Wanakore v Police

[2025] NZHC 1268

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2025-443-000001 CRI-2025-443-000002 [2025] NZHC 1268

BETWEEN  WILLIAM HERANGI WANAKORE

Appellant

AND  NEW ZEALAND POLICE

Respondent

Hearing:                   1 May 2025

Appearances:           J C Hannam for Appellant (via AVL)

J M Woodcock for Respondent (via AVL)

Judgment:                21 May 2025

Reissued:                 10 July 2025 Effective date

of Judgment:            21 May 2025

JUDGMENT OF PRESTON J

This judgment was delivered by me on 21 May 2025 at 3.30 pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

WANAKORE v NEW ZEALAND POLICE [2025] NZHC 1268 [21 May 2025]

Introduction

[1]    Mr Wanakore appeals the sentence imposed in the New Plymouth District Court of two years and three months’ imprisonment on a raft of charges, including driving while disqualified, male assaults female and breaches of court orders/sentences.1

[2]    The sentencing required Mr Wanakore to be re-sentenced on two sets of charges because he had breached the sentences originally imposed, and sentenced also on fresh charges.

[3]Mr Wanakore appeals.

[4]    He says the Judge wrongly and disproportionately increased one component of the re-sentencing, an  original  term  of  community  detention,  by  uplifting  it  to  27 months’ imprisonment. This has led to an end sentence which overstated the seriousness of the offending overall and is manifestly excessive.

Background: previous offending and sentences imposed

[5]    It is helpful to set out the sequence of offending, sentences originally imposed and fresh charges which were before the Judge.

Charge 1: breach of supervision

[6]The first charge for re-sentencing was a charge of breaching supervision.

[7]    The offending giving rise to the original sentence of supervision involved disqualified driving (3rd or subsequent). On 4 August 2016, Mr Wanakore was disqualified indefinitely from driving. On 19 October 2021 he drove while disqualified, his sixth conviction of this kind.

1      Police v Wanakore [2024] NZDC 29304.

[8]    Mr Wanakore was sentenced to nine months’ supervision and 150 hours community work for that driving offence. He was therefore required to report weekly to  a  probation  officer  as  a  condition  of  supervision.   On  1  February  2023,   Mr Wanakore failed to report and made no contact to explain his absence, giving rise to a charge of breach of supervision.

[9]    On 30 October 2023, Mr Wanakore was sentenced to 12 months’ supervision on the breach of supervision charge. But he stopped reporting to his probation officer on 29 February 2024. As a result, Corrections applied to cancel and substitute this sentence.

Charges 2, 3 and 4: sentence of community detention

[10]   Mr Wanakore was also re-sentenced on charges 2, 3 and 4 involving driving while disqualified (3rd and subsequent)2 (x 2) and a charge of male assaults female.3

[11]   The background to that  offending is  that, being a disqualified driver,  on    26 December 2022 Mr Wanakore drove a motorcycle at one time reaching a maximum speed of 112 km in a 100 km per hour zone. On 12 June 2023, Mr Wanakore drove a motor vehicle and was stopped at a routine traffic stop. He readily admitted he was disqualified from driving.

[12]   The male assaults female charge arose from an incident on 3 August 2023. On that date, Mr Wanakore was at a residential address where he had been living in the garage for a few months. A family harm incident developed between the victim and her partner and the victim tried to leave in her car. There had been two collisions between her vehicle and her partner’s vehicle. Mr Wanakore ran over to her car, removed the keys and struck her once in the jaw and attempted to punch her head a further four or five times while she was sitting in the car. Only one punch connected, striking her on the left cheek and causing a small cut to the inside of her mouth. The victim left the property on foot carrying her baby.

2      Land Transport Act 1998, s 32(1)(a) and s 32(4); maximum penalty two years’ imprisonment or

$6,000 fine.

3      Crimes Act 1961, s 194(b); maximum penalty two years’ imprisonment.

[13]   When Mr Wanakore originally appeared for sentence on these charges in February 2024, the same Judge sentenced him to six months’ community detention, on each charge concurrently. However, Mr Wanakore breached that sentence, failing to reside at the approved address and remaining absent for six days following sentencing. He was offered the opportunity to obtain retrospective occupant consent but failed to do so or enable this.

Further offending: charges 5, 6 and 7

[14]   By the time of sentencing on 28 November 2024, further charges had arisen as follows.

[15]   On 12 June 2024, Mr Wanakore assaulted his partner while subject to a protection order in his partner’s favour. He threatened to “smack [her] up” and grabbed her by her hoodie when she attempted to flee the property, dragging her back along the footpath and throwing her into the house. The victim’s 10-year-old son was present at the time of the offending, in which she sustained grazed knees and a torn jumper. This offending gave rise to charges 5 and 6: breach of protection order4 and assault on a person in a family relationship.5

[16]   As noted above, while subject to a supervision order, Mr Wanakore last reported to his probation officer on 29 February 2024. Between 6 March and 5 June 2024, he failed to report as required, did not contact community corrections and his whereabouts remained unknown. This gave rise to a further charge of breach of supervision: charge 7.6

Sentencing decision under appeal

[17]   After setting out the various matters for sentencing and re-sentencing, the Judge noted that he had previously imposed two lenient sentences on those matters for which Mr Wanakore was for re-sentence. The Judge explained he had done so against

4      Family Violence Act 2018, s 90(a) and s 9 and s 112(1)(a).

5      Crimes Act 1961, s 194A; maximum penalty two years imprisonment.   Police had recorded     14 prior family harm incidents involving the couple. A final protection order against the appellant had been in place since 14 December 2023.

6      Sentencing Act 2002, s 70(a); maximum penalty three months imprisonment or $1000 fine.

the then recommendation of the probation  officer,  who  had  expressed  the  view Mr Wanakore “could not…and would not do….” that sentence. The Judge acknowledged he had been wrong in his assessment, as Mr Wanakore had indeed failed to complete, or even start, the sentence.

[18]   Further, the Judge noted he had imposed the two lenient sentences based on Mr Wanakore’s repeated assurances that he intended to change and “do things differently”, before acknowledging a fresh letter from Mr Wanakore containing the same assurances.

[19]   But the Judge found Mr Wanakore had failed to demonstrate any genuine rehabilitative progress and, despite an offer of a place at Te Aroha, a residential substance abuse programme, Mr Wanakore had not recognised the need for behavioural change.

[20]   The Judge noted the pre-sentence report writer recorded Mr Wanakore showed limited insight into his offending and was not interested in rehabilitative programmes.

[21]   Addressing first the charges which had given rise to the sentence of community detention which was for re-sentence, the Judge imposed 18 months’ imprisonment on the two charges of driving whilst disqualified and nine months’ imprisonment for the male assaults female charge. On the fresh charges of breach of protection order and associated assault, a further nine months’ imprisonment was imposed. The Judge added two months additionally for the supervision breaches in February 2023 and June 2024.

[22]All terms were cumulative.

[23]   The table below sets out the terms as imposed, which combined gave a starting point of 38 months’ imprisonment, or three years’ two months imprisonment:

Charge Number	Offence Date	Charge	Penalty Imposed
Re-sentencing	(originally sentenced to 12 months’ supervision)
1	1 February 2023	Breach of supervision.	1 month imprisonment (cumulative)
Re-sentencing	(originally sentenced to six months’ community detention)
2	26 December 2023	Driving whilst disqualified (3rd or subsequent) (7th charge)	18 months’ imprisonment (cumulative)
3	12 June 2024	Driving whilst disqualified (3rd or subsequent) (8th charge)
4	3 August 2023	Male assaults female	9 months’ imprisonment (cumulative)
New charges
5	12 June 2024	Breach of protection order	9 months’ imprisonment (cumulative)
6	12 June 2024	Assault on a person in a family relationship
7	3 June 2024	Breach of supervision.	1 month imprisonment (cumulative)
Starting point adopted: 38 months’ imprisonment or three years and two months’ imprisonment

[24]   From the starting point of 38 months’ imprisonment, Mr Wanakore was given credit for his guilty pleas (amounting to 29 per cent), resulting in an end sentence of two years and three months’ imprisonment. The Judge cancelled the sentence of community detention and remitted outstanding fines, as Mr Wanakore was unable to pay them.

Correction of the record

[25]   As a preliminary issue, Mr Hannam for the appellant seeks correction of the record of proceedings, which does not reflect the sentence as imposed by the Judge in his oral remarks. As noted, a sentence of 18 months’ imprisonment was imposed on the (two) driving offences, whereas six months on each of these charges is recorded. Further, the Judge imposed a nine-month uplift for the breach of protection order and

assault, whereas a 12-month sentence was recorded. Counsel seeks correction of the record of proceedings.

The challenge on appeal

[26]   Mr Hannam’s challenge focusses on one component of the sentence: the review of the  sentence  of  community  detention.  Counsel  submits  the  substitution  of  27 months’ imprisonment in lieu of the original sentence of six months’ community detention imposed on the driving charges and the charge of male assaults female was excessive, unfair and disproportionate.

[27]   He argues that had the sentence instead been six months’ home detention, re- sentencing would have resulted in a “reversion” to 12 month’s imprisonment; a graphic example why re-sentencing on this aspect was out of step. Mr Hannam says it cannot be that an even higher term of imprisonment should be imposed in substitution, given the original term of community detention the Judge considered appropriate.

[28]   Counsel accepts that, given Mr Wanakore’s age, persistent history and that the driving charges were his seventh and eighth convictions of this type, a starting point of nine months’ imprisonment in respect of each of those charges would be within range. Further, it is accepted the sentence originally imposed may be seen as merciful, however Mr Hannam argues the cumulative term of 27 months’ imprisonment— following reduction for guilty pleas, effectively 20 months—was disproportionate and excessive in the circumstances. He submits that given the Judge originally assessed that six months’ home detention was sufficient to mark the offending, an end term of 12 months would have been sufficient to mark the failure of the community detention sentence.

[29]   No challenge is made to the remainder of the sentence components, which together totalled 11 months before application of guilty plea reduction (an effective term of  seven  months).  Mr  Hannam  seeks  substitution  of  an  end  sentence  of 19 months’ imprisonment, accordingly.

Analysis

[30]   Appeals against sentence are brought and determined under s 250 of the Criminal Procedure Act 2011. The court must dismiss the appeal unless satisfied, for any reason, that there was an error in the sentence and that a different sentence should be imposed. In accordance with orthodox principle, an appeal can be allowed only if the sentence was manifestly excessive, represented a material error of principle, or if there are exceptional circumstances.7

[31]   In general, an appeal challenging sentence as manifestly excessive focuses on the sentence the Judge imposed rather than the process by which it was reached, if the final sentence was reasonably available.

[32]For the respondent, Ms Woodcock argues this is the approach I should adopt.

[33]   The respondent acknowledges, on a principled basis, that the Judge may have erred by failing to assess the proportionality required in re-sentencing resulting in a disproportionate substituted sentence of 27 months’ imprisonment on the charges that the same Judge originally considered warranted six months’ community detention. But counsel argues the end sentence was not manifestly excessive, when the matter is approached afresh.

[34]   First, Ms Woodcock submits, the Judge would have been entitled to impose a sentence of 27 months’ imprisonment at outset. This analysis rests on counsel’s invitation to adopt the upper range of starting points for all of the offending with reference to several comparator cases. A starting point of seven to nine months’ imprisonment is submitted as appropriate for the male assaults female charge involving punches to the face.8 For driving whilst disqualified for what was the appellant’s seventh and eighth such conviction, a starting point in the range of 12 to 16 months’ imprisonment.9

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33]–[39].

8      McEwan v Police [2019] NZHC 3320 at [27]–[38].

9      Jenkins v Police [2018] NZHC 2055; and Johnathan v Police [2019] NZHC 1115.

[35]   Next, the respondent invites an uplift, which could have been applied at outset having regard to Mr Wanakore’s relevant previous history, of three months’ imprisonment.

[36]   Further, the respondent argues, those components of the sentencing and re- sentencing exercise which are not challenged, in relation to charge 1 (the re-sentencing for breach of further supervision) and fresh charges 5, 6 and 7, while within range, could have attracted a sterner response, again by reference to comparator cases.10

[37]   Finally, the respondent argues that while no proportionality assessment is expressed in the re-sentencing exercise, the Judge’s sentencing notes do not reflect any express accounting of the unserved portion—eight months— of the earlier sentence of supervision, and this factor also suggests the end sentence is both within range and appropriate.

[38]   This is the usual approach in many, if not most appeals which challenge only one component of a complex sentencing exercise, as here. It is orthodox and principled, as sentencing is a nuanced and evaluative process in which judges may approach the essential assessment of overall sentence and its component parts differently, while still reaching a sentence which is within range of that appropriate to mark offending.

[39]   However, the principle that the court will not intervene where a sentence is within the range that can properly be justified by accepted sentencing principles is not the sole yard stick. As the Court of Appeal made clear in Tutakangahau:11

… that encapsulation of the position will no doubt represent the position in the vast majority of cases. However, we need to acknowledge that there may be cases, although not common, where what has gone wrong is such as to require correction, albeit the sentence imposed is within range… In those circumstances, we expect the appeal court will impose the corrected sentence, giving effect to the sentencing judge’s intentions.

10 Puata v Police [2016] NZHC 1323 at [21] in support of the submission that a starting point of one to two months’ imprisonment is in the available range for a breach of supervision where the defendant had a history of such breaches; and Hamilton v Police [2014] NZHC 2698, involving offending involving breaches of protection orders with a single instance of minor violence identifying a starting point in the range of nine-12 months’ imprisonment. See also Sweeney v Police [2021] NZHC 1030.

11 Tutakangahau v R, above n 7 at [36].

[40]   Considering the matter afresh on appeal, the Crown concession is properly made: the process has been erroneous as the substituted sentence of 27 months’ imprisonment bore no proportionate relationship to the sentence of six months’ community detention originally considered appropriate to respond to that offending and there was no adjustment for totality. Where a court is re-sentencing for breaches of community-based sentences, there must be some proportionality with the sentence originally imposed, as the Court of Appeal explained in R v Morgan.12 While strict correlation is not required, the Court went on to observe:13

… The essential point is that the substituted sentence must be one that could properly have been imposed initially; and it must be imposed against the background that a sentence of community work was thought initially to be appropriate. In the present case, the appellant's failure to make any real effort to comply with the community work sentence meant that a community-based sentence was unsupportable and a sentence of imprisonment inevitable. But such a sentence had to be imposed against the background that a sentence of 150 hours of community work was initially seen as the appropriate sentence.

(emphasis added)

[41]   Relevantly, in the present case, Mr Wanakore has failed to “make any real effort” to comply with the community detention sentence. As the Judge noted, Mr Wanakore made no effort at all to complete that sentence, or even to start it. This means that imprisonment is clearly inevitable, as Mr Wanakore has shown himself to be incapable of serving a community-based sentence, as the probation officer had anticipated. Mr Wanakore was cautioned of imprisonment; when he was sentenced in February 2024, the Judge highlighted that “sooner or later, I am afraid a judge is just going to have to send you to prison again.”14

[42]   Although Mr Hannam submits I can infer a slight totality adjustment because the deduction for plea amounted to 29 per cent rather than 25 per cent, the upper limit in Hessell v R,15 the Judge made no remark about that and did not express the

12     R v Morgan [2008] NZCA 232. See also Malupo v R [2018] NZHC 801 at [15].

13 At [15].

14     Police v Wanakore [2024] 17565 at [4].

15     Hessell v R [2010] NZSC 135 [2011] 1 NZLR 607.

allowance as a percentage. I consider rather that, in what was a complex sentencing and re-sentencing exercise for the Judge it appears the guilty plea allowance on a percentage basis was slightly over generous.

[43]   I do not agree the remaining components of the sentence as constructed by the Judge should be uplifted on appeal as the respondent invites. That argument rests on selection of the topmost term for both the re-sentencing of the community detention charges and for all of the other sentence components including the fresh charges. Additionally, further uplift for Mr Wanakore’s previous history. But the Judge did not adopt that approach and as discussed nor did he adjust for totality. In the special circumstances of this case, I do not consider that approach is appropriate.

[44]   What then should be the re-sentence on the charges which had initially attracted a six-month term of community detention?

[45]   The length of imprisonment must be imposed in light of the sentence initially seen as appropriate. I am cognisant also the substituted sentence should not include any element of sanction for the failure to comply with the original sentence.16 It appears the Judge effectively applied an uplift or penalty for the failure to complete the community detention.   For the reasons I have discussed, while a sentence of     27 months may arguably have been available at outset, the sentence as originally imposed was nowhere near the upper range of potential sentences and did not include any uplift as the respondent now contends for.

[46]   Where concurrent terms of six months’ community detention were considered appropriate at outset, I consider the sentence should be substituted with one of five months’ imprisonment on each charge. This results in a sentence of 15 months’ imprisonment. That term has regard, as I must, to the unserved part of the earlier sentence and legitimately involves a modicum of increased firmness, given that it would be equivalent to a term of seven months’ home detention (rounded down).

16     R v Morgan, above n 12 at [13].

[47]   All other aspects of the District Court sentence remain unadjusted. The global starting point is therefore 26 months. With full credit for guilty pleas in accordance with Hessell, the end sentence is one of 19 months’ imprisonment.

[48]   I infer from the lack of discussion in the District Court judgment as well as reference in the pre-sentence report to Mr Wanakore’s reliance on others for shelter and precarious living situation that Mr Wanakore is not a suitable candidate for home detention. Further, as Mr Wanakore has shown himself to be incapable of serving a community detention sentence, it is not appropriate to grant leave to apply.17

Result

[49]The appeal is allowed.

[50]   I set aside the sentence imposed in the District Court, and substitute a sentence of 19 months’ imprisonment, as follows:

(a)on the two charges of driving while disqualified, five months’ imprisonment, concurrent;

(b)on the charge of male assaults female, a term of five months, cumulative;

(c)nine months’ imprisonment on the breach of protection order, cumulative;

(d)nine months’ imprisonment on the charge of assault in a family relationship, concurrent; and

(e)one month imprisonment on each of the charges of breach of supervision, concurrent.

17     Sentencing Act 2002, s 80I.

[51]   Given the substituted sentence imposed on appeal, I do not make an order retrospectively to correct the record of proceedings.

Addendum

[52]   This judgment originally issued on 21 May 2025. However, by memorandum the probation officer drew to the Court’s attention the omission by oversight to impose, in addition to the standard conditions which apply, the special release conditions as had  been  originally  set  out  within  the  Provision  of  Advice  to  Courts  dated   11 November 2024 in the District Court. Further, having reviewed Mr Wanakore’s file the probation officer recommended further special conditions of release as necessary in this case, as set out in his memorandum.

[53]   It is appropriate that, in addition to the standard conditions there are special release conditions imposed. I am satisfied, the further special conditions as set out at

[7] and [9] of the probation officer’s memorandum are necessary and appropriate including to reduce Mr Wanakore’s risk of reoffending and to facilitate and promote his rehabilitation and reintegration into the community.

[54]I make an order, accordingly:

(a)The standard conditions apply, and the special conditions as set out at

[7] and [9] of the Corrections memorandum of 30 May 2025; to expire on the sentence expiry date.

………………………………………

Preston J

Solicitors:

Crown Solicitor, New Plymouth

Counsel:
J C Hannam, Barrister, New Plymouth