Utiera v The King
[2025] NZHC 2162
•4 August 2025
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2025-441-006
[2025] NZHC 2162
BETWEEN JOHN UTIERA
Appellant
AND
THE KING
Respondent
Hearing: 24 July 2025 Appearances:
F J S Ryan for Appellant
F E Cleary for Respondent
Judgment:
4 August 2025
JUDGMENT OF GRICE J
(Appeal against sentence)
Introduction
[1] John Utiera pleaded guilty to one charge of theft between $500 and $1,000,1 12 charges of theft under $500,2 and one charge of failing to answer District Court bail.3 He was sentenced to two years’ imprisonment on those charges in the District Court at Napier on 2 May 2025.4
[2] Mr Utiera now appeals against that decision on the basis that the sentence imposed was manifestly excessive. The Crown opposes the appeal and submits that, while the end sentence and its component parts were undoubtedly stern, the outcome was appropriate in the circumstances.
1 Crimes Act 1961, ss 219 and 223(c) — maximum penalty one year’s imprisonment.
2 Crimes Act, ss 219 and 223(d) — maximum penalty three months’ imprisonment.
3 Bail Act 2000, s 38(a) — maximum penalty one year’s imprisonment, or $2,000 fine.
4 New Zealand Police v Utiera [2025] NZDC 9878 [judgment under appeal].
UTIERA v R [2025] NZHC 2162 [4 August 2025]
Background
The offending
[3] The offending, which was carried out during the period from December 2024 to March 2025, involved a series of low-level thefts, mainly by Mr Utiera filling his car at petrol stations and leaving without paying, but also some shoplifting offending. Mr Ryan, for Mr Utiera, confirmed that the Crown’s summary of the offending accurately outlined the factual basis for the resulting charges, as follows:
Date Charge
CRN
ending
Description of Offending
18 Dec 2024 Theft (under $500) 0930 Stole $80.74 of petrol from BP Bay View Napier by filling his car and driving
away without paying.
23 Dec 2024 Theft (under $500) 0564 The appellant entered the Warehouse in Palmerston
North with a female associate, together they loaded the trolley with 34 items (total value
$819.48) and exited the store. They were confronted outside and all items were recovered.
The amount attributed to the appellant’s share is $409.75.
(“the Warehouse offending”)
10 Jan 2025 Theft (under $500) 1170 Stole $87.68 of petrol from Z Havelock North by filling his car and driving away without paying. 27 Jan 2025 Theft (under $500) 0530 Stole $152.46 of petrol from Z Tauhara, Taupo by filling his car and driving away without paying. 28 Jan 2025
Theft (under $500)
0860
Stole $128.73 of petrol from
Z Gisborne by filling his car and driving away without paying.
13 Feb
2025
Theft (under $500) 1172 Stole $101.48 of petrol from Mobil Waipukurau by filling his car and driving away
without paying.
14 Feb
2025
Theft (under $500) 0861 Stole $121 of petrol from Z Gisborne by filling his car and driving away without
paying.
15 Feb
2025
Theft (under $500) 0862 Entered Rebel Sports in Gisborne at around 2.20 pm and shoplifted shoes ($119
value).
22 Feb
2025
Theft (under $500) 1173 Stole $125.82 of petrol from Mobil Havelock North by filling his car and driving away without paying. 24 Feb 2025 Theft (under $500) 0929 Stole $132.58 of petrol from BP2GO Carlyle in Napier by filling his car and driving away without paying. 25 Feb 2025 Theft (under $500) 1188 Stole $101 of petrol from Z Energy Johnsonville by filling his car and driving away without paying. 4 March
2025
Theft (under $500) 0933 The appellant entered New World supermarket in Feilding and stole $310.96 worth of groceries. 12 March
2025
Failure to answer bail 1061 The appellant, having been released on bail on 27 February 2025, failed to appear in the Napier District Court as required. 22 March
2025
Theft ($500 -
$1000)
1082 The appellant shoplifted a Power tool (a DeWalt Driver Kit) valued at $549 from Mitre10 in Gisborne at around
11 am. The offending was captured on CCTV.
Procedural history
[4] Mr Utiera was arrested following the theft from the Warehouse. The charging documents record that he had first court appearances scheduled for his various charges on 7 February 2025, 12 March 2025, 20 March 2025, and 28 March 2025.
[5] On 7 February 2025, Mr Utiera was remanded on bail to reappear on 13 February 2025. Following that appearance, he was further remanded to 27 February 2025. His next appearance was on 12 March 2025, however he failed to appear. This failure was the subject of the failing to answer District Court bail charge.
[6] Five of the petrol station thefts occurred while Mr Utiera was on bail for his earlier offending, as did the Rebel Sport and New World thefts.
[7] Mr Utiera has 49 previous convictions for dishonesty offending, as well as a number of unrelated convictions.
District Court decision
[8] The Judge began by noting that a sentence of imprisonment was “inevitable”, and that Mr Utiera’s counsel had accepted that it was the only available outcome.5
[9] The Judge applied a starting point of one month’s imprisonment for each of the first four thefts under $500, taken chronologically in time.6 However, given that Mr Utiera had then continued to offend, the Judge considered the next four thefts must be regarded as more serious, and imposed a starting point of two months each for those charges. In relation to the third set of four thefts, the Judge considered a starting point at the maximum penalty of three months’ imprisonment was appropriate for each.7 That amounted to a total starting point of two years’ imprisonment for the 12 charges of theft under $500.
5 At [7].
6 At [7].
7 At [8].
[10] A starting point of eight months’ imprisonment was then taken in relation to the charge of theft between $500 and $1,000.8 A further uplift of four months was applied for the charge of failing to answer District Court bail.9 This amounted to an overall starting point of three years’ imprisonment.10
[11] The Judge applied an uplift of six months for Mr Utiera’s 49 previous dishonesty convictions, taking the total to three and a half years.11 He then reduced that amount by one year to adjust for totality.12 A further reduction of six months, or 20 per cent, was made in recognition of Mr Utiera’s guilty pleas.
[12] An end sentence of two years’ imprisonment was imposed for the overall offending.13 In terms of the apportionment of that sentence, concurrent sentences of two months’ imprisonment were applied on the first eight charges of theft under
$500.14 Cumulative sentences were then imposed for the remaining charges: eight months’ imprisonment for the charge of theft between $500 and $1,000; four months’ imprisonment for the charge of failing to answer bail;15 and three months’ imprisonment for each of the remaining four charges of theft under $500.16
[13] The Judge also imposed standard and special release conditions for six months post the sentence expiry date, including that Mr Utiera complete any programme, course, or counselling directed by a probation officer to address the causes of his offending.17
[14] The Judge declined to commute the short-term sentence of imprisonment to one of home detention “because of the nature of the offending, the sustained premeditated nature of it and Mr Utiera’s history of a full range of sentences contained in 16 pages of previous convictions”.18 He also noted concerns about previous
8 At [9].
9 At [10].
10 At [11].
11 At [11].
12 At [12].
13 At [12].
14 At [13].
15 At [14].
16 At [14]–[15].
17 At [16]–[17].
18 At [19].
non-compliance with community-based outcomes, and involvement with methamphetamine.19
Approach on appeal
[15] The appeal is brought pursuant to s 244 of the Criminal Procedure Act 2011. This Court must allow the appeal only if it is satisfied that there was an error in the sentence and that a different sentence should be imposed.20 The statutory test has long been interpreted to mean that the court will allow the appeal only if the sentence is manifestly excessive.21 In Tutakangahau v R, the Court of Appeal noted that generally an appellate court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.22 The focus is on the outcome of the final sentence, rather than “the route by which the judge reached that outcome”.23
Grounds of appeal
[16] Mr Utiera submits that the Judge erred in imposing a sentence that was manifestly excessive, by:
(a)adopting excessive starting points;
(b)using cumulative sentences for offending that was similar in kind and should have been approached on a concurrent basis;
(c)imposing uplifts that were too high;
(d)giving insufficient credit for guilty pleas entered at the first reasonable opportunity;
(e)failing to impose concurrent end sentences;
19 At [20].
20 Criminal Procedure Act 2011, s 250(2).
21 Kumar v R [2015] NZCA 460 at [81].
22 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
23 Ripia v R [2011] NZCA 101 at [15].
(f)the errors together were so profound that adjustment for totality could not correct the sentence; and
(g)reaching an end sentence of two years’ imprisonment that was manifestly excessive — being twice the maximum penalty for the lead offence.
[17] For reasons discussed below, I have concluded that the end sentence was manifestly excessive. In reaching that conclusion, I begin by considering the Judge’s approach to setting the starting points for the charges of theft, and whether this resulted in an overall starting point that was too high. I then turn to address the uplifts applied, adjustment for totality, and the discount for his guilty plea.
Were the starting points excessive?
The Judge’s approach
[18]Mr Ryan summarised the starting points as follows:
[19] The Judge set the starting points for the charges of theft under $500 on a scaled basis, increasing the starting point for each set of four charges (based on when they occurred in time), to reflect the fact that Mr Utiera had continued to offend, and therefore each charge was progressively more serious.
[20] Mr Ryan takes issue with this approach and submits that it is inconsistent with the case law. He also notes that in setting the starting points, the Judge did not refer to relevant factors such as the value of the items stolen. He submits that the starting point should have been in the region of eight months for all of the theft charges, referring to a number of cases in support.
[21] Ms Cleary, for the Crown, submits that while the approach was novel, it is supported by s 8 of the Sentencing Act 2002, and the overall starting point of 24 months for the 12 thefts under $500 was not manifestly excessive. She says no issue can be taken with the starting points of one month’s imprisonment for each of the first four thefts. In regard to the second set of four thefts, which attracted starting points of two months’ imprisonment, the Crown says this reflected the fact that by that stage, Mr Utiera had already committed the previous four thefts. Ms Cleary accepts that the starting points of three months’ imprisonment for the last four thefts are, when viewed in isolation, not supported by the case law and arguably excessive. However, she notes that this reflected Mr Utiera’s continued offending, and he had very recently appeared in court for the Warehouse theft and was on bail. Therefore, that offending was arguably the most serious of its kind.
[22] The Crown further submits that the starting point of eight months’ imprisonment for the charge of theft between $500 and $1,000 was stern but appropriate, given that Mr Utiera had appeared in relation to other active dishonesty charges, it was the last in a series of 12 recent thefts, and it represented an escalation in offending.
Approach in the case law
[23] I now turn to the cases referred to by each of the parties, beginning with those cited by Mr Ryan.
[24] First, in Henry v Police, the appellant had pleaded guilty to 13 charges of theft of goods valued at a total of $5,568.23 (eight charges under $500 and five charges between $500 and $1,000), one charge of breaching release conditions, and one charge
of possession of methamphetamine.24 In discussing the approach to sentencing, the High Court on appeal observed that the sentencing Judge’s approach of fixing a single sentence to cover the thefts was unorthodox. The usual approach would be to identify a lead charge, impose a sentence that reflected the criminality of that lead charge and then impose sentences for the remaining offences.25 Of the total of 13 shoplifting charges, six arose from a one-day spree, and the remaining seven were for thefts carried out over an eight month period.26 A starting point of eight months had been adopted for all the shoplifting offending without reference to authority,27 and the High Court noted that a starting point of six months would have been available for the spree alone.28 However, the fact that a starting point was fixed in respect of all 13 charges had not in itself resulted in a manifestly excessive sentence.
[25] In Ross v New Zealand Police, the appellant had pleaded guilty to 12 charges of theft under $500, two charges of theft between $500 and $1,000, four charges of theft over $1,000, three charges of breach of release conditions, and one charge each of failing to remain stopped and driving while forbidden.29 On appeal, the High Court considered a starting point of 15 months would have been appropriate for the lead charge of theft, where the appellant had stolen two drones with a combined value of
$6,849.30 The Court further held that an uplift of nine months for the other offending, involving theft of goods valued at over $17,800, was within range.31
[26] In Atkins v Police, the appellant had been convicted on nine charges of theft over $1,000, together with charges of theft between $500 and $1,000, driving while disqualified (third or subsequent), and wilful damage.32 On appeal, the High Court noted that “a safer approach” to determining the starting point would have been to fix a starting point for the most serious theft, and apply an uplift to account for the remainder of the offending of the same type.33 The Judge referred to the principle that
24 Henry v Police [2016] NZHC 800.
25 At [23].
26 At [20]–[22].
27 At [24].
28 At [30].
29 Ross v New Zealand Police [2022] NZHC 2527.
30 At [19].
31 At [22].
32 Atkins v New Zealand Police [2024] NZHC 1730.
33 At [17].
concurrent sentences are appropriate where offences are of a similar kind and are a connected series, and noted that in that case all of the thefts were very similar and occurred within a 12-day period. A starting point of 12 months was taken for the lead charge of theft of goods valued at $2,959 from Mitre 10 Mega.34 An uplift of 16 months was applied for the other theft charges,35 and a further three months for the remaining charges.36 That amounted to a global starting point of 31 months’ imprisonment, with no adjustment for totality.37
[27] Finally, in Martin v New Zealand Police, the appellant had been sentenced on 12 charges, including three charges of theft under $500, and one charge of theft between $500 and $1,000.38 The thefts included $689.95 and $273.99 worth of goods being stolen from Rebel Sport on two separate occasions, and two petrol drive-offs in which the appellant stole $99.46 and $119.46 worth of fuel respectively.39 On appeal, the starting point of eight months for the theft offending was reduced to five months.40 Following uplifts for the other charges, an overall starting point of 19 months was adopted.41
[28] The Crown submits that, here, the starting points of one month’s imprisonment on the first petrol station thefts were consistent with those adopted in Smith v Police.42 In that case, the appellant had been convicted of 29 charges of theft, and the District Court Judge adopted cumulative starting points of one month for each charge. On appeal, the High Court described that as “a pragmatic and uncomplicated approach… adopted without reference to authorities”.43 However, the Judge had failed to consider the totality principle, with the Court noting that the adjusted starting point must reflect the number of charges and length of time over which the offending occurred.44 Given that the value of each theft was less than $500, the total value of the stolen property carried less weight. Nevertheless, the Court considered that “this
34 At [18].
35 At [21].
36 At [22].
37 At [23].
38 Martin v New Zealand Police [2022] NZHC 856.
39 At [14]–[15].
40 At [39].
41 At [44].
42 Smith v Police [2025] NZHC 244.
43 At [20].
44 At [21]–[22].
was an example of persistent and premeditated offending, and it was deserving of a stern sentence that might deter a recidivist shoplifter”.45 The Crown submits that a similar observation can be made in this case. Ultimately, the Court in Smith considered a starting point of 22 months’ imprisonment was appropriate and reflected the appellant’s culpability for the 29 distinct offences.46
[29] In McKenzie v Police, the appellant pleaded guilty to four charges of theft under $500, two charges of failing to answer bail, and two charges of breaching conditions.47 An overall starting point of six months’ imprisonment was imposed on the theft charges, which the Crown notes equated to cumulative starting points of one and a half months on each charge.48 An uplift of two months was applied for the non-compliance charges.49
[30] Furthermore, in Kelly v New Zealand Police, the appellant had been sentenced on three charges of theft under $500, and one charge each of theft between $500 and
$1,000, trespass, and breach of community work order.50 On appeal, the High Court
considered that a starting point of 12–13 months was within range.51 This was on the basis that a starting point of four to five months’ imprisonment for theft committed a day after appearing in court for similar offending was not unreasonable, together with uplifts of two months for previous history, two months for offending while on bail, three months for the less serious theft charges, and one month for the breach of community work order.52 The final sentence of eight months’ imprisonment was described as “stern” and at the top end of the available range, but to interfere with that on appeal would be tinkering.53
[31] Finally, in Kennedy v New Zealand Police, the appellant had been sentenced on six charges of theft under $500.54 Against the background of the appellant’s
45 At [22].
46 At [25].
47 McKenzie v New Zealand Police [2015] NZHC 2742.
48 At [17] and [27].
49 At [27].
50 Kelly v New Zealand Police [2013] NZHC 1250.
51 At [34].
52 At [33]–[34].
53 At [37].
54 Kennedy v New Zealand Police [2013] NZHC 714.
extensive criminal history and the need to protect the community, the High Court did not interfere with the total starting point of 12 months’ imprisonment imposed at sentencing. The Judge described the appellant as someone who “cannot be deterred”, and who “will continue to offend more or less incessantly”.55 The Crown submits that the same reasoning can be applied to Mr Utiera.
Cumulative vs concurrent sentences
[32] Mr Ryan submits that the approach taken by the Judge was a departure from the orthodox approach set out in Henry.56 As in Atkins, the proper approach would have been to fix a starting point for the lead charge, then apply an uplift for the 13 minor charges.57 He says the grouping of the thefts on a scale, and the imposition of cumulative starting points for each charge, has resulted in a sentence that is manifestly excessive.
[33] The Crown disputes this, and says that a number of cases have used cumulative sentences where there are a large number of charges which each attract a relatively low maximum penalty. For instance, in Smith the Court considered that it was:58
…plainly appropriate that the Judge impose cumulative sentences for the individual theft charges in order to arrive at an appropriate sentence, notwithstanding that Mr Smith’s offending reflected a pattern of connected offences.
[34] Section 84 of the Sentencing Act provides guidance on the use of cumulative and concurrent sentences of imprisonment. Cumulative sentences are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences. Conversely, concurrent sentences are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.
[35] As Mr Ryan notes, the Judge appeared to acknowledge the connected nature of the offending. He described the offending as a “travelogue around the North Island
55 At [10].
56 Henry, above n 24, at [23].
57 Atkins, above n 32, at [17].
58 Smith, above n 42, at [19].
from December [2024] to late March [2025]”,59 and “a sustained period of premeditated, deliberate dishonesty”.60
[36] While the thefts under $500, particularly the service station thefts, could have been sentenced concurrently given their similarity and persistence over time, the Judge made no error per se in sentencing them on a cumulative basis. The offending differed from that in Henry, where a number of the thefts occurred within a single day. However, the key question is whether the value of the starting points fixed resulted in a sentence that was manifestly excessive. By way of comparison, I now turn to assess what the starting point would have been, had a lead charge been taken and uplifts applied.
Was the starting point too high for the theft charges?
[37] There is no tariff case for theft charges, given the wide-ranging circumstances in which such offending can occur.61 However, starting points are generally adopted by reference to the value of the items taken and any aggravating features of the offending.
[38]A conventional approach would have been to take the charge of theft between
$500 and $1,000 as the lead charge, and apply uplifts for the charges of theft under
$500.
[39]The Crown notes that each instance of offending involved goods valued at over
$100. However, the items stolen were generally well below the $500 threshold for the next band of theft. The charge of theft between $500 and $1,000 involved stolen property valued at $549, only just above the $500 threshold. The total value of all the items taken across the offending was $2,420.20. The value of the stolen goods is less of a factor in this type of serial offending, nevertheless it remains relevant in determining the seriousness of the offending. On that basis, it cannot be said that the charges of theft were the most serious of their kind.
59 Judgment under appeal, above n 4, at [1].
60 At [5].
61 Atkins, above n 32, at [19].
[40] Based on the case law above, particularly Kelly,62 consistency suggests a starting point of four months would have been appropriate for the lead charge of theft between $500 and $1,000, given the relatively low value of the goods taken. An uplift of approximately five months would be warranted for the nine charges of theft under
$500 relating to the petrol drive-offs, together with a further three months for the charges relating to the Warehouse, Rebel Sport, and New World thefts. While the overall value of the stolen goods is similar across the petrol-drive off charges and the shoplifting charges, the repetitive nature of the petrol drive-offs is a relevant factor warranting a higher starting point. This amounts to an overall starting point of 12 months’ imprisonment for the theft charges.
[41] The 12-month starting point is broadly consistent with Martin, in which a total of $1,182.86 worth of goods (about half of the amount here) was stolen across four theft charges, and an overall starting point of five months was taken. It is also in line with Smith, where a starting point of 22 months was taken for over double the amount of charges, albeit all of the charges in that case were for theft under $500. Many of the other cases referred to above involved stolen goods of significantly greater value, which explains the higher starting points taken in those cases.
[42] The “life-long” pattern of offending referred to by the Crown is a personal aggravating factor which is relevant to any uplift applied for previous convictions.
[43] By applying cumulative starting points on an increasing scale, the Judge arrived at an overall starting point of 24 months’ imprisonment for the theft charges. In the circumstances, this was more than just stern, and was outside the appropriate range. A starting point of 12 months would have been more appropriate.
Uplift for failing to answer bail charge
[44] Mr Ryan submits that the Judge erred in applying an uplift for the charge of failing to answer bail.
62 Kelly, above n 50
[45] The Judge observed that “a significant number of these matters were committed after you had failed to turn up in court and you failed to answer your bail”.63 Mr Ryan notes that, in fact, only one of the charges arose after Mr Utiera failed to appear in March 2025. He submits that the punitive consequence of failing to answer bail is that Mr Utiera has received a further conviction, and a term of imprisonment for charges that may otherwise have attracted a community-based or EM sentence. Mr Ryan says a four-month uplift for a failing to answer bail charge is excessive.
[46] The Crown does not dispute that the uplift of four months was excessive, and says an uplift of no more than two months was appropriate. Ms Cleary accepts that the Judge made a factual error in asserting that a number of the offences had been committed after Mr Utiera failed to answer bail, but notes that a number of them occurred while he was subject to bail. Furthermore, it was the most serious theft which was committed after Mr Utiera had failed to appear. An uplift of six months’ imprisonment for failing to answer bail was applied in R v Burns, however, that was in the context of far more serious violent offending.64 The Crown also refers to a number of other examples of cases in which a one-month uplift was applied for failing to appear.65
[47] I consider that an uplift of one month was appropriate in the circumstances, taking the overall starting point to 13 months’ imprisonment.
Adjustment for totality
[48] Mr Ryan submits that the Judge’s one-year adjustment for totality was insufficient and resulted in an excessive starting point, particularly in light of the value of the stolen goods in comparison to other cases.
[49] The Crown submits that the totality adjustment was appropriate, and notes that this came after the uplift for previous convictions (which is a personal aggravating factor and not part of the starting point). Counsel notes that in comparable cases, such
63 Judgment under appeal, above n 4, at [10].
64 R v Burns [2025] NZHC 1082 at [51]–[59].
65 See Williams v Police [2014] NZHC 2622 at [23]; and Dick v Police [2014] NZHC 434 at [21].
as Atkins, no totality adjustment was made (in that case to a starting point of 31 months).66
[50] If the approach set out above is taken in setting the starting point, no totality adjustment needs to be made to the overall figure of 13 months. However, for completeness, I assess the totality adjustment applied by the Judge below.
[51] Section 85 of the Sentencing Act requires the court to consider the totality of the offending when imposing sentences of imprisonment for two or more offences. Each individual sentence must reflect the seriousness of the relevant offence.67 If cumulative sentences are imposed, they must not result in a total period of imprisonment that is wholly out of proportion to the gravity of the overall offending.68 If concurrent sentences are imposed, the most serious offence must receive the penalty that is appropriate for the totality of the offending.69
[52] The totality adjustment was applied to the starting point as well as the uplift for previous convictions. Generally, following the Moses v R methodology, previous convictions are a personal aggravating factor and should be taken into account at the second stage of the sentencing process.70 If a totality adjustment is made only to the starting point, the overall assessment of the seriousness of the offending is more transparent.71 However, it is open to a judge to make a totality adjustment before or after the uplift for previous convictions. As will be apparent, I consider that the excessive starting points taken by the Judge resulted in an end sentence that was manifestly excessive, despite the adjustment for totality.
Uplift for previous convictions
[53] Mr Ryan submits that an uplift of six months for Mr Utiera’s previous convictions was excessive and disproportionate, posing the risk of “double counting”. He contends that an uplift of no more than two months was appropriate.
66 Atkins, above n 32, at [23].
67 Section 85(1).
68 Section 85(2).
69 Section 85(4)(a).
70 See Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [9] and [46].
71 See Huata v R [2024] NZCA 521 at [32]–[40].
[54] The Crown, while acknowledging the relevance of the right to be free from double jeopardy in this context,72 submits that the uplift was justified. This is on the basis of Mr Utiera’s extensive criminal history and the penalties imposed for that offending, which include numerous sentences of imprisonment.
[55] There was clearly a basis for an uplift in this case, given Mr Utiera’s consistent pattern of offending. However, the figure of six months, when taken in the context of the overall sentence, was too high. I consider an uplift of four months for previous convictions is appropriate.
[56] Applied to the starting point of 13 months, this takes the sentence to 17 months’ imprisonment.
Discount for guilty plea
[57] Mr Ryan submits that the credit of 20 per cent for Mr Utiera’s guilty plea was insufficient, and a 25 per cent credit ought to have been allowed.
[58] Mr Utiera pleaded guilty to all charges on 16 April 2025, which Mr Ryan says was his first appearance in front of a District Court Judge after he had been able to instruct counsel. Mr Ryan submits that the Judge’s reason for reducing the discount, being that “so much” of the offending was committed after Mr Utiera was meant to have appeared in court, was inappropriate, because as noted above, only one offence occurred after he failed to appear. The Crown agrees with this point. Furthermore, Mr Ryan contends it was overly harsh to take the charge of failing to appear into account in reducing the guilty plea discount, as well as applying an uplift on that basis, on top of the conviction Mr Utiera had already received for it.
[59] The Crown submits that the decision not to give full credit for Mr Utiera’s guilty pleas is justifiable on the basis that the offending was caught on CCTV and therefore not capable of defending. Ms Cleary cites Smith, in which a 20 per cent
72 New Zealand Bill of Rights Act 1990, s 26(2). See also Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [39].
discount was given for guilty pleas entered at a similarly early stage where the offending was captured on CCTV.73
[60]The Supreme Court in Hessell v R noted that:74
A plea can reasonably be seen as early when an accused pleads as soon as he or she has had the opportunity to be informed of all implications of the plea.
[61] However, the Court also rejected the notion that a full 25 per cent discount should be imposed for a prompt guilty plea “no matter what”, noting that such an approach would be “likely to lead to the criticism that unjustified windfall benefits are provided by the system to those who have little choice but to plead guilty”.75
[62] It was open to the Judge to apply a guilty plea discount of 20 per cent. Applied to the 13-month starting point, this would amount to a discount of approximately two and a half months, resulting in an end sentence of approximately 14 and a half months’ imprisonment. The difference between that and the sentence of two years imposed in the District Court is sufficient to lead me to conclude the sentence was manifestly excessive.
[63] The sentence imposed was a short-term sentence of imprisonment, and the Judge considered and ultimately declined leave for Mr Utiera to apply for home detention. Given the lack of an available address and the time already served, that decision was not challenged by Mr Utiera on appeal, and in those circumstances does not need to be considered further.
Conclusion
[64]The appeal is allowed.
[65] The sentence of two years’ imprisonment is set aside, and a sentence of 14 and a half months’ imprisonment is imposed.
73 Smith, above n 42, at [8].
74 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].
75 At [60].
[66]The end sentence is to be apportioned as follows:
(a)Four months’ imprisonment on the charge of theft between $500 and
$1,000.
(b)One month’s imprisonment on each of the nine petrol drive-off charges of theft under $500, cumulative.
(c)One and a half month’s imprisonment on the charge of failing to answer bail, cumulative.
(d)Two months on the each of the three remaining shoplifting charges of theft under $500, concurrent.
Grice J
Solicitors:
Public Defence Service, Hawkes Bay for Appellant Elvidge & Partners, Napier for Respondent
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