Vaipapalangi v The King
[2025] NZHC 1921
•14 July 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2025-404-000198 CRI-2025-404-000199 [2025] NZHC 1921
BETWEEN PAULA VAIPAPALANGI
Appellant
AND THE KING
Respondent
Hearing: 14 July 2025
Appearances: M Taylor-Cyphers on behalf of A Ives for Appellant R van Boheemen for Respondent
Judgment: 14 July 2025
Reasons: 14 July 2025
Reissued: 17 July 2025
REASONS FOR JUDGMENT OF VENNING J
This judgment was delivered by me on 14 July 2025 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Meredith Connell, Auckland Counsel: A Ives, Barrister, Auckland
VAIPAPALANGI v R [2025] NZHC 1921 [14 July 2025]
[1] Paula Vaipapalangi pleaded guilty to charges of burglary and demanding with intent to steal; possession of an offensive weapon; refusing a request to give blood (third and subsequent) and driving while suspended (third and subsequent). Judge P J Sinclair sentenced Mr Vaipapalangi to imprisonment for a period of 29½ months.1 Mr Vaipapalangi appeals against sentence.
[2] At the conclusion of the appeal hearing I dismissed the appeal with reasons to follow. These are the reasons.
Background
[3]I take the summary of facts from the Judge’s sentencing notes:
[3] The summary of facts for the burglary and demanding with intent to steal are as follows. Mr Vaipapalangi, you are a patched member of the Head Hunters motorcycle gang and Mr Astle, you were a prospect at the time of the offending.
[4] On 10 June 2023, Mr Vaipapalangi, you arranged for Mr Astle and another unidentified person to go to the Desire Love Motel, a brothel in Hillcrest. Later that day in the evening, Mr Astle, you and an associate arrived at the motel wearing disguises and armed with a baseball bat. You entered the building and rang the door buzzer on an internal door and demanded to speak to the owner pointing the bat at one of the employees. The employee opened the door, and you and your associate walked past her and began to smash the front room of the business using the baseball bat. You took turns with your associate going behind the bar and front counter to damage and destroy bottles of alcohol, the cash register, drink coolers, computers, a mirror, and the bar area in general. Your associates told the employee that they had to pay the Head Hunters’ patch. As you and your associate left, you smashed two large glass panels at the front door of the motel.
[5] Mr Vaipapalangi, analysis of your phone seized during a search of your address located a Snapchat screenshot of the Desire Love Motel business card, together with a caption “all done Doco”, and referred to the owner’s number and that the motel had been smashed.
[6] On 13 June 2023, staff members at the motel began to receive a series of threatening phone calls from both of you and/or your associates. On 23 June, Mr Astle, you called Frederico Ronnau’s mobile number and arranged to meet him. You identified yourself as “James”. You told him not to bring the police “because if you do, things are going to go worse for you and your club”.
[7] On 24 June, Mr Vaipapalangi, you phoned Frederico Ronnau to discuss a meeting time and place. You warned Mr Ronnau not to “set you up
1 R v Vaipapalangi [2025] NZDC 3136.
with police” or otherwise your associates would return to the shop and destroy it. You ended the call by thanking Mr Ronnau for his time.
[8] Mr Vaipapalangi, on 28 June you phoned Mr Ronnau again. You identified yourself as “James” and stated you represented the local gang. You told him that you were with the local gang who runs all the brothels in the area and that “they all had to pay you”, and Mr Ronnau had to pay you as well. You advised Mr Ronnau that you and the neighbouring businesses had tried to prevent the Desire Love Motel from setting up in the area. When Mr Ronnau said that the business was losing money, you told him that all brothels initially stated that, but if he wanted to have “safety, peace, and security in his area”, he had to pay. You warned Mr Ronnau that if he did not pay “they were going to have very bad business”.
[9] You provided Mr Ronnau with another option to hire one of “your guys as a security guard” and that you were looking for $1,500 per week or every two weeks in wages. In order to appease you, Mr Ronnau offered to sell the business to you at half price and you agreed but said in the meantime that Mr Ronnau had to either pay you or hire your boys as security. You told him that you were “a businessman, but at the same time in the gang and a gangster”.
[10] Mr Vaipapalangi, with respect to the other three charges for the refusing request to give blood third and subsequent, you were convicted of excess breath alcohol charges in 2008 and 2018. On 19 November 2024, you were the driver of a car. You were stopped by police as you were breaching your electronically monitored bail. You showed signs of recent alcohol consumption. You refused to engage in the evidential breath test procedures, and further refused a request for a blood specimen.
[11] With regard to the unlawful possession of offensive weapon and driving whilst suspended third and a subsequent, as a result of the driving whilst refusing third and subsequent charge, you were suspended from driving for a period of 28 days. On 30 November 2024, you were driving a car in Beach Haven. You were stopped by police and confirmed to be a suspended driver. The police arrested you for a separate matter and during the search a functioning taser disguised as a torch was located in your waist bag.
The District Court sentence
[4] Judge Sinclair took the burglary charge as the lead offence. She took a starting point of three years for Mr Astle. For Mr Vaipapalangi she took a starting point of three years, three months. The Judge considered that although not physically present, Mr Vaipapalangi was the instigator of the offending and that he had used his status within the Head Hunters to have Mr Astle carry out the burglary at his direction.
[5] The Judge then noted that the demanding with menaces offending would have supported a starting point of 18 months’ imprisonment but, having regard to totality she adjusted the starting point by nine months’ imprisonment.
[6] The Judge then allowed credits of 10 per cent to take account of Mr Vaipapalangi’s personal circumstances (to include an injury he had sustained as a result of a motorcycle accident, and his acknowledgement of remorse). The Judge also allowed a discount of 15 per cent for the rehabilitative efforts Mr Vaipapalangi had demonstrated. For the guilty plea, which was entered on the morning of trial, the Judge allowed 15 per cent. Finally, the Judge allowed a period of five months to reflect the restrictive conditions of EM bail that Mr Vaipapalangi had been subject to for just under a year. The Judge then uplifted the adjusted sentence by two months to take account of Mr Vaipapalangi’s previous convictions. That led to the end sentence of 29½ months’ imprisonment.
Appeal points
[7] Ms Ives submitted the Judge erred by adopting a too high a starting point for the burglary and demanding with menaces offending and by providing insufficient credit for mitigating factors, in particular the significance of Mr Vaipapalangi handing in his patch to the Head Hunters gang and the fact he had distanced himself from the gang since the offending. As a result the end sentence was manifestly excessive. Ms Ives submitted the appropriate end sentence was one of two years or less which would have permitted a sentence of home detention.
Approach to the appeal
[8] On an appeal against sentence this Court must allow the appeal if satisfied that for any reason there is any error in the sentence imposed and a different sentence should be imposed. In any other case the appeal must be dismissed.2
[9] In Tutakangahau v R the Court of Appeal confirmed the Criminal Procedure Act 2011 was not intended to change the approach taken to sentencing appeals.3 The ultimate question is still whether the end sentence imposed was manifestly excessive. It is not a question of how the individual components of the sentence are made up but rather the end result.
2 Criminal Procedure Act 2011, s 250(2)
3 Tutakangahau v R [2014] NZCA 279.
Appeal submissions
[10] In her written submissions, Ms Ives submitted the starting point for Mr Vaipapalangi was excessive on two grounds. First, having regard to comparable case law and second, the difference between Mr Vaipapalangi’s starting point and Mr Astle’s starting point was unjustified and offended the principle of parity.
[11] As to Mr Vaipapalangi’s personal circumstances in her written submissions Ms Ives had argued that the impact of incarceration on his health and the fact that he handed in his gang patch would have warranted a 10 per cent discount. His remorse should have attracted a distinct discount of five per cent. She argued the Judge erred in allowing a discount of only 10 per cent for all those factors combined. Taken with the discounts of 15 per cent for the rehabilitative efforts and the 15 per cent for the guilty plea, that would have supported an overall discount of 45 per cent.
[12] In her oral submissions Ms Taylor-Cyphers emphasised that Mr Vaipapalangi was not physically present at the premises that were burgled and was only responsible for instigating the burglary. His starting point should therefore have been lower than Mr Astle, the person who actually carried out the burglary. She effectively suggested Mr Astle may have gone further than Mr Vaipapalangi had intended or directed.
[13] In the written submissions counsel referred to the Court of Appeal decisions of Harvey v R and Shailer v R which confirm that parties who play a secondary or limited part in the commission of the offence may have reduced culpability which will reduce the starting point.4 She submitted the starting point for Mr Vaipapalangi should have been less than the three years’ starting point for Mr Astle. I agree with the principle, but the issue remains the level of Mr Vaipapalangi’s culpability in this case.
[14] Counsel also referred to the case of Huata v R.5 Mr Huata was charged with three sets of offending, one of which concerned a charge of burglary arising in the course of a “gang taxing”. In that case three associates went to a domestic address in mid-afternoon. They entered the home. While the occupants locked themselves in a
4 Harvey v R [2017] NZCA 171; and Shailer v R [2017] NZCA 38.
5 Huata v R [2024] NZCA 521.
separate room the offenders searched the house under the direction of a fourth co- defendant. They kicked down the locked door and searched that room taking a number of items, including a tablet, watch, cash and two phones and CCTV hard drive. A starting point of three and a half years’ imprisonment was imposed at first instance and undisturbed on appeal.
[15] Counsel submitted the present offending was considerably less serious than that of Huata. There were fewer number of offenders. The present burglary was of a commercial premises rather than a dwellinghouse and there was no forced entry. She suggested a starting point for Mr Vaipapalangi’s role should have been in the range of 18–24 months’ imprisonment.
[16] However, against that is the case of Zafar v Police.6 That also involved a gang taxing. Justice Ellis effectively confirmed the sentencing judge’s starting point of four years.
[17] In relation to the demanding with menaces counsel referred to Opetaia v R.7 While the Court of Appeal upheld a starting point of two years’ imprisonment in that case, she suggested that the current offending was less serious than that in Opetaia. Counsel also referred to the case of R v Zheng.8 Having regard to totality, she argued the nine months adopted by the Judge in the present case was excessive. Having regard to totality, the global starting point for Mr Vaipapalangi should have been between 30 and 36 months’ imprisonment.
[18] Next, in relation to mitigating factors, Ms Ives had referred to Mr Vaipapalangi’s debilitating injury to his dominant right arm and hand resulting from a motor cycle accident in 2022. She submitted a discrete discount of five per cent was available for that. His handing in of his gang patch warranted a further five per cent on its own. As to remorse, counsel submitted a further five per cent on its own was appropriate.
6 Zafar v R [2014] NZHC 3084.
7 Opetaia v R [2011] NZCA 621.
8 R v Zheng [2012] NZHC 1102.
[19] Ms Taylor-Cyphers presented the Court with two medical certificates from 2023 which confirmed Mr Vaipapalangi’s injury and that the treatment was not available in Mt Eden Prison.
[20] Counsel submitted an end result of home detention would enable Mr Vaipapalangi to continue his rehabilitative effects.
[21] On the three other charges Mr Vaipapalangi had pleaded to, again having regard to totality, she imposed an uplift of six months’ imprisonment which led to an adjusted start point for sentence of four years, six months.
Discussion
[22] Noting that counsel does not challenge the six month uplift for the more minor offending the focus is on the four years’ totality for the burglary and demanding with menaces.
[23] Although Mr Vaipapalangi did not attend the premises physically he instigated and directed the offending. A particular aggravating feature of his offending was the role he held in the Head Hunters gang at the time and his use of that position to effectively direct the offending by Mr Astle and the other offender. I agree with the Crown’s submission that aspects of the summary of facts provide a clear basis for an inference that Mr Vaipapalangi directed the damage at the brothel. To that extent he was responsible for it. He said he would get the prospects to do it, and when they reported back with a screenshot of the brothel’s business card and a caption “all done Doco” and referred to the owner’s number and that the motel had been smashed, there was no adverse response from Mr Vaipapalangi. To the contrary, he relied on that damage to reinforce the threats when he committed the related offending.
[24] In Howard v R, the Court of Appeal considered the position of a secondary party who had organised or directed the offending.9 The Court approved Collins J’s reasoning in R v Huata, where he treated the principal and party as equally culpable. The Court of Appeal noted there was no reason in principle that the culpability of the
9 Howard v R [2018] NZCA 633.
party could not be greater than the principal, resulting in a higher starting point, though the situation was likely to be rare.
[25] In the present case the Judge was entitled to take the view that Mr Vaipapalangi was the leader of the offending and used his status in the gang to direct Mr Astle to commit the offending. The principle of parity is not affected when one has regard to their respective roles. The starting point of three years, three months is itself not exceptional in the circumstances. But even if it was reduced to three years, for the reasons that follow the end sentence was well within range and is certainly not manifestly excessive.
[26] In Huata, a starting point of three and a half years’ imprisonment was taken. In Huata there was no use of disguises and the offending occurred mid-afternoon rather than at 9.00 pm as in the present case. While Huata involved the burglary and invasion of a domestic home, it does not appear weapons were used whereas in the present case the offenders were armed with a baseball bat and deliberately carried out serious damage to the premises.
[27] The gang context is also particularly relevant in the present case. As Ellis J held in Zafar v R:10
In my view the practice of “taxing” by gangs or those associated with them is particularly pernicious and warrants a strongly deterrent sentencing message.
[28] Further and in any event, Mr Vaipapalangi’s role in the related demanding with menaces offending was itself serious. It could have supported a starting point of at least 24 months. The reduction to nine months for totality could be regarded as generous to Mr Vaipapalangi.
[29] Having regard to the above, a starting point in the region of four to four and a half years for the burglary and demanding with menaces would have been open to the Judge even having regard to totality. The four years taken by the Judge was at the lower end of that scale. As noted, the uplift for the other, more minor offending of six months is not challenged.
10 Zafar v R, above n 6, at [35].
[30] During the oral hearing Ms Taylor-Cyphers realistically accepted that 40 per cent for the rehabilitative steps Mr Vaipapalangi had taken (including returning his patch), his personal circumstances and expressions of remorse, which the Judge accepted, and guilty plea was a significant discount, particularly having regard to the further five months reduction for time spent on EM bail. That was a responsible concession. The 15 per cent for guilty plea, albeit after negotiation, was particularly generous and the information regard the injury is somewhat dated.
Result
[31] The overall end result of 29½ months was well open to the Judge and is not manifestly excessive. A sentence less than imprisonment was never realistic and would not have been appropriate in the present case.
[32]For those reasons the appeal was dismissed.
Venning J
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