of driving while his licence was suspended. Police activated blue/red flashing lights and sirens in an attempt to signal it to stop, but Mr Tyler fled from police. Mr Tyler drove at excessive

2      Crimes Act 1961, s 226(1); maximum penalty seven years’ imprisonment.

3      Land Transport Act 1998, ss 32(1)(c) and 32(4); maximum penalty two years’ imprisonment or

$6,000 fine.

4      Land Transport Act, ss 52A(1)(a)(ii) and 114(2); maximum penalty $10,000 fine.

5      Land Transport Act, s 35(1)(b); maximum penalty three months imprisonment or $4,500 fine.

speed down narrow residential streets lined with cars in an attempt to evade police. He drove straight towards a police car, swerving at the last second to avoid a collision.

[9]    On 16 December 2023, Mr Tyler was the driver of his father’s vehicle in Kaikōura. He was seen drinking alcohol from the vehicle and was reported to police. Around 15 minutes later, he was stopped by police, breath tested, and found to be under the legal limit to drive. Checks of his licence showed he was suspended from driving. The vehicle was impounded for 28 days.

The other charges

[10]   Following the incidents on 3 and 5 November 2023, Mr Tyler was bailed but failed  to  answer  police  bail  on  9  November  and  subsequently  court  bail   on 29 November 2023. He was sentenced for those failures.6

[11]Mr Tyler was also sentenced on the following charges:

(a)wilful damage;7

(b)burglary (other property)(under $500)8 (representative);

(c)burglary (other property)($500-$5000);9

(d)possession of cannabis;10

[12]   On 12 November 2023, Mr Tyler went to an inn in Matamata. He climbed the fire staircase at the rear of the building and attempted to gain entry through a locked door. He smashed a glass window and entered the premises. He damaged a lockbox. He fell asleep on a couch. In explanation he told police he had lost his key.

6      Bail Act 2000, s 38(a); maximum penalty one year imprisonment or $2,000 fine; Bail Act, s 24; maximum penalty three months imprisonment or $1,000 fine.

7      Summary Offences Act 1981, s 11(1)(a); maximum penalty three months’ imprisonment or $2,000 fine.

8      Crimes Act, s 231(1)(a); maximum penalty ten years’ imprisonment.

9      Crimes Act, s 231(1)(a); maximum penalty ten years’ imprisonment.

10     Misuse of Drugs Act 1975, ss 7(1)(a) and (2); maximum penalty three months’ imprisonment or

$500 fine.

[13]   The burglary charges arose from Mr Tyler’s involvement with a deceased estate. The victim is the executor of her brother’s deceased estate and is not known to Mr Tyler and his associate. Since April 2024, a Dunedin property owned by the deceased estate has remained unoccupied while plans are made to wind up the estate.

[14]   Around August 2024, Mr Tyler was introduced by an associate to the Dunedin property. Neither the associate not Mr Tyler had authority to enter the property. Between 2 August and 26 October 2024, Mr Tyler repeatedly entered the enclosed yard at the address and burgled items including stamps, cutlery, antiques and motorcycle parts. Mr Tyler sold these items on online buy and sell pages, making approximately $3,500. This resulted in the representative charge of burglary.

[15]   On 13 November 2024, Mr Tyler, his brother and his associate took a Triumph motorcycle from the property at night. They cleared a path through the property and positioned the motorcycle by the front gate after cutting through the padlocked chain on the front gate. Nearby neighbours were alerted by the noise and called the police. Mr Tyler and the other two moved the motorcycle before driving it away in the brother’s vehicle. Mr Tyler and his brother drove out-of-town to meet a buyer, who paid Mr Tyler $700 cash. Mr Tyler and his brother were arrested upon return to Dunedin.

[16]   Upon carrying out the next day a search of the vehicle used by Mr Tyler, police found a zip lock bag containing 30 grams of the controlled drug cannabis. Searches of Mr Tyler’s and his brother’s address uncovered antiques identified as belonging to the deceased estate.

[17]Mr Tyler told police he was “doing it for the money”.

Criminal history

[18]   Mr Tyler has an adult criminal history that dates back to 2012. Most of his convictions relate to violent offending and driving offending. He has a 2021 conviction for wilful damage. There is a 2018 conviction for dishonestly taking or using a document, and a 2020 conviction for theft (under $500).

Victim impact statement

[19]   The owner of the burgled inn provided a statement, outlining the financial cost of $600-$700 for repairing the damage to the inn. He stated the offending occurred while he was out of town, which caused him stress as he was unable to ensure the security and safety of his staff and customers.

Pre-sentence report

[20]   In a pre-sentence report, Mr Tyler’s explanation of his offending was identified—that things were unravelling in his life, escalating to the point of using drugs daily. Mr Tyler said the offending would not have happened if he had not been under the influence of drugs.

The Decision

[21]    After setting out the facts of the offending, the Judge observed Mr Tyler had an extensive history of offending but that property offending was not significant in the history. The Judge did not take account of matters dealt with in the Youth Court.

[22]   After setting out counsel’s submissions, the Judge applied starting points for the charges.

[23]   The Judge took the burglaries as the lead offending. In reaching a starting point for those charges, the Judge observed the property was “vulnerable to being offended against” and given there were repeated burglaries, there was a high level of premeditation. The Judge noted the range for burglary starting points identified in Arahanga v R.11 He took into account as comparable cases Poole v R,12 and Simon v R,13 while observing those cases involved single burglaries. The Judge considered the lowest starting point appropriate would be 24 months’ imprisonment.

11     Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.

12     Poole v R [2014] NZHC 1226.

13     Simon v R [2017] NZHC 1235.

[24]   A starting point of 15 months imprisonment was applied for the charge of unlawful taking, citing Curle v Police.14 A starting point of 12 months’ imprisonment was adopted for the three charges of driving while licence suspended.

[25]   An uplift of two months was applied for the balance of the charges, reaching a provisional starting point of 52 months’ imprisonment.15 After adjusting for totality, the starting point was reduced to 45 months’ imprisonment.

[26]   A combined uplift of 10 per cent was applied for two reasons—the fact the offending occurred while on bail and for Mr Tyler’s prior convictions. Total credits of 35 per cent were allowed, for guilty plea, underlying addiction and expression of insight and police assistance. A credit for restorative justice was declined.

[27]   The net result was a credit of 25 per cent (45 months x 25%), leading to an end sentence of two years nine months’ imprisonment. That sentence was imposed on the charges of burglary. All other sentences were imposed concurrently.

[28]   No order was made for reparation as Mr Tyler “simply [did] not have means” (which similarly led to the remission of his fines).

Principles on appeal

[29]   Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.16 As the Court of Appeal observed in Tutakangahau v R, citing the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.17 It is appropriate for this

14     Curle v Police [2017] NZHC 1194.

15     The Judge’s calculations actually totalled 53 months, but the Judge identified the provisional starting point as 52 months.

16     Criminal Procedure Act 2011, ss 250(2) and 250(3).

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

Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.18

Submissions

Appellant’s submissions

[30]   Ms Morton, counsel for Mr Tyler, submits the sentence of two years and nine months’ imprisonment was manifestly excessive. She submits the starting points adopted for the burglaries and driving whilst licence suspended charges were too high in light of similar cases, and that the 10 per cent uplift for offending on bail and previous convictions was too high.

[31]   In relation to the burglary starting point, Ms Morton submits the Judge incorrectly applied the Court of Appeal’s guideline in Arahanga19 for starting points. She referred in particular to the observation:20

Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months’ to two years and six months’ imprisonment.

[32]   Ms Morton submitted incorrect weight was placed on the fact multiple burglaries occurred when determining the start point and the burglaries themselves were treated as more serious than they should have been. She noted there was no one residing at the burgled property, with the consequence the more usual risks associated with occupation by residents did not exist. Ms Morton submits that both the cases cited by the Judge, Poole v R and Simon v R, were distinguishable. She submitted there was more comparable offending in Curtis v R21 and Bates v R.22

[33]   In relation to the starting points for the driving whilst suspended, Ms Morton critiques both the approach adopted and the starting point. Ms Morton challenges the

18     Ripia v R [2011] NZCA 101 at [15].

19     Arahanga v R, above n 12.

20     Arahanga v R, above n 12 at [78].

21     Curtis v Police [2019] NZHC 1623.

22 Bates v R [2016] NZCA 456. Authorities submitted to be more serious offending are Toala  v  Police [2013] NZHC 3270, McFall v Police [2015] NZHC 2095 and Stepanicic v R [2015] NZCA 211.

Judge’s approach of setting a starting point for one of the charges of driving while licence suspended, and then uplifting for the remaining two charges. Counsel notes the District Court applied in Finch v R, an uplift of 14 months’ imprisonment to the overall starting point (six months for attempting to pervert the course of justice) for Mr Finch’s fifth, sixth and seventh charges of driving while disqualified. The Court of Appeal there considered the end sentence as available.23 As Mr Tyler’s driving while licence suspended charges were his third, fourth and fifth, Ms Morton submits the starting point of 12 months’ imprisonment was too high, given Mr Finch’s more extensive history of disqualified driving. Ms Morton submits a starting point of nine months’ imprisonment would have been in proportion to the assessed starting point in Finch, and was appropriately close to that set in cases with some similarity, specifically Townshend v Ministry of Health24 and Muhinda v Police.25

[34]   Ms Morton further submitted the 10 per cent uplift for offending on bail and prior convictions was too high. She said that was so because Mr Tyler does not have any adult convictions for burglary and his driving while suspended was already accounted for. Ms Morton submits an additional uplift for previous convictions operates as a double punishment upon Mr Tyler. It is contended no uplift was required for Mr Tyler’s prior convictions, and a only a five per cent uplift was appropriate for offending while on bail.

Respondent’s submissions

[35]   Mr Power, for the respondent, submits the starting points for the burglary offences and driving offending were generous given the aggravating features and submitted the uplift was in range. He submits the overall sentence was lenient and the appeal should be dismissed.

[36]   In relation to the burglary starting point, Mr Power observes this was not a single burglary case as the range set out in Arahanga refers to. He submits the sentencing Judge was entitled to focus on the fact there had been multiple entries to the same property, the value of items uplifted (and sold) was significant, and there was

23     Finch v R [2012] NZCA 446.

24     Townshend v Ministry of Health [2017] NZHC 1993.

25     Muhinda v Police [2015] NZHC 2024.

premeditation, with the thefts fully planned. The multiple entries involved in the offending covered by the representative charges, Mr Power notes, is reflected in the period of offending between 2 August and 26 October 2024, and the discrete burglary charge related to the multiple entries into the property on the same day. Mr Power submits there were further aggravating factors including the use of tools and the presence of co-participants. He submits Mr Tyler’s focus on the lack of potential for confrontation is not a sound basis for the burglary offending to be considered at the low end of seriousness. Given these considerations, he says, the starting point of 24 months’ imprisonment for the burglary offending was generous to Mr Tyler.

[37]   On the driving while suspended starting point, Mr Power refers to Apiata v Police,26 and the appendix to that judgment of sentences in previous cases relating to charges of this type, including Finch. The cases in the Apiata appendix indicate, he says, that the 12-month starting point was not out of range. The appendix cases generally, he submitted, involved “unremarkable” instances of driving while disqualified. In the present case, the driving while suspended conditions sit alongside other charges from the same period: failing to stop when followed by red/blue flashing lights and dangerous driving elevating the seriousness of the driving while suspended charges.

[38]   In relation to the uplift of 10 per cent, Mr Power notes the underlying rationale for uplifts under s 9(1)(c) of the Sentencing Act 2002 is to reflect the “disregard for [c]ourt processes”.27 He notes Mr Tyler was on bail awaiting sentence throughout the period of Mr Tyler’s burglaries (August to November 2024). Mr Power accepts the previous convictions do not relate to dishonesty or driving charges, so an uplift for convictions was appropriately limited, but he submits the uplift imposed, deriving primarily from offending while on bail, was in range.

[39]   Finally, Mr Power submits the end sentence on the lead charges was not manifestly excessive.

26     Apiata v Police [2016] NZHC 3119.

27     Clunie v R [2013] NZCA 110.

Analysis

Burglary starting point

[40]   I begin with the Court of Appeal’s observation in Arahanga that “this Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied.”28 The Court identified burglary of a domestic residence is a significant aggravating factor in sentencing due to the heightened risk of confrontation with the occupants.29 As noted by the Judge, the Court of Appeal established, “dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months to two years and six months’ imprisonment.”30

[41]   The risk of confrontation with a resident is only one aggravating feature amongst numerous that may arise in burglary offending. Although the property was vacant upon the death of its owner, the burglars had no assurance that nobody would be at the property. As the Judge noted, there were aggravating factors present in Mr Tyler’s offending—there were multiple entries over an extended period, valuable property was taken, and there was significant premeditation. On the discrete burglary charge, Mr Tyler engaged a third person, used tools to break into the property and came with a vehicle to facilitate the motorcycle theft.31

[42]   Given the extent of aggravating features involved, the offending was serious and I consider the starting point of 24 months’ imprisonment was well within rather than at the bottom of the minor range.

28     Arahanga v R, above n 12, at [78] citing Sunnex v Police HC Christchurch CRI-2010-409-43, 17 June 2001 at [7].

29 At [78].

30 At [78].

31 In Dawson v Police [2020] NZHC 2296 at [37] citing R v Nguyen CA 110/01, 2 July 2001 it was observed the following factors may be considered in assessing the criminality of particular offending: the degree of planning and sophistication in the offending; the nature of the premises entered; the kind and value of property stolen; damage done; the impact and potential impact upon occupants or owners of property; and the extent of the offending where multiple burglaries are involved. The observations were made in the context of aggravated robbery but appropriately also apply here.

Driving while suspended charges starting point

[43]   In setting a starting point for the group of three charges of driving while suspended, the Judge adopted the following approach:32

[32] If I were dealing with the driving while disqualified charge on its own [sic], the fifth in the sequence, then a starting point of 10 months’ imprisonment would be unexceptional; the authority for that being Gifkins v Police.33 If I was factoring in the other two charges then at the very least, I am at a starting point of 12 months’ imprisonment for the driving while disqualified [sic] offending.

[44]   Ms Morton submits the Judge should have set a concurrent starting point incorporating all three charges. In my view, the Judge, in effect, did adopt a starting point incorporating all three of the charges, which then operated as an uplift on the lead charges of burglary. The Judge cannot be criticised for the methodology he adopted in reaching that starting point by taking an appropriate starting point for one charge, and uplifting for the other two charges. It is the totality that matters. The issue is whether that total reached on all three charges was appropriate, not how it was reached.

[45]   I consider the 12-month starting point was within range. Twelve months for Mr Tyler’s offending, (representing his third, fourth and fifth convictions), can be appropriately related to the 14-month uplift in Finch, which involved a greater accumulation of charges.

[46]   I consider the case of Townshend v Ministry of Health, cited by Ms Morton, to also be of assistance. There, a cumulative nine-month sentence was applied for Mr Townshend’s fourth and fifth convictions for driving while disqualified.34 The case did not involve the aggravating factor present here, where the context involves the unlawful taking of a motor vehicle, failing to stop and driving dangerously (at speed, straight at police and swerving).

32     Footnotes omitted.

33     Gifkins v Police [2017] NZHC 1399.

34     Townshend v Ministry of Health, above n 24, at [30].

Uplift for offending on bail and previous convictions

[47]   Given Ms Morton accepts an uplift of five per cent for offending while on bail was appropriate, the twin issues here are whether an uplift for previous convictions was warranted at all, and, if I find that it was not, whether 10 per cent was too high of an uplift for offending on bail alone.

[48]   In Reedy v Police, Dunningham J helpfully identified principles relevant to uplifting for previous offending:35

(a)there will be no uplift for the bare existence of previous convictions — to do so would be to punish offending more than once;

(b)The permissible lines of reasoning, justifying an uplift, fall into three broad categories:

(i)previous convictions bearing upon character and culpability;

(ii)indication of predilection to offend in a specific way (an indicator of reoffending);

(iii)the need to protect society by the imposition of a deterrent sentence.

This necessarily requires the uplift to be firmly tied to specific aspects of the offender’s criminal history.

(c)the uplift must remain proportionate to the starting point fixed by the sentencing Judge.

(d)there is no fixed figure beyond which an uplift will be held to be disproportionate. This is a matter to be determined, at first instance, by the sentencing judge having regard to all relevant factors (i.e. number, seriousness and nature of previous convictions, previous sentences imposed, time elapsed since the last conviction etc).

[49]   I accept Ms Morton’s submission that Mr Tyler’s history for driving while licence suspended was appropriately accounted for in the starting point for those charges. It did not justify an additional uplift. The putting of Mr Tyler’s Youth Court matters to one side, as done by the Judge, was clearly appropriate.

[50]   There is a balance to be struck between giving effect to the preventive purposes of sentencing and avoiding double punishment through uplifting for convictions for which Mr Tyler has already served sentences. Myers CJ observed in R v Casey the

35     Reedy v Police [2015] NZHC 1069 at [19] (footnotes omitted).

court should be careful to see that a sentence of a defendant who has been previously convicted is not increased merely because of previous convictions. That said; 36

… the previous convictions of a prisoner may indicate a predilection to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly.

[51]   Mr Tyler appears to have difficulty respecting others’ property rights. The current charges of wilful damage and burglary clearly demonstrate a disregard. While Mr Tyler’s previous convictions for dishonesty-related offending and wilful damage are somewhat dated, I consider the principle identified by Sir Michael Myers applies here—it was appropriate in this case to take Mr Tyler’s convictions into consideration. It would have been helpful if the District Court Judge had specified which prior convictions justified the uplift but the omission to do so does not affect the fact an uplift was justified.

[52]   I turn to the component of the uplift applied for offending while on bail. As outlined in his bail history, Mr Tyler’s burglary offending, possession of cannabis and one charge of driving while licence suspended occurred while Mr Tyler was remanded on bail for the earlier driving offending. The application of an uplift on that basis was sound.

[53]   In considering the outcome arrived at by the Judge, it is relevant that the Judge calculated the sentence (at [41] of the Decision) before considering and remitting (at [52]), Mr Tyler’s $4,953 outstanding fines, and cancelling his community work. The remission of fines of itself could have justified the imposition of additional community work, but that was not feasible, given Mr Tyler was going to prison.

[54]   Overall, I am satisfied the Judge did not err in his assessment of a global ten per cent uplift for the prior offending and the fact there had been offending while on bail.

36     R v Casey [1931] NZLR 594 (CA) at 597.

[55]   Most importantly, the appeal is not to be allowed unless the Judge’s end sentence was manifestly excessive. Standing bank, I do not view the concurrent sentences of two years and nine months’ imprisonment as excessive.

Result

[56]The appeal is dismissed.

Osborne J

Solicitors:

Crown Solicitor, Dunedin

Public Defence Service, Dunedin