Waaka v The King
[2025] NZHC 2851
•30 September 2025
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2025-419-64
[2025] NZHC 2851
BETWEEN NGARIKI WAAKA
Appellant
AND
THE KING
Respondent
Hearing: 10 September 2025 Appearances:
C Hardy for Appellant K Dillon for Respondent
Judgment:
30 September 2025
JUDGMENT OF WILKINSON-SMITH J
This judgment was delivered by me on 30 September 2025 at 10.30 am.
………………………… Registrar/Deputy Registrar
Solicitors:
Public Defence Service, Hamilton Hamilton Legal, Hamilton
WAAKA v R [2025] NZHC 2851 [30 September 2025]
Introduction
[1] Mr Waaka appeals against a sentence of four years and one month’s imprisonment imposed by Judge N R Dawson in the District Court at Hamilton on 20 May 2025.1 The charges in respect of which Mr Waaka was sentenced were:
(a)one charge of injuring with intent to injure;2
(b)19 charges of driving while disqualified (third or subsequent);3
(c)18 charges of theft of property not exceeding $500 in value;4
(d)three charges of theft of property exceeding $500 in value but not exceeding $1,000 in value;5
(e)one charge of aggravated injury;6
(f)one charge of burglary;7
(g)one charge of possessing goods capable of being used to facilitate crimes involving dishonesty with intent;8
(h)one charge of breach of conditions of intensive supervision;9 and
1 New Zealand Police v Waaka [2025] NZDC 10999.
2 Crimes Act 1961, s 189(2); maximum penalty five years’ imprisonment.
3 Land Transport Act 1998, s 32(1)(a) and (4); maximum penalty two years’ imprisonment or $6,000 fine. The Court must also order disqualification from holding or obtaining a driver licence for at least one year.
4 Crimes Act, ss 219 and 223(d); maximum penalty three months’ imprisonment. Section 66(a) was also engaged in respect of some of the offences.
5 Crimes Act, s 219 and 223(c); maximum penalty one year’s imprisonment.
6 Crimes Act, s 191(2); maximum penalty seven years’ imprisonment.
7 Crimes Act, s 231(1)(a); maximum penalty 10 years’ imprisonment.
8 Crimes Act, s 228C; maximum penalty three years’ imprisonment. I note that Mr Waaka would have been charged under the version of the Crimes Act that was in force as at 13 April 2023, and the relevant legislative reference in the current version of the Act is s 239C.
9 Sentencing Act 2002, s 70A(a); maximum penalty six months’ imprisonment or $1,500 fine.
(i)one charge of breach of conditions of community work.10
[2] Mr Waaka submits that the sentence imposed by the Judge is manifestly excessive. His grounds of appeal include claims that:
(a)the Judge imposed a starting point that is too high in respect of the injuring with intent to injure charge;
(b)the Judge made an error of fact in identifying the victim of the aggravated injury as an “elderly male” and treating this as an aggravating feature in relation to that charge;
(c)the Judge adopted a previous sentence indication that had been declined, without having regard to the submissions made and information available at sentencing;
(d)the Judge referred to the summaries of facts for three charges that had been withdrawn;
(e)the Judge awarded an insufficient reduction for guilty plea;
(f)the Judge awarded an insufficient reduction for remorse and participation in restorative justice; and
(g)the Judge failed to assess the sentence for totality.
[3] The Crown opposes the appeal, submitting that the starting point adopted and reductions applied were within the available range, and that the sentence imposed was not manifestly excessive.
10 Sentencing Act, s 71(1)(a); maximum penalty three months’ imprisonment or $1,000 fine.
The offending
[4] The charge of injuring with intent to injure arose out of an incident on 12 May 2024. The summary of facts records that the victim, Mr Waaka and Mr Waaka’s co-offender, Ms Tohiariki, were at the victim’s address.
[5] The victim asked the offenders to help clean up the property. Mr Waaka and his co-offender became verbally abusive towards the victim. The co-offender grabbed the victim’s hair and held her head down. Mr Waaka grabbed the victim’s right arm and repeatedly punched and kicked the victim in the face while the co-offender held the victim’s head down. The co-offender punched the victim in the back of the head multiple times and punched her face with an “uppercut” motion. The victim suffered several lacerations to her face and head, with visible bruising forming around her eyes.
[6] Mr Waaka’s theft charges arose out of a spree of offending where Mr Waaka took items from petrol stations and supermarkets without making any attempt to pay. After almost all of the thefts, Mr Waaka drove away from the site of the offending although he was disqualified from driving at the relevant times. It was this conduct that gave rise to the driving while disqualified charges.
[7]The aggravated injury charge arose during one of the thefts.
[8] In April 2024, Mr Waaka went to a New World supermarket in Hamilton and attempted to walk through the self-checkout without making any attempt to pay for a trolley of items. Store workers grabbed the trolley. Mr Waaka violently pulled the trolley in an unsuccessful attempt to gain control of it. Mr Waaka then took several items from the trolley and began walking towards the exit of the store. An elderly man struck the items Mr Waaka was holding onto the ground. Mr Waaka walked aggressively towards the elderly man before taking various items from the elderly man’s trolley.
[9] A staff member then attempted to restrain Mr Waaka. Mr Waaka punched the staff member once in the face with a closed fist and ran out of the store with the property of the elderly man, which consisted of various grocery products valued at approximately $150. The staff member suffered bruising and swelling to his right eye.
[10]The charge of burglary resulted from events on 18 April 2024.
[11] Mr Waaka drove a car onto the victim’s driveway. He entered the property through an open gate and took the victim’s Merida “Big 9” mountain bike, which was outside the house. That mountain bike was valued at $600.
[12] The charge of possession of goods to facilitate crimes related to number plates located in Mr Waaka’s possession.
[13] The breach of community work charge arose as a result of Mr Waaka’s failure to complete a sentence of community work, and the charge of breaching a sentence of intensive supervision arose out of a failure by Mr Waaka to report.
District Court decision
[14]Judge Dawson began by setting out the facts of the offending.11
[15] The Judge then noted that Mr Waaka is 30 years of age and referred to Mr Waaka’s previous convictions, which included two convictions for violent offending and numerous other convictions for dishonesty, breach, driving and other types of offending. The Judge noted that Mr Waaka has many family violence callouts on his record.12
[16] The Judge then referred to the key purposes and principles of sentencing engaged in Mr Waaka’s case, including the need to hold Mr Waaka accountable for the harm he had caused to the victims of his offending, the need to impose a sentence that would promote a sense of responsibility, and the need to consider the interests of the victims. The Judge also referred to the purposes of denunciation and protection of the community and acknowledged the need to consider Mr Waaka’s rehabilitation.13
11 R v Waaka, above n 1, at [2]–[31].
12 At [32].
13 At [33].
[17] The Judge identified a number of aggravating features of Mr Waaka’s offending. First, the Judge referred to “the violence by punching the head of an elderly man and the punches and kicks to the face of another victim”.14
[18] The Judge also identified as aggravating features the extent of the loss caused by Mr Waaka’s offending, and the injuries to the two victims of the violent offending. Further, the Judge stated that both victims were vulnerable, in that one was an elderly man, and the other was a woman being assaulted by Mr Waaka and an associate at the same time.15 It appears that the reference to Mr Waaka punching an elderly man was mistaken; the summary of facts provided clarifies that while Mr Waaka was confronted by an elderly man during the incident giving rise to the aggravated injury charge, this was not the same person whom he punched on that occasion.
[19] The Judge identified as further aggravating factors premeditation in the theft offending as it was ongoing offending, and the number and relevance of Mr Waaka’s previous convictions.16
[20] Turning to personal mitigating factors, the Judge acknowledged that Mr Waaka had entered guilty pleas, but stated that the pleas came after a deemed not guilty plea and were relatively late. The Judge allowed a 15 per cent reduction for guilty plea. The Judge also acknowledged that Mr Waaka had expressed remorse for the offending but considered that to be “extremely limited” in light of Mr Waaka’s previous similar convictions and the repeated nature of the offending.17
[21] The Judge referred to Mr Waaka’s pre-sentence report which recorded that he was appearing for sentencing on 46 charges; he had been mostly non-compliant with any community-based sentences imposed on him; and he had not completed any rehabilitative interventions that were available to him. The report stated that Mr Waaka had demonstrated a propensity for violence over the years and was named as the aggressor in numerous family violence episodes. The report also stated that while on remand, Mr Waaka had been held to account for eight incidents including
14 At [34].
15 At [34].
16 At [34].
17 At [35].
assaults towards staff members and other prisoners. The Judge noted that Mr Waaka had no home detention address to be considered.18
[22] The Judge acknowledged that Mr Waaka met with one of his victims through the restorative justice process, but that the other victims did not attend.19
[23] The Judge reiterated that Mr Waaka was non-compliant with community-based sentences and that he had not undertaken the rehabilitative opportunities available to him. The Judge observed that Mr Waaka had “[continued] to offend at will with total disregard for the safety of others and for the property rights of others”.20
[24] The Judge took injuring with intent to injure as the lead charge, and in doing so acknowledged that Judge Cocurullo had taken the same approach in providing an earlier sentence indication. Judge Dawson adopted a starting point of 24 months’ imprisonment for that offence.21
[25]The Judge then applied uplifts of:22
(a)15 months’ imprisonment for the aggravated injury and burglary charges;
(b)nine months’ imprisonment for the other dishonesty offending; and
(c)12 months’ imprisonment for the driving while disqualified (third or subsequent) charges.
[26] The Judge declined to apply any uplift for Mr Waaka’s criminal history, taking into account totality considerations.23
18 At [36].
19 At [37].
20 At [38].
21 At [39].
22 At [40].
23 At [40].
[27] The Judge then applied a 15 per cent reduction for guilty plea, and a three per cent reduction for remorse.24
[28] The total sentence arrived at was one of four years and one month’s imprisonment, comprising a sentence of four years and one month’s imprisonment for the injuring with intent to injure charge, and concurrent sentences of:25
(a)one year’s imprisonment for each of the aggravated injury and burglary charges;
(b)three months’ imprisonment for each of the theft charges;
(c)12 months’ imprisonment for each of the driving while disqualified charges;
(d)six months’ imprisonment for the charge of possession of goods capable of facilitating crime; and
(e)two months’ imprisonment on each of the charges of breach of community work and breach of supervision.
[29] Mr Waaka was also disqualified from driving for two years on each driving charge.26
The approach on appeal
[30] An appellant may appeal against sentence as of right under s 244(1) of the Criminal Procedure Act 2011.
24 At [41].
25 At [42]–[45].
26 At [43].
[31] This Court must allow the appeal if satisfied that there is an error in the sentence imposed and a different sentence should be imposed.27 Otherwise, the Court must dismiss the appeal.28
[32] Sentencing is not a science, and an appellate court will generally not intervene unless the end sentence is outside the range that was available to the sentencing judge.29 The Court of Appeal has confirmed that the concept of a “manifestly excessive” sentence continues to apply to appeals against sentence as a means of examining the significance of the error to decide whether a different sentence should be imposed.30 The focus is ordinarily on the sentence imposed, rather than the process by which the sentence is reached.31 When allowing an appeal on the basis that there was an error in the sentence imposed, the appellate court must set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate; vary the sentence or any part of the sentence or any condition of the sentence; or remit the sentence to the court that imposed it.32
[33] The appellate court does not start afresh or simply substitute its own opinion for that of the sentencing judge. Rather, it must be shown that there was an error, whether intrinsically or because of additional material submitted on appeal.33 The court will not intervene where a sentence imposed is within a range that could be properly justified by accepted sentencing principles.34
27 Criminal Procedure Act 2011, s 250(2).
28 Section 250(3).
29 Palmer v R [2016] NZCA 541 at [17], and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
30 Tutakangahau v R, above n 29, at [32]–[35].
31 Tutakangahau v R, above n 29, at [36].
32 Criminal Procedure Act, s 251(2).
33 Tutakangahau v R, above n 29, at [30], citing R v Shipton [2007] 2 NZLR 218 (CA) at [139].
34 See Tutakangahau v R, above n 29, at [36].
Submissions
Appellant’s submissions
[34] Mr Waaka submits that the starting point of 24 months’ imprisonment taken for the charge of injuring with intent to injure was excessive, with reference to the sentence imposed on the co-offender, Ms Tohiariki.35
[35] Mr Waaka’s written submissions set out that Ms Tohiariki was also initially charged with injuring with intent to injure, and that both she and Mr Waaka were active participants in the assault giving rise to this charge in that both attacked the victim’s head, and Ms Tohiariki held the victim’s head down to enable Mr Waaka to punch and kick her. Mr Waaka says that Ms Tohiariki’s charge was eventually reduced to one of assault with intent to injure, though there did not appear to be any change to the summary of facts used.
[36] Mr Waaka contends that the starting point adopted in respect of his lead offending was not consistent with the starting point of 15 months’ imprisonment adopted for Ms Tohiariki’s charge of assault with intent to injure.36
[37] It is submitted that both Mr Waaka and Ms Tohiariki have a history of violence; and Mr Waaka’s previous convictions for violence cannot explain the difference in starting points. Mr Waaka submits that Ms Tohiariki’s sentence was not lenient. Further, Mr Waaka submits that the disparity in the starting points cannot be explained by reference to the fact that Ms Tohiariki faced a less serious charge — he says that assaulting a person with intent to injure them is a necessary component of an injuring with intent to injure charge; Ms Tohiariki was sentenced on the same facts; the Judge sentencing Ms Tohiariki still referred to the injuries suffered by the victim; and Ms Tohiariki’s level of culpability was very similar to that of Mr Waaka in relation to
35 Mr Waaka refers to s 8(1)(e) of the Sentencing Act, which provides that in sentencing an offender, the Court “must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances…”
36 Judge Crayton took a starting point of 15 months’ imprisonment in providing Ms Tohiariki with a sentence indication: New Zealand Police v Tohiariki DC Hamilton CRI-2024-019-2397, 22 July 2024 (sentence indication). That sentence indication was accepted and Ms Tohiariki’s end sentence was imposed as indicated: New Zealand Police v Tohiariki [2024] NZDC 17142.
the relevant incident as both offenders physically assaulted the victim at the same time and helped each other to do so.
[38] Mr Waaka accepts that a slightly higher starting point might be appropriate for his offending because he kicked the victim while Ms Tohiariki only punched her; however, his submission is that the difference between the starting points adopted (15 months for Ms Tohiariki compared with 24 months in Mr Waaka’s case) is greater than can be justified.
[39] Mr Waaka also submits that there was an error of fact in respect of the aggravated injury offending at the supermarket. The Judge mistakenly understood that Mr Waaka punched the elderly man, when an amended summary of facts had clarified that it was a different victim who was punched. The elderly man was involved in the incident but was not subjected to any violence.
[40] Mr Waaka submits that it can be assumed that the 15-month uplift applied for the aggravated injury and burglary charges together was higher than it should have been, as it partly reflected the erroneous conclusion that the victim of the aggravated injury offending was elderly and therefore vulnerable.
[41] Mr Waaka also suggests that the Judge may have pre-determined his sentence with reference to the earlier sentence indication provided by Judge Cocurullo, which Mr Waaka had declined. Mr Waaka points to the similarities between the Judge’s sentencing decision and the earlier sentence indication, and says that the Judge did not refer to submissions advanced at the sentencing hearing, including submissions relating to Mr Waaka’s personal circumstances.
[42] Mr Waaka also submits that in his sentencing notes, the Judge referred to three occasions on which Mr Waaka was said to have been driving while disqualified despite the fact that the charges arising from these incidents had been withdrawn. Mr Waaka submits that it is unclear whether the Judge applied the 12-month uplift for his driving offending on the basis that he faced these three additional driving while disqualified
charges, because the Judge also referred to the correct number of driving charges (19) elsewhere in the decision.37
[43] Mr Waaka also submits that the guilty plea discount was inadequate. He pleaded guilty at the case review hearing and says that the conventional guilty plea reduction for a plea at case review is 20 per cent.
[44] Mr Waaka submits that the reduction of three per cent given for remorse was insufficient. He contends that the fact that only one restorative justice conference took place does not reflect his level of remorse, as the remainder of his victims were unwilling to participate or unable to be contacted. Mr Waaka submits that he was willing and able to participate in restorative justice with any victim who wished to engage with that process. Mr Waaka refers to the Supreme Court’s statement in Hessell v R that a defendant’s genuine remorse may attract a reduction to their sentence separate from that awarded for guilty plea.38 Mr Waaka submits that a discount of up to 10 per cent, but no less than five per cent, would have been appropriate to reflect his remorse.
[45] Mr Waaka also submits that the Judge failed to assess the sentence for totality. Mr Waaka submits that the adjusted starting point of five years’ imprisonment adopted by the District Court Judge was disproportionate to the seriousness of the offending. Mr Waaka says this starting point encompassed a total uplift of three years’ imprisonment which mainly reflected relatively minor (albeit numerous) theft and driving while disqualified charges. Mr Waaka submits that the Judge should have considered whether, overall, a total starting point of five years’ imprisonment and/or the end sentence of four years and one month’s imprisonment were more severe than could be justified and suggests that the starting point and end sentence arrived at were indeed excessive.
[46] Mr Waaka submits that the appropriate end sentence is in the vicinity of three years’ imprisonment.
37 At [1].
38 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
Respondent’s submissions
[47] The Crown accepts that the Judge made an error of fact in sentencing Mr Waaka on the basis that the victim of the aggravated injury offending was an elderly man. However, the Crown submits that this error did not have a material impact on the sentence imposed, and that the uplifts applied were within range.
[48] The Crown also submits that it was appropriate for the Judge to refer to the previous sentence indication given that he adopted the starting point taken in that sentence indication.
[49] In response to Mr Waaka’s contention that the starting point taken for the injuring with intent to injure charge failed to give effect to parity principles, the Crown submits that parity is not an issue in circumstances where the co-offender pleaded guilty to a less serious charge.
[50] The Crown submits that the starting point taken by Judge Dawson was within the available range. The Crown submits that Mr Waaka’s lead offending falls within band three of Nuku v R, which provides a starting point range of two years up to the statutory maximum.39 The Crown submits that the Judge adopted a starting point at the bottom of the available range, and that starting point cannot be considered excessive.
[51] The Crown submits that the uplift of 15 months’ imprisonment for both the burglary and aggravated injury charges was applied on a totality basis, and was within range. The Crown refers to the following passage from Arahanga v R in support of its submission that the burglary could have attracted a starting point of up to 12 months’ imprisonment if considered on a standalone basis:40
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. Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. 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.
39 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38].
40 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78] (footnotes omitted).
[52] The Crown submits that the aggravated injury charge would on its own attract a 12-month starting point with reference to the Nuku sentencing bands and the aggravating factors listed in R v Taueki,41 noting that the only aggravating factor present on the facts of Mr Waaka’s offending was an attack to the head.
[53] The Crown submits that the basis for Mr Waaka’s suggestion that the Judge may have mistakenly perceived that he faced 22 charges of driving while disqualified is unclear. The Crown submits that, on a standalone basis, Mr Waaka’s driving offending could have attracted a starting point equal to the maximum term of imprisonment available for that charge — two years — given Mr Waaka’s repeated disregard for his disqualification. Accordingly, the Crown submits that the 12-month uplift for the 19 driving charges Mr Waaka faced, applied on a totality basis, was not excessive.
[54] The Crown submits that the uplift of nine months’ imprisonment for Mr Waaka’s dishonesty offending was “stern, but within range”. The Crown states that Mr Waaka stole items with a total value of more than $5,000 over 21 instances of theft; several of the stores were visited more than once; and the dishonesty offending was aggravated by Mr Waaka’s possession of five registration plates which were affixed to different vehicles from those to which they were registered, indicating premeditation and efforts to avoid detection.
Discussion
[55] Mr Waaka was for sentence on a series of disparate charges. These included four sets of charges that alone would all carry a relatively significant sentence of imprisonment.
[56] The spree of shoplifting involved low-level charges taken individually, but overall involved repeated and brazen theft of over $5,000 worth of property. The aggravated injury offending is concerning because, when challenged during a shoplifting incident, Mr Waaka was prepared to use violence. The injuring with intent to injure was unrelated to the other offending and involved violence to a female victim.
41 R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372.
The burglary charge reveals that Mr Waaka’s dishonesty offending is not confined to commercial premises. He is willing to enter private property which always carries a risk of confrontation with a homeowner.
[57] In addition to these charges, there were 19 charges of driving while disqualified (third or subsequent), a charge of possessing goods capable of being used to facilitate crimes involving dishonesty with intent, a charge of breach of conditions of intensive supervision, and a charge of breach of a sentence of community work.
[58] It is convenient to consider what sentence would result for each of Mr Waaka’s more serious or repetitive sets of offending if dealt with on a standalone basis. Mr Waaka complains that totality was not adequately considered, and that submission must be assessed against the starting points that would result if each of these matters were considered separately.
Injuring with intent to injure
[59] Mr Waaka pleaded guilty to a more serious charge than the co-offender, who pleaded guilty to a charge of assault with intent to injure.
[60] The Court of Appeal’s decision in Nuku provides guidance as to how the Taueki guideline judgment may be applied to sentencing for injuring with intent to injure offending. The sentencing Judge identified the aggravating features of Mr Waaka’s injuring with intent to injure offending as the attack to the head, the vulnerability of the victim, the imbalance of power with a number of offenders, and the injury to and effect on the victim. A starting point of two years’ imprisonment was taken.
[61] The Court of Appeal in Nuku identified three bands which reflect the seriousness of the offending based on factors including the number of aggravating features present. The bands are as follows:42
(a)Band one: where there are few aggravating features, the level of violence is relatively low and the sentencing judge considers the offender’s culpability to be at a level that might have been better
42 At [38].
reflected in a less serious charge, a sentence of less than imprisonment can be appropriate.
(b)Band two: a starting point of up to three years’ imprisonment will be appropriate where three or fewer of the aggravating factors listed at
[31] of Taueki are present.
(c)Band three: a starting point of two years up to the statutory maximum (either five of seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band three, even if there are few other aggravating features.
[62] The Crown says that the violence employed in this matter cannot be said to be anything but prolonged and extreme, meaning that the offending falls at the bottom of band three and requires a minimum starting point of two years’ imprisonment. The victim was kicked and punched in the head while she was lying on the ground. She was restrained by the co-accused. The victim suffered lacerations to her face, as well as significant bruising.
[63] Mr Waaka complains that the starting point taken was excessive for reasons of parity. The starting point taken for the co-offender was 15 months’ imprisonment, as set out in her sentence indication.
[64] A review of the sentence indication relating to the co-offender suggests that she was sentenced on a very different factual basis. There is no reference to Mr Waaka’s presence in the summary of the offending within the co-offender’s sentence indication. She appears to have been sentenced on the basis that she was the sole attacker. Further, the co-offender pleaded guilty to a charge of assault with intent to injure,43 which carries a maximum penalty that is two years lower than the maximum available for the charge of injuring with intent to injure that Mr Waaka faced.
[65] When offenders are sentenced in respect of a different summary of facts and for different charges, parity considerations do not assume the same importance. Nevertheless, I accept that there are natural justice considerations, and that unfairness
43 Crimes Act, s 193; maximum penalty three years’ imprisonment.
can result if an offender is sentenced differently for essentially the same behaviour, regardless of the fact that the charges are different.
[66] The fact that one offender receives a lenient sentence does not mean, however, that a similar leniency must be extended to a co-offender. To put it another way, if a co-offender’s sentence is incorrect, the Court is not required to compound that error by imposing another incorrect sentence.44 That is not to say that in this case the co-offender’s sentence was incorrect. The simple fact is she appears to have been sentenced on quite a different basis.
[67] An assessment of the starting point taken for Mr Waaka’s charge of injuring with intent to injure requires consideration of the aggravating factors in light of the bands identified in Nuku. An assessment as to whether the violence involved was “prolonged” or of a “high level” depends upon an examination of comparator cases. The violence was not at the highest level and was not prolonged compared to some cases, but it was more prolonged than cases where injury results from one or two punches.
[68] Regardless of whether the violence in this case can be characterised as “prolonged” or of a “high level”, there are sufficient aggravating factors, and the combination of those factors is sufficiently serious, to place the offending in band 3 of Nuku. I consider that those factors are an attack to the head, multiple attackers and vulnerability of the victim. I consider that an attack by a male on a female will often incorporate aspects of vulnerability because of disparity in size, strength and social conditioning. While any assumption of vulnerability may certainly be rebutted, the average man has a physical advantage over the average woman, and it is artificial not to acknowledge that. Social conditioning also means that a female victim may be more likely to perceive a male attacker as having a physical advantage over her whether he does or not. That makes her less likely to attempt to defend herself from attack. These are vulnerabilities that a male attacker can take advantage of when deciding to use violence against a female.
44 Kaiwai v New Zealand Police [2024] NZHC 2491 at [35]. See also Kulu v R [2022] NZCA 284 at [33].
[69] Even if I am wrong about victim vulnerability, the combination of aggravating factors would place the injuring with intent to injure offending near the top of band 2 of Nuku, with an appropriate starting point of two to three years’ imprisonment.
[70] Parity considerations would not require a reduction from a two-year starting point in this case. Mr Waaka’s charge carries a maximum penalty two years higher than the charge faced by the co-offender and involves an acknowledgement of causing injury; there was additional violence in the form of kicking; and Mr Waaka was a male attacking a female. Those factors distinguish Mr Waaka’s offending from that of the co-offender.
[71] On a standalone basis, a sentence of two years’ imprisonment for this offending is within range.
Aggravated injury
[72] The aggravated injury charge arose from Mr Waaka’s violent reaction when challenged during a shoplifting incident.
[73] There seem to be very few cases where an offender has been sentenced on a charge of aggravated injury or aggravated assault arising out of similar offending to that which gave rise to the aggravated injury charge in Mr Waaka’s case — even cases where these charges have been dealt with by way of uplift rather than as the lead charge tend to involve very different facts. However, there is still scope for comparison with previous cases.
[74] In Rota v New Zealand Police, Mr Rota faced numerous charges, including a charge of aggravated assault.45 Mr Rota and his co-offenders were in a vehicle and waved down the victim, who was passing by on a trail bike. Mr Rota’s co-offender took hold of the victim’s handlebars, challenged the victim to a fight for ownership of the trail bike, and attempted to remove the victim’s helmet. When the victim turned his bike in an attempt to flee, Mr Rota exited the vehicle, demanded a ride and swung a punch which connected with the side of the victim’s helmet, knocking him sideways
45 Rota v New Zealand Police HC Gisborne CRI-2009-416-20, 14 September 2009.
off his bike. The victim was able to retain control of the bike and ride away, though he was initially chased by the five offenders in their vehicle.
[75] On appeal, Keane J acknowledged that the aggravated assault was “potentially serious” and endorsed the District Court Judge’s description of the offending as amounting to “significant banditry”.46 Keane J also noted that this offending resulted in a pursuit.47 However, Keane J acknowledged that Mr Rota’s role in the offending was “confined to one single impulsive act”.48 He also had regard to the fact that Mr Rota’s punch “must have had some force” as it knocked the victim off his bike but stated that: “that was the matter of a moment. The complainant did retain control and did not suffer any injury”.49 Keane J concluded that “no greater starting point than nine months could be justified” for the aggravated assault,50 and treated nine months as the appropriate starting point for this offence in determining the end sentence.
[76] The underlying incident in Rota was more serious than in the present case because in Rota the offender was apparently attempting to steal a trail bike. However, the assault itself was more serious in the present case because there was an injury. The charge in the present case was aggravated injury rather than aggravated assault and there was a second peripheral victim with whom Mr Waaka interacted aggressively albeit not violently.
[77] I regard Mr Waaka’s willingness to resort to violence to facilitate his shoplifting as concerning and justifying a starting point of 12 months’ imprisonment on a standalone basis. There is a strong need to denounce and deter such violence.
Burglary
[78] The burglary was distinct offending, and I am unsure why it was assessed together with the aggravated injury charge. It was a low-level burglary which did not involve entry to a dwelling-house or damage to property. It did involve entry onto residential property, and it involved theft of a mountain bike worth $600.
46 At [27].
47 At [27].
48 At [28].
49 At [29].
50 At [30].
[79] In Grey v New Zealand Police, the offender went to a residential address, used a drill to open the lock on a shed at the back of the property, and took four jerry cans and two small tins from the shed before leaving the scene.51
[80] The Judge in that case adopted a starting point of 12 months’ imprisonment for the burglary offending. In doing so, the Judge appeared to have regard to counsel’s submissions that the offending took place in the early afternoon and on a weekday when it was unlikely that anyone would be present; the fact that there was some premeditation (as evidenced by the fact that the appellant had and used a drill to access the shed); and the fact that the appellant stole items of a relatively low value and caused minimal damage to property. The Judge also noted that although the appellant entered residential premises, he did not enter the house itself.
[81] Mr Waaka’s burglary offending occurred during the day and on a weekday — 2 pm on a Thursday. There is no suggestion that Mr Waaka’s offending caused any damage to property, as he entered the residential premises through an open gate.
[82] Patangata v Police also involved a lead charge of burglary.52 Mr Patangata was driving with an associate and stopped his vehicle outside the victim’s address due to engine issues. Mr Patangata exited the vehicle and forced entry into the victim’s garden shed, stealing a petrol can and weed eater. He placed the weed eater into the boot of the vehicle and poured the fuel into his vehicle.
[83] On appeal, the Court held that a starting point of 17 months’ imprisonment, comprising 12 months for the burglary offending and five months for various other offences, was within range — in other words, a starting point of 12 months’ imprisonment was deemed appropriate for the burglary offending.
[84] In R v Columbus the lead charge of burglary arose out of offending involving Mr Columbus forcing open the vehicle access door of a garage at a residential property.53 In doing so, he caused damage that cost $672 to repair. Mr Columbus
51 Grey v New Zealand Police [2023] NZHC 2065.
52 Patangata v Police [2020] NZHC 407.
53 R v Columbus [2008] NZCA 192.
stole a mountain bike, gardening tools and a toolbox. He pawned the bike, but it was subsequently recovered by police.
[85] On appeal, the Court agreed with the District Court Judge that Mr Columbus’ burglary offending was “at the minor end of the scale”.54 The Court said:55
[The burglary offending] was apparently opportunistic or spontaneous because Mr Columbus wanted quick money. The mountain bike was later recovered. The owner suffered a natural sense of emotional violation and distress and limited financial loss. While we do not in any way diminish the effect on the victim, the circumstances of the burglary would not themselves justify a starting point of more than one [year’s] imprisonment.
[86] The Court then went on to treat 12 months’ imprisonment as the starting point for Mr Columbus’ burglary offending in determining the appropriate adjusted starting point.
[87] The burglary offending committed by Mr Patangata and Mr Columbus seems relatively similar to that committed by Mr Waaka. In all three cases, property of a relatively low value was taken following entry onto residential premises. In both Patangata and Mr Waaka’s case, the entry onto residential premises did not involve entry into a dwelling-house. Mr Waaka’s offending was less serious than the offending in Patangata and Columbus in that there was no entry into any shed or garage and no damage caused. A starting point of nine months’ imprisonment would be appropriate for Mr Waaka’s burglary offending, if it was to be dealt with on a standalone basis.
Theft
[88] Mr Waaka was a prolific and brazen shoplifter, and the sum of the offending is more serious than the individual charges — many of which carry a maximum of three months’ imprisonment — may suggest.
[89] In Smith v New Zealand Police, theft offending which gave rise to 29 charges was summarised by the Court as follows:56
54 At [16].
55 At [16].
56 Smith v New Zealand Police [2025] NZHC 244 at [4].
All theft charges arise from shoplifting committed between May and September 2024. Mr Smith was initially charged with several thefts, remanded in custody, and then bailed on 8 July 2024. He then continued to shoplift. The items initially stolen can be largely categorised as food items (such as trays of pies and meat, hot food, [confectionery] and lasagne), energy drinks, and health and beauty items. There are two instances each of alcohol and petrol theft. At the outset of the offending, the items stolen were generally under
$100. As time went on, the thefts became larger in value as Mr Smith began to steal from stores such as Jaycar, Briscoes and Farmers. Over the period of the offending, the lowest value item stolen was an energy drink for $2.49, and the highest value item was a knife block valued at $329.99.
[90]The total value of the goods stolen in that case was over $3,100.
[91] The District Court Judge initially imposed a starting point of 29 months’ imprisonment in respect of the 29 theft charges (essentially, a cumulative one-month starting point for each charge). The Court on appeal reduced the starting point to 22 months’ imprisonment to take into account totality considerations. However, the Court said:57
The critical factors in assessing the appropriate adjusted starting point are the number of charges and the length of time over which Mr Smith offended. Because the value of the property stolen relevant to each charge is less than
$500, I consider the total value of the property stolen must carry less weight in setting an appropriate starting point. But regardless of value, this was an example of persistent and premeditated offending, and it was deserving of a stern sentence that might deter a recidivist shoplifter.
[92] Mr Waaka’s offending was similarly persistent and the value of the property somewhat higher. The theft offending attracts a starting point slightly higher than 22 months’ imprisonment on a standalone basis.
[93] In Cooper v New Zealand Police theft was not the lead charge; however, the decision provides insight into how “spree” offending covering different property values has been dealt with by way of uplift.58 Mr Cooper faced 11 charges of theft (under $500) and two charges of theft (over $1,000). The decision does not specify the total value of the property taken.
[94]The relevant offending was summarised as follows:
57 At [22].
58 Cooper v New Zealand Police [2025] NZHC 2333.
[9] The 11 theft (under $500) charges relate to offending that occurred between March 2024 and October 2024. Ms Cooper would typically walk into retail stores and select items such as snack foods, dog treats/food, make-up, groceries and on one occasion a power-tool, before leaving the store without paying. The items ranged in value from $24.98–$59.90, although the power tool was valued at $299. Three of the charges relate to theft of petrol from a service station, the lowest amount stolen being $40, and the highest amount
$106.05.
[10] Finally, one of the theft (under $500) charges relates to an incident in September 2024, when Ms Cooper removed the front and rear registration plates from a victim’s vehicle and attached them to her own vehicle. They were recovered during a bail curfew check.
[11] On 10 August, Ms Cooper entered Rebel Sport Dunedin and selected approximately eight baseball caps, concealing them in her backpack. She selected various other items before leaving the store. Items to the value of
$939.86 were recovered and items to the value of $369.95 were not recovered. Those events gave rise to one of the charges of theft (over $1000).
[12] Five days later, Ms Cooper entered a pharmacy with two associates. She selected various items and left the store without paying. Items valued at
$1,011.93 were not recovered giving rise to the second charge of theft (over
$1000).
[95] The District Court Judge dealt with all of the theft charges together as they formed a “spree”, and imposed an uplift of 13 months’ imprisonment to reflect these offences.59 That aspect of the sentence was not disturbed on appeal.
Driving while disqualified (3rd or subsequent)
[96] Mr Waaka was for sentence on 19 charges of driving while disqualified (third or subsequent). There were originally 22 charges and three were withdrawn. I regard the difference between 22 charges and 19 charges as immaterial.
[97] In Norris v New Zealand Police the offender faced four charges of driving while disqualified (third or subsequent).60 The facts as outlined in the decision covered four incidents where Mr Norris was seen driving during the period of disqualification. On two of those occasions, he failed to stop in response to police activating their lights and engaged in some form of dangerous driving (which gave rise to separate charges). The offender in this case had six previous convictions for driving while disqualified.
59 New Zealand Police v Cooper [2025] NZDC 13559.
60 Norris v New Zealand Police [2024] NZHC 1992.
[98] On appeal, the Court considered that the starting point of three years’ imprisonment imposed by the District Court Judge for the driving while disqualified offences was excessive. The Court stated that “the starting point for a third or subsequent driving while disqualified charge will be in the vicinity of 10 months’ imprisonment for those with previous disqualified convictions numbering more than five to seven”.61 Ultimately, the Court concluded that the four driving while disqualified offences in this case, and Mr Norris’ “considerable criminal history” (which included 70 convictions, of which six were for driving while disqualified), warranted a 10-month starting point “to reflect the serial recidivist offending”.62
[99] The Court then applied a further uplift of nine months to reflect the fact that there were four offences committed in this case, arriving at a total starting point of 19 months’ imprisonment for the driving while disqualified charges.
[100] In comparison, Mr Waaka has three previous convictions for relevant driving offending; however, the sentence which he appeals covers many more driving while disqualified charges than in Norris (19 charges, as compared with four charges). Mr Waaka’s driving offending would attract a starting point of more than 19 months’ imprisonment if dealt with on a standalone basis.
[101] In Whitley v New Zealand Police, Mr Whitley was sentenced on three charges of driving while disqualified.63 He had at least seven prior convictions for driving while either disqualified or suspended.
[102] On appeal, Wylie J considered that the District Court Judge was entitled to deal with the three instances of offending on a cumulative basis because, while the latter two offences were the same in kind, the offending was not part of a connected series of events and there was no factual connection between the offences; and further, the explanations offered by Mr Whitley on each occasion were different.
[103] Wylie J held that a 10-month starting point was appropriate for the first of the three offences, stating that this starting point was appropriate for “an eighth
61 At [31].
62 At [32].
63 Whitley v New Zealand Police [2016] NZHC 1025.
conviction” for driving while disqualified.64 The Judge considered that the two remaining offences should each attract an uplift of four months’ imprisonment, leading to a total adjusted starting point of 18 months’ imprisonment. The Judge took into account that the latter two offences occurred while Mr Whitley was on bail, Mr Whitley was aware of his disqualification, and “[h]is answers to the police when questioned [suggested] that he was simply flouting the disqualification which had been imposed on him”.65 The Judge also said that these uplifts recognised that the latter two offences were Mr Whitley’s “10th and 11th offences of this kind”.66
[104] There were some aggravating features present in Mr Whitley’s offending that are not present on the facts of Mr Waaka’s offending — or at least not present to the same extent. There is no suggestion that Mr Waaka’s driving offending occurred while he was on bail. Further, he does not have as many previous relevant convictions as Mr Whitley. However, these factors are outweighed to an extent by the large number of driving convictions Mr Waaka has amassed, which significantly exceeds the number faced by Mr Whitley (19 convictions compared with three convictions). On a standalone basis, this case suggests a starting point higher than 18 months’ imprisonment is appropriate for Mr Waaka’s driving offending.
[105] In Williams v New Zealand Police, the offending comprised four instances of driving while disqualified (third or subsequent).67
[106] The District Court Judge had adopted a starting point of 40 months’ imprisonment, comprising cumulative starting points of 10 months for each discrete offence. The Judge then reduced the starting point to 30 months’ imprisonment to account for totality considerations. The Judge applied a 12-month uplift for Mr Williams’ previous convictions, which included 11 previous convictions for driving while disqualified, bringing the sentence to 42 months’ imprisonment before discounts were allowed for personal mitigating factors. Finally, the Judge allowed a 10-month reduction for guilty plea, arriving at an end sentence of 32 months’ imprisonment.
64 At [30].
65 At [31].
66 At [31].
67 Williams v New Zealand Police [2015] NZHC 1118.
[107] On appeal, Dunningham J noted that the courts have taken divergent approaches to sentencing for driving while disqualified (third or subsequent) charges, with some judges accounting for offenders’ previous driving while disqualified convictions in setting the starting point, and others dealing with these prior convictions by way of subsequent uplift.68 Dunningham J conducted her analysis with a focus “on the starting point which would apply to a twelfth or subsequent offence before taking any discounts into account”.69 That analysis is reproduced below:
[24] If the approach supported by the appellant is adopted, then I accept the respondent’s submission that the starting point for a single offence of driving while disqualified, third or subsequent which represents a defendant’s twelfth – fifteenth such offence, would be in the range of 16 – 20 months’ imprisonment. Cumulatively for four such offences, an overall starting point of 64-80 [months’] imprisonment could be adopted. Although this would clearly offend the totality principle, it suggests the effective starting point of 42 months’ imprisonment reached in this case is not out of range on a cumulative approach.
[25] On a different view, an initial starting point of 10 months was set for each offence. The overall reduction of 10 months for totality represents a discount of two and a half months per offence. The uplift of 12 months for previous offending represents an increase of three months per offence. Therefore, for each individual offence, the effective starting point was ten and a half [months’] imprisonment. On this analysis, the sentencing is again well within range.
[108] Again, while Mr Waaka has fewer relevant previous convictions than Mr Williams (three, as opposed to 11), Mr Waaka faces fifteen more charges. Williams would suggest that a starting point close to 40 months’ imprisonment, taking into account Mr Waaka’s previous convictions for driving while disqualified, could be justified for his driving offending if dealt with on a standalone basis. However, I consider that the fact Mr Waaka has only three previous convictions for driving while disqualified reduces his culpability. He has not been repeatedly sanctioned by the courts and continued to offend to the same degree.
Structure of sentence
[109] The available standalone starting points for Mr Waaka’s more serious and/or repetitive offending that I would apply are as follows:
68 At [21].
69 At [23].
(a)Injuring with intent to injure: 24 months.
(b)Aggravated injury: 12 months.
(c)Burglary: nine months.
(d)Theft: 24 months.
(e)Driving while disqualified (third or subsequent): 20 months.
[110] Simply adding these sentences together produces a starting point of 89 months, or seven years and five months, which would then be increased further to account for the remaining charges. That would offend the totality principle, but it is against that level of standalone sentences that the totality adjustment represented by the end sentence must be assessed.
[111] Taking the injuring with intent to injure charge as the lead charge, I would structure the sentence as follows:
(a)Injuring with intent to injure: 24 months.
(b)Aggravated injury: uplift of nine months.
(c)Burglary: uplift of four months.
(d)Theft: uplift of 12 months.
(e)Driving while disqualified: uplift of 10 months.
(f)Six months’ imprisonment for the charge of possession of goods capable of facilitating crime concurrent with the theft charges.
(g)Two months’ imprisonment for each of the charges of breach of community work and breach of intensive supervision, concurrent on each other.
[112]The starting point reached is 61 months, or just over five years’ imprisonment.
[113] The discount of 15 per cent applied for guilty plea was available. I do not agree that there is any binding convention that a 20 per cent credit is available for a guilty plea entered at the case review stage. Mr Waaka was facing a strong prosecution case, and the Judge was entitled to factor that into the level of credit.
[114] Mr Waaka’s remorse, demonstrated by his attendance at the one restorative justice conference and willingness to attend others, does justify some credit, and five per cent would be more usual than the three per cent applied. But the genuineness of the remorse was clearly open to question given that Mr Waaka continued to offend over a prolonged period, including continuing the shoplifting after becoming involved in the altercation with the New World staff member. There was no offer of reparation.
[115] I regard an overall credit of 18 per cent for guilty plea and remorse as within the available range. I would not second-guess this exercise of discretion by the sentencing Judge.
[116] On that basis I would reach an end sentence of four years and two months’ imprisonment, which is similar to that reached by the sentencing Judge, who did not adjust for personal aggravating factors. Mr Waaka has a lengthy criminal history, and an uplift is clearly available. That was not applied as the Judge recognised that a further uplift would offend against the totality principle. I agree.
[117] Having examined the discrete sets of offending in some detail, I reach the view that the sentence imposed was not manifestly excessive. It is a lengthy sentence but that is a result of Mr Waaka engaging in repetitive lower-level offending coupled with two incidents of violence and a burglary. He has benefited from the totality principle as can be seen from the starting points that would have applied had the offending not occurred in the combination that it did.
Result
[118]The appeal is dismissed.
Wilkinson-Smith J
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