Wanahi v Police
[2025] NZHC 2997
•10 October 2025
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2025-443-37
[2025] NZHC 2997
C J WANAHI v
THE NEW ZEALAND POLICE
Hearing: 9 October 2025 Appearances:
C A Silk for Appellant
P M Lange for Respondent
Judgment:
10 October 2025
JUDGMENT OF GWYN J
Introduction
[1] On 28 July 2025, CJ Wanahi was sentenced to two years and six months’ imprisonment1 on charges of assault on a person in a family relationship,2 breach of protection order,3 burglary,4 theft,5 wilful damage,6 and escaping custody.7 Mr Wanahi appeals that decision on the basis that it was manifestly excessive. Mr Wanahi’s counsel, Caroline Silk, argues that the Judge adopted an excessive starting point and
1 New Zealand Police v Wanahi [2025] NZDC 18051 [Decision under appeal].
2 Crimes Act 1961, s 194A; maximum penalty of two years’ imprisonment.
3 Family Violence Act 2018, ss 9, 90(a) and 112(1)(a); maximum penalty of three years’ imprisonment.
4 Crimes Act, s 231(1)(a); maximum penalty of 10 years’ imprisonment.
5 Sections 219 and 223(d) ($500 or less); maximum penalty of three months’ imprisonment.
6 Summary Offences Act 1981, s 11(1)(a); maximum penalty of three months’ imprisonment or a
$2,000 fine.
7 Crimes Act, s 120; maximum penalty of five years’ imprisonment.
WANAHI v POLICE [2025] NZHC 2997 [10 October 2025]
gave insufficient allowance for the totality of Mr Wanahi’s offending, his guilty plea, remorse, efforts to rehabilitate and background. Ms Silk suggests that the end sentence should be 19.5 months, or at least less than two years’ imprisonment.
[2] Mr Wanahi has been in custody for one year. As a result, the appeal will result in his immediate release if successful in bringing the sentence to two years’ imprisonment or less. Home detention is accordingly not sought.
Background
Offending
[3] The bulk of Mr Wanahi’s offending took place on Sunday, 4 August 2024. At roughly 8.40 am that morning, he climbed the locked front gate of the yard for Kiwi Lumber Ltd and took items worth about $100: cans of spray paint, two work shirts and a pair of work gloves. He used one of the cans of spray paint to graffiti a shipping container in the yard.
[4] The family violence charges also arose that day. Mr Wanahi and the victim of the offending had been in a romantic relationship for approximately four years before separating. They have one young child together. There is a protection order against Mr Wanahi in the victim’s favour that was issued on 10 August 2022. On 4 August 2024, Mr Wanahi was at the victim’s home address and refused to leave, in breach of the protection order. He had not been invited to the address by the victim. Mr Wanahi then jabbed the victim in the right eye with his finger. He later left the address.
[5] The charge of escaping police custody arose on 2 September 2024, when police officers attempted to arrest Mr Wanahi in connection with family harm incidents but Mr Wanahi ran away, jumping multiple fences to do so.
[6] The four charges of theft are very minor. They arose earlier, in June and July 2024. In four separate incidents, Mr Wanahi stole items of low value from New World Dannevirke: a carton of eggs, valued at $5.39; socks and chocolate, valued at $23.37;
a grooming kit and packets of Raro, valued at $23.97; and a pair of socks valued at
$10.59 along with a New World basket, valued at $75.
Procedural background
[7] Mr Wanahi was remanded in custody on 9 September 2024 on the above charges, as well as three additional family violence charges. On 29 October of that year, he entered a plea of not guilty to all charges.
[8] At a case review hearing on 14 January 2025, Judge Hikaka gave Mr Wanahi an informal sentencing indication based on the charges he faced at the time, which included the three additional family violence charges.8 Judge Hikaka indicated a global starting point of 43 months’ imprisonment:
[4] Basically, 12 months start for the burglary, 12 months for the first lot of family violence, 16 months for the second lot, and three months for all the thefts. You get to around 43 months.
[9] Judge Hikaka indicated that a full guilty plea discount of 25 per cent would result in an end sentence of 32 months’ imprisonment. The Judge said that the indication was informal, saying:
… 32 months. That is a loose indication just so we are not wasting time, although you are not really after an indication at the moment.
[10] There was agreement to extend that case review hearing by some weeks to enable negotiations to take place. At the new case review hearing on 28 January 2025, the Police withdrew three family violence charges (which Judge Hikaka had referred to as the “second lot” of family violence). Mr Wanahi entered guilty pleas at the same hearing.
Criminal history and PAC report
[11] Mr Wanahi has a fairly extensive history of dishonesty and fairly serious family violence offending, that dates to as recently as 2021 and 2023. The family violence offending since 2021 relates to the current victim. There have been over 60 previous
8 New Zealand Police v Wanahi DC Hāwera CRI-2024-021-479, 14 January 2025.
family harm incidents recorded involving Mr Wanahi and the victim, many of which have him recorded as the predominant aggressor.
[12] The Provision of Advice to Courts report from Corrections expresses concern about the high frequency of incidents between Mr Wanahi and the victim. The report writer observes that the risk of Mr Wanahi reoffending against the same victim has increased as a result, although this may be offset by the protection order that is in force. The report writer also records Mr Wanahi’s explanation for the family violence offending; that he poked the victim in the eye by accident when putting his hands up in defence.
Decision under appeal
[13]The sentencing Judge calculated the starting point as follows:9
(a)he took the family violence charges as the lead charges and set a starting point of nine months;
(b)he added three months for the charge of escaping custody;
(c)he added eighteen months for the burglary and wilful damage charges;
(d)he added one month for the four theft charges; and
(e)he added an uplift of six months to reflect Mr Wanahi’s history of family violence offending against the same victim.
[14] The Judge allowed a 15 per cent discount to reflect Mr Wanahi’s guilty plea. He refused a higher discount on the basis that the plea was not entered at the earliest stage.10 However, when applying the discount he then rounded down to reach an end sentence of 30 months; equivalent to a 20 per cent guilty plea discount.
9 Decision under appeal, above n 1, at [27].
10 At [29].
[15] The sentencing Judge appeared to acknowledge that he was diverging from Judge Hikaka’s January sentence indication:11
You had a sentence indication from another judge which you declined and since then, a number of charges have been withdrawn. That definitely would have made a difference to what Judge Hikaka suggested.
Approach on appeal
[16] In Tutakangahau v R the Court of Appeal confirmed that a successful sentence appeal under s 250(2) of the Criminal Procedure Act 2011 requires both the identification of an error and the need for the appeal court to be satisfied that a different sentence “should” be imposed.12 The Court does not start afresh or simply substitute its own opinion for that of the original sentencer.13 Rather, the appellant must show there is a material error before the court goes on to form its own view of the appropriate sentence.14 The court will not generally intervene unless a sentence is manifestly excessive15 and whether the sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached.16
[17] The appeal court cannot “tinker” or intervene with the end sentence if it is within range.17 In borderline cases, “the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight”.18
Starting point
[18] Ms Silk argues that the starting point reached was too high because it did not align with the prior sentencing indication given by Judge Hikaka on 14 January 2025, or the victim’s views. She argues the Judge accordingly failed to consider the principles and purposes of sentencing set out in the Sentencing Act 2002. She further submits that the starting point did not allow for totality. On Ms Silk’s argument, the
11 At [26].
12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
13 At [30].
14 At [30].
15 At [35].
16 At [30]–[36].
17 R v Boyd (2004) 21 CRNZ 169 (CA) at [38].
18 R v D (CA 253/2008) [2008] NZCA 267 at [66].
starting point should have been 27 months, in line with what she submits Judge Hikaka would have imposed in the absence of the three family violence charges that were dropped.
Ms Lange for the Police submits that there was no error in the sentencing Judge declining to follow the previous sentence indication because it was given by a different judge, was not accepted, and new information had come to light since it was given because three charges were dropped. Further, she says it was an “informal” indication only that was accordingly not binding. She further submits that the victim’s views cannot be a determinative feature in sentencing, and it was appropriate for the Judge to disregard the victim’s request in this case when it may have been the result of illegitimate pressure. Relevance of sentencing indication
[19] The sentence indication was not binding on the sentencing Judge because Mr Wanahi did not plead guilty to the offences in respect of which the indication was given within the period that it had effect, and because the indication was given by a different judge.19
[20] Regardless, natural justice considerations arise. The sentencing Judge imposed a significantly higher starting point than Mr Wanahi and his counsel would have thought likely, given the sentence indication. Where a sentencing judge is minded to impose a sentence greater than indicated, they must give a defendant the opportunity to withdraw their guilty plea under s 115 of the Criminal Procedure Act. The same is true under s 115 where a sentencing judge becomes aware of fresh information that would increase the sentence. In these circumstances, natural justice required the sentencing Judge to give Mr Wanahi the same opportunity even if the situation was not explicitly captured by s 115. The fact Judge Hikaka’s indication was informal is immaterial. The indication was given in court and Mr Wanahi would have been entitled to accept it, as the sentencing Judge implicitly accepted.20
[21] However, Ms Silk does not suggest that Mr Wanahi wishes to vacate his plea. In those circumstances, it is appropriate to treat the matter as a sentence, rather than conviction, appeal and ask as usual whether the sentence was manifestly excessive.21 The fact the starting point or end sentence was inconsistent with the indication does
19 Criminal Procedure Act 2011, s 116.
20 Decision under appeal, above n 1, at [26].
21 See Williams v R [2021] NZCA 54, (2021) 29 CRNZ 783 at [17].
not answer that question. For completeness, I note that s 8(e) of the Sentencing Act does not change matters.22
Relevance of victim’s views
[22] Ms Silk argues that the Judge failed to take into account the views of the victim, who was in Court supporting Mr Wanahi. Ms Silk argues that the victim told the Court that she wanted the defendant out of prison so he can develop a relationship with their young child. Ms Silk argues this was a failure to comply with s 8(f) of the Sentencing Act, which provides that the sentencing judge must take into account any information that was provided:
(i) to help to recognise the victim’s needs in the court’s sentencing or otherwise dealing with the offender according to law; and
(ii) concerning the interests of the victim (for example, about the effects of the offending on the victim);
[23] I agree with Ms Lange that s 8(f) does not mandate that a sentencing judge must align with the victim’s views on what the end sentence should be. Nor could it. However, the judge should consider the effect of the offending on the victim as they report it to be, and their views. While a victim’s views can — in the family violence context especially — be the result of illegitimate pressure, that should not be assumed.23
[24] Here, the sentencing Judge appeared to disregard the victim’s views on the basis that she was trying to “take a lot of the blame herself”, and he did not accept that she should be blamed.24 I am not sure that is an accurate assessment, given that the victim’s views appear to be motivated by her desire for Mr Wanahi to have a relationship with his child, rather than by a desire to take the blame. However, the Judge was clearly not required to reach an end sentence in alignment with her views and so there was no error under this head.
22 Section 8(e) of the Sentencing Act 2002 does not mandate that sentencing decisions must follow earlier sentencing indications; it provides that a sentencing judge 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”.
23 R v AM [2010] 2 NZLR 750 (CA) at [64].
24 Decision under appeal, above n 1, at [21].
Totality
[25] I accept that the starting point was too high. As Ms Silk has said, the Judge did not account for the totality of Mr Wanahi’s offending. Neither Judge Hikaka in giving the sentence indication, nor Judge Greig in imposing the sentence, referred to the authorities on which they relied. Nor do the submissions filed in this Court refer to relevant case law.
[26] I agree with the Judge that the family violence offending is the most serious. The following cases are of some assistance:
(a)In Sharma v R, the Court of Appeal upheld a global starting point of 25 months’ imprisonment imposed on one charge of assault with intent to injure and two breaches of protection order.25 It approved the sentencing Judge’s methodology of: taking 15 months as the starting point on the assault charge, which was a serious and sustained attack whereby the defendant forced entry into the victim’s home and choked her until she began to lose consciousness; adding an uplift of four months to reflect that this was in breach of a protection order; and finally adding an uplift of six months for a later breach of protection order where the defendant went to the victim’s house uninvited after attempting to contact her unsuccessfully, which the Court of Appeal agreed was solely for the purpose of intimidation. The facts of Sharma are evidently more serious than the facts here because there was an additional breach of protection order which was intended as an intimidation tactic, and the assault was serious and sustained.
(b)In McKenzie v R, the High Court upheld a starting point of 20 months’ imprisonment imposed on one charge of assault on a person in a family relationship and two breaches of a protection order.26 The defendant had previously been in a relationship with the victim and there was a protection order against him in her favour. He went to her house and
25 Sharma v R [2015] NZCA 468.
26 McKenzie v R [2024] NZHC 1296.
entered without permission. He refused to leave and kicked her in the lower leg. The second breach of protection order arose after he later sent multiple abusive messages by text and on Snapchat. The starting point was made up of 18 months for the offending itself with an uplift of two months for the defendant’s history of offending against the same victim. No issue was taken with the starting point on appeal. The offending in McKenzie is much more serious than Mr Wanahi’s due to the additional breach of protection order and the fact the defendant had entered the victim’s home as part of a “concerted attempt to manipulate her or cause her psychological pain”.27
[27] Based on these cases, a starting point on the lead charges of breach of protection order and assault of 12 months is justifiable. However, the uplift of six months to reflect Mr Wanahi’s history of offending against the victim was too high. It was open to the Judge to decide that no uplift was necessary, given the victim’s views. In any event I conclude the maximum available would have been two months.
[28] Given the burglary and wilful damage charges were treated as an uplift, 18 months was in itself plainly excessive. In Arahanga v R , the Court of Appeal observed that there was no tariff case for burglary because the range of circumstances in which the offence can be committed is so varied.28 However, it was observed that burglary of a domestic residence is a significant aggravating feature due to the heightened risk of confrontation with occupants.29 The Court observed dwelling house burglaries at the relatively minor end of the scale tend to attract starting points between 18 months and two years and six months’ imprisonment.30 In Faith v New Zealand Police, a ten-month uplift on family violence charges was found to be within range for a burglary of items worth $1,500 that took place in the daytime and involved a commercial shed.31
27 See [5].
28 Arahanga v R [2012] NZCA 480; [2013] 1 NZLR 189 at [78].
29 At [78].
30 At [78].
31 Faith v New Zealand Police at [32].
[29] Given that this was a low-level burglary that was conducted at a commercial premises, and as an uplift it must allow for the totality of Mr Wanahi’s offending, I consider that it could have attracted an uplift of an absolute maximum of 10 months — unless a later totality discount was applied to ensure the global starting point was not wholly out of proportion to the gravity of the overall offending taken together, which the Judge did not do here.32
[30] I consider that an uplift of one month would be the maximum available in respect of the charge of escaping from custody and the theft charges, given the low-level nature of all of that offending and the need to evaluate the totality of the offending.
[31] That leads me to the conclusion that the maximum available starting point to reflect the overall gravity of Mr Wanahi’s offending was 25 months, made up of:
(a)12 months to reflect the lead charges of breaching the protection order and assault;
(b)a two-month uplift to reflect the history of family violence against the victim;
(c)a ten-month uplift to reflect the burglary and wilful damage charges; and
(d)a one-month uplift to reflect the remaining charges.
Conclusion on starting point
[32] The starting point was clearly excessive. The maximum it could have been was 25 months; 12 months lower than the starting point reached by the Judge of 37 months.
32 Sentencing Act, s 85. Also see Middlemass v R [2025] NZCA 478 at [21]; and Booth v R [2016] NZSC 127 at [46].
Discounts
Guilty plea
[33] Ms Silk argues that the 15 per cent discount granted by the Judge for Mr Wanahi’s guilty plea should have been 20 per cent, in line with the new sliding scale set out in s 9H of the Sentencing Act,33 because the plea was entered at the case review hearing. She emphasises that Mr Wanahi entered his plea prior to full disclosure and suggests that Judge Greig may have misunderstood the sequence of events.
[34] I do not agree the Judge erred in applying a 15 per cent discount. The new sliding scale does not explicitly apply to Mr Wanahi. It, along with the bulk of other amendments to the Sentencing Act introduced at the same time, only applies to offences committed on or after commencement,34 which was on 29 June 2025.35 Even if it did apply, it only mandates the maximum discount that may be given. As Ms Lange has said, the Judge was entitled to assess the situation and find that, given the extended period during which the case review took place, a higher discount was not justified. There is no evidence that the Judge misunderstood the sequence of events. Finally, I note that the Judge rounded down when applying the discount and so in effect applied a 20 per cent discount.
Remorse and efforts to rehabilitate
[35] Ms Silk argues that the Judge should have granted at least a 10 per cent discount in recognition of Mr Wanahi’s remorse and efforts to seek rehabilitation on remand. She submits his genuine remorse can be seen through his letters to the Court, in which he apologises to the victim, and his willingness to engage in restorative justice (which failed because the restorative justice facilitator assessed a conference as “not suitable”). Counsel says Mr Wanahi’s behaviour in prison indicates a marked departure from previous occasions. She says the Judge’s failure to account for these matters was in breach of his obligations under s 8(j) of the Sentencing Act to “take into account any outcomes of restorative justice processes that have occurred, or that
33 The scale was inserted by s 10 of the Sentencing (Reform) Amendment Act 2025.
34 Sentencing Act, Sch 1AA, cl 26.
35 Sentencing (Reform) Amendment Act, s 2.
the court is satisfied are likely to occur”, and under s 9(2)(f) to take into account any remorse shown by the offender.
[36] If, on a proper and robust evaluation of all of the circumstances, a defendant has demonstrated genuine remorse, they may be entitled to a credit that is separate to the credit for a guilty plea.36 However, whether remorse is genuine is a question of fact and judgement. The defendant bears the onus of satisfying the judge their remorse is genuine.37
[37] I agree with Ms Lange that the Judge was entitled to reach the view that Mr Wanahi’s remorse was not genuine in respect of the family violence offending given his repeated reoffending against the same victim and his inability to take responsibility for his actions when speaking to the Corrections officer who wrote the PAC report. There was no evidence of Mr Wanahi’s remorse for the remaining offending. Mr Wanahi’s efforts to rehabilitate do not in my view change that assessment. While Mr Wanahi may have made some efforts to seek rehabilitation, he has not actually engaged in any rehabilitation. I acknowledge Ms Silk’s submission that a refusal to grant a discount for remorse on the basis that previous offending renders it unlikely to be genuine, along with an uplift for previous offending, may amount to double counting. However, any double counting is dealt with by my finding that the uplift for previous offending was too high and the maximum available was two months.
Background
[38] Ms Silk argues that the Judge erred by failing to grant a discount for Mr Wanahi’s background. However, she puts forward no basis upon which a discount should have been granted and it was not raised in oral submissions.
[39] While a defendant’s background may justify a discount if it helps to explain how they came to offend,38 there is insufficient evidence for such a discount here. The Corrections report on its own does not reveal a background which could be said to
36 At [64].
37 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [24].
38 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [109].
have causatively contributed to Mr Wanahi’s offending. It states that he is of Māori and Samoan decent, grew up mostly in Auckland and has strong whanau connections in Taranaki. He has five children. In those circumstances, it is difficult to conclude that the Judge erred by failing to provide a discount in recognition of Mr Wanahi’s background. The position could be different if, for example, Mr Wanahi or one of his relatives gave evidence suggesting a disrupted background. However, they have not.
Conclusion on discounts
[40] My view is that the Judge did not err in applying a guilty plea discount of 15 per cent or in refusing to apply discounts for remorse, rehabilitative efforts, or background.
Result
[41] I allow the appeal. Given my conclusion that the starting point should have at most been 25 months’ imprisonment, the end sentence was clearly manifestly excessive. Applying the effective 20 per cent discount imposed by the Judge results in an end sentence of 20 months’ imprisonment.
[42] I substitute the sentence imposed with a sentence of one year and nine months’ imprisonment. That is time served.
[43] I impose a release condition that Mr Wanahi must attend any assessment for any suitable programme, including a non-violence programme, as directed by a probation officer. I also impose a condition that Mr Wanahi must attend and complete any counselling, treatment or programme as recommended by the assessment and/or as directed by and to the satisfaction of a probation officer.
[44]The standard release conditions also apply.
Gwyn J
Solicitors:
C & M Legal, New Plymouth for Respondent
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