Wharewaka v The King
[2025] NZHC 2962
•8 October 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2025-404-359
[2025] NZHC 2962
BETWEEN WIREMU PEREPETI WHAREWAKA
Appellant
AND
THE KING
Respondent
Hearing: 16 September 2025 Appearances:
A O Graham for Appellant
V V Sudhakar for Respondent
Judgment:
8 October 2025
JUDGMENT OF O’GORMAN J
[Appeal against sentence]
This judgment was delivered by me on 8 October 2025 at 1 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
…………………………………
Solicitors/Counsel:
M E Goodwin, Auckland Meredith Connell, Auckland
WHAREWAKA v R [2025] NZHC 2962 [8 October 2025]
[1] Mr Wharewaka appeals the decision of Judge E P Paul on 12 June 2025 sentencing him to two years and six months’ imprisonment following a guilty plea1 in respect of 11 charges — two burglaries,2 six receiving charges,3 unlawful possession of ammunition,4 unlawfully using a motor vehicle,5 and driving while prohibited.6
[2]Mr Wharewaka appeals his sentence on four grounds:
(a)the starting point adopted by Judge Paul for the burglary charges;
(b)the totality reduction was insufficient and the uplift for the receiving charges was manifestly excessive;
(c)the guilty plea reduction was inadequate; and
(d)insufficient weight was given to his personal mitigating circumstances.
[3] In support of his appeal, the appellant seeks to admit new evidence in the form of a comprehensive Alcohol and Other Drug report (AOD report). If the appeal is allowed and the end sentence is below two years’ imprisonment, the appellant seeks home detention.
[4] The Crown opposes the appeal on all four grounds. While the approach taken by the sentencing Judge could be described as stern, it was within the range available and is not manifestly excessive.
Legal principles
[5] The Court must allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.7 Generally, the sentence must be shown to be manifestly excessive or wrong
1 R v Wharewaka [2025] NZDC 15111.
2 Crimes Act 1961, s 231(1)(a). Maximum penalty: 10 years’ imprisonment.
3 Sections 246(1) and 247(a). Maximum penalty: seven years’ imprisonment.
4 Arms Act 1983, s 22B. Maximum penalty: $10,000 fine.
5 Crimes Act, s 226(1). Maximum penalty: seven years’ imprisonment.
6 Land Transport Act 1998, s 52(1)(c). Maximum penalty: $10,000 fine.
7 Criminal Procedure Act 2011, s 250.
in principle.8 The focus is on the end sentence imposed, rather than the process by which it is reached.9
[6] The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of prior error, which may include questions of whether the starting point was too high given the facts, or of incorrect allowances.10
[7] Appellate courts do not indulge in mere tinkering with a sentence.11 The Court generally will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.
Facts of offending
[8]The two burglary offences were conducted as follows:
(a)At about 4.40 am on 30 December 2023, Mr Wharewaka and two co-offenders went to the basement of apartments in Rose Garden Lane, Albany. They gained entry by forcing open the garage roller door, then broke into a storage room by prying the door open. The cut the chains securing an e-bike and bicycle, and took those items. The items were together worth $7,399 but never recovered.
(b)At about 3.45 am on 23 January 2024, Mr Wharewaka and two co-offenders went to units at Taurarua Terrace, Parnell. They broke into a shared garage and took four e-bikes and three e-scooters, with a total value of $57,700. Two of the e-bikes were recovered by police and returned, but the rest were never recovered.
[9] The receiving charges arise from stolen e-bikes/e-motorcycles and bicycles recovered from Mr Wharewaka’s home address when a search warrant was executed on 20 February 2024, and evidence sourced from the cell phones of Mr Wharewaka
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].
9 At [36].
10 At [32].
11 R v Boyd (2004) 21 CRNZ 169 (CA) at [38].
and his partner also seized during that search. This led to receiving charges in respect of the following:
(a)One e-motorcycle was identified as stolen from corporate offices in Grey Lynn on 26 December 2023, along with two others that were not recovered. These were valued at $24,000.
(b)One e-bike was identified as stolen from an apartment bike shed in Waterview on 27 December 2023, valued at $1,325.
(c)Three e-bikes were identified as stolen by three unidentified offenders from the garage of apartments in Hobsonville on 23 January 2024. These were together valued at $16,000.
(d)The phones had photos of a black Subaru Impreza car located in the driveway of Mr Wharewaka’s home address, with metadata showing the photos were taken on those phones on 9 February 2024. This car was stolen sometime between 22 January 2024 and 4 February 2024 from Oteha. In some photos the Subaru Impreza had its correct number plate. In others it had the number plate registered to another car, being a different Subaru from which a number plate had been stolen while parked in Grey Lynn on 24 January 2024. The black Subaru Impreza was valued at $10,000 and not recovered.
(e)Mr Wharewaka’s phone had photos of a white Kawasaki ER motorcycle located inside the garage of his home address, with metadata showing the photo was taken by his phone on 14 February 2024. That motorcycle was stolen from Mount Wellington at about 2 am on 13 February 2024. That motorcycle was later found crashed in Parau displaying different plates, repainted, and with the Vehicle Identification Number scratched off. It was valued at $7,000.
[10] During execution of the search warrant at Mr Wharewaka’s home, police located 200 rounds of .22 calibre ammunition and 42 rounds of 9 mm calibre ammunition. Mr Wharewaka does not have a firearms licence, nor authorisation to possess ammunition.
[11] On 24 January 2024, police stopped a car travelling on Te Atatu Road because it had been reported as stolen from the Blockhouse Bay Bowls Club at about 10 am on 17 January 2024. The car had a damaged ignition barrel. Mr Wharewaka was the driver. Upon his arrest, police identified that he had no valid driver’s licence, because he had been forbidden to drive by a directive issued on 11 December 2023.
Judgment of the District Court
[12] The Judge adopted a starting point of 30 months’ imprisonment on the two burglary charges. He accepted the burglaries were premeditated and targeted to high-end items. In combination with the receiving offending and the amount of property located at his address, the Court concluded that the defendant operated in an organised syndicate for burglaries and receiving high-end electronic vehicles such as scooters and bicycles. Aggravating factors were the risk of confrontation at residential properties and the significant value of the items stolen. For two burglaries of this nature, the Judge considered that the starting point had to be at least two-and-a-half years.
[13] The Judge then applied an uplift of 18 months’ imprisonment (reduced from two-and-a-half years’ imprisonment on the principle of totality) for the receiving charges, and a further two months’ imprisonment for the motor vehicle charge. Again, the Judge commented that this was not a one-off mistake, but rather a premeditated programme of receiving high-end goods to feed the defendant’s methamphetamine habit, with offending conducted in the family home.
[14]The Judge then allowed credits of:
(a)20 per cent for the guilty pleas; and
(b)five per cent for remorse, including a willingness to engage in restorative justice.
[15] This produced a sentence of three years and two months’ imprisonment. That sentence was reduced by a further six months for the time spent on electronically monitored bail, and a further deduction of two months for time on remand.
[16] On the burglary and receiving charges, the end sentence was two years and six months’ imprisonment, to be served concurrently. A sentence of one month of imprisonment was imposed on the theft of the number plate charge, also to be served concurrently. Mr Wharewaka was convicted and discharged on the remaining charges.
Appellant’s submissions
[17] There is no tariff decision for burglaries due to the wide range of circumstances in which they occur. However, in Arahanga v R, the Court of Appeal provided guidance that dwelling-house burglaries at the relatively minor end of the scale tend to attract a starting point between approximately 18–30 months’ imprisonment.12
[18] As noted in Nelson v Police, starting points of less than 18 months’ imprisonment have been adopted in cases where no-one was home and no significant property taken, in which case that range might realistically start from 12 months’ imprisonment.13 In Nelson v Police, the defendant was sentenced on 15 charges over three months, the lead charge being burglary. On appeal, the starting point for the burglary was reduced to 14 months’ imprisonment as it was not clear Mr Nelson went inside the home, whether there were occupants present, or whether he stole anything.14
[19] The appellant draws an analogy with Curtis v Police, where the offending occurred at around 1.45 am, involved entry into a shipping container on a residential property, and property valued at $42,000 was stolen, with the offender motivated by a drug habit.15 The District Court imposed a starting point of 20 months’ imprisonment
12 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78]; and Gibb v R [2017] NZCA 532 at [4].
13 Nelson v Police [2019] NZHC 2434 at [28]–[33].
14 At [40].
15 Curtis v Police [2019] NZHC 1623.
for the burglary, and this was upheld by the High Court. Woolford J did not consider that there was any great distinction between entry into a container as opposed to entry into the house.16 He also found no error in the sentencing Judge uplifting the starting point of 20 months’ imprisonment by six months to reflect the appellant’s six previous convictions for burglary over a seven-year period and his other dishonesty offending, which included four receiving convictions.17
[20] Another comparison is with Blissett v Police, involving two residential burglaries by a recidivist burglar.18 This case involved entry into a house interior. Contrary to the approach taken by the District Court, the High Court identified one burglary as a lead offence and adopted a starting point of 17 months’ imprisonment. For the second burglary an uplift of three months was imposed. The burglary and receiving offences were sufficiently connected to make concurrent sentences appropriate, and an uplift of 11 months for the receiving offences was applied together with a one-month uplift for possession of drug utensils. A further uplift of 12 months was applied to reflect Mr Blissett’s 13 previous burglary convictions, bringing the global starting point to 44 months’ imprisonment.19
[21] A third comparison is with Dixon v Police.20 That case involved two residential burglaries on 3 and 8 February 2012, the second of which involved the offenders climbing to the second level and breaking through a window into the master bedroom. Contrary to the higher starting point adopted in the District Court, the High Court suggested that a starting point of 18 months’ imprisonment would have been appropriate for the first burglary charge, with an uplift of four months for the second one.21 On the other hand, the sentencing Judge’s six-month uplift for six previous burglary convictions was considered generous, given that it left out the balance of Mr Dixon’s 69 other convictions.22 Other allowances were also considered generous. Accordingly, the High Court dismissed the appeal on the basis that the end result was within the available range.
16 At [22].
17 At [23].
18 Blissett v Police [2013] NZHC 156.
19 At [49]–[51].
20 Dixon v Police [2013] NZHC 1469.
21 At [16].
22 At [16].
[22] Based on the above cases, the appellant suggests that 18 months’ imprisonment was the appropriate starting point for the first burglary, with an uplift of four months for the second, resulting in a starting point for the burglary offending of 22 months’ imprisonment.
[23] The second ground of appeal is that an excessive uplift was applied for the receiving charges, which failed to recognise the connected nature of the offending and apply a totality principle. In Anderson v R, the Court of Appeal emphasised the importance of treating related offending as a cohesive whole, especially when it arose from an overarching criminal scheme.23 In that case, a starting point of three years’ imprisonment was regarded as appropriate for related theft and receiving offending.24
[24] Applying that methodology, the appellant suggests that a combined starting point for the burglary and receiving charges would be in the vicinity of 38–40 months’ imprisonment, and applying an uplift of two months for the remainder of the charges would bring the total starting point to 40 months’ imprisonment, rather than the 50 months imposed by the District Court.
[25] The third ground of appeal alleges that a reduction of 20 per cent for Mr Wharewaka’s guilty plea was inadequate. Mr Wharewaka was unable to plead guilty to the charges as initially formulated, because that alleged six burglaries whereas the substance of his involvement in four of them was simply from the fact that stolen items were located in his possession, which amounts to receiving rather than burglary. The significance is material because the maximum term of imprisonment for burglary is 10 years, compared with seven years for receiving. The appellant says that Mr Wharewaka entered a guilty plea at the earliest opportunity, once the number of burglaries was reduced from six to two. On that basis he is entitled to the full 25 per cent reduction. His willingness to accept responsibility for his offending from the outset is demonstrated by the full confession given to the police during an interview, and his assistance with further investigations.25
23 Anderson v R [2017] NZCA 91 at [8].
24 At [9].
25 Counsel for the appellant also refers to a prior sentence indication. In accordance with the Criminal Procedure Act, s 65, the fact that Mr Wharewaka made a request for a sentence indication is inadmissible and I put it to one side.
[26] The fourth ground of appeal is that inadequate weight was given to the background factors that the offending was driven by Mr Wharewaka’s methamphetamine addiction, and the impact of sentencing on his four dependent children. The AOD report draws a causal nexus between Mr Wharewaka’s substance abuse and the offending, outlines his efforts at achieving sobriety over the last 16 months, and opines that a childhood head injury, parental neglect and financial insecurity, early exposure to gang culture, substance abuse and violence may have predisposed him to methamphetamine addiction. The report writers’ assessment is that Mr Wharewaka has reached the contemplation stage of being open to make a change, but he is not necessarily ready for that step. This gives some optimism for rehabilitation, including termination of criminal associations, leading to the potential for sustained recovery if Mr Wharewaka engages in community-based rehabilitation. For these other personal mitigating factors, the appellant seeks a further reduction of 15 per cent, in addition to 25 per cent for the guilty plea and five per cent for remorse.
[27] Applying the above reductions (along with reduction for time on EM bail, which was uncontested) to an adjusted starting point of 38–40 months’ imprisonment would result in an end sentence of 18 months’ imprisonment, well within the threshold eligibility for home detention. The appellant seeks home detention as the least restrictive outcome appropriate in the circumstances.
Respondent’s submissions
[28] The Crown opposes the appeal on all four grounds. While the approach taken by the sentencing Judge could properly be described as stern, the Crown contends it was within the range available and is not manifestly excessive.
[29] The Crown contends that there was no error in the starting point adopted for the two burglary charges. In choosing a higher starting point within the usual range for dwelling-house burglaries, the sentencing Judge was informed by the following aggravating features of the offending:
(a)sophisticated and premeditated nature of the offending amounting to an “organised syndicate for the burglary and receiving of high-end electronic vehicles”;
(b)risk of confrontation with house occupants; and
(c)the high value of stolen property.
[30] The respondent submits that the starting point adopted by the sentencing Judge was within range and not manifestly excessive taking into account other cases where starting points between 20 and 30 months’ imprisonment were given for relatively sophisticated burglaries of residential properties where high-value property was stolen.26
[31] In this case, Mr Wharewaka’s offending occurred on multiple occasions, was sophisticated and premeditated, and involved particularly high-value items and a significant quantity of property. Although the property was taken from garages rather than internal rooms, as in Curtis v Police that distinction should not be treated as significant. Mr Wharewaka’s conduct involved forced entry into residential apartment complexes where there remained a risk of confrontation because residents may naturally feel invaded in their home environment (including locked garages) and seek to protect their property.
[32] In respect of the second ground concerning the uplift for the receiving charges and questions of totality, the respondent again submits that an uplift of 18 months for six receiving charges was within range, reflecting that this was a premeditated programme of offending linked to his methamphetamine habit. A starting point of two years and six months’ imprisonment for those charges alone would have been justified, but the uplift was reduced to 18 months applying the totality principle. The respondent referred to R v Lasike,27 Anderson v R28 and Ward v Police29 as examples where a starting point of at least two years and six months’ imprisonment was adopted for receiving stolen property valued between $20,000 and $80,000. Considering those cases, the uplift was within the available range.
26 See Curtis v Police, above n 15; Bracey v Police [2022] NZHC 476; Tafengatoto v Police [2018] NZHC 2452; Nandan v Police [2024] NZHC 505; and Maaka-Wanahi v Police [2023] NZHC 3291.
27 R v Lasike HC Auckland CRI-2004-044-7103, 7 September 2006.
28 Anderson v R, above n 23.
29 Ward v Police [2024] NZHC 2884.
[33] The respondent says the methodology adopted by the sentencing Judge was entirely orthodox, but even taking the appellant’s preferred approach of assessing the entire criminal enterprise to assess a global starting point, that would be within range as well because the combined offending was a sophisticated operation targeted at high-value items.
[34] On the guilty plea reduction, the respondent submits that the appellant was not entitled to a full (25 per cent) credit because the guilty plea was not entered at the earliest opportunity. Mr Wharewaka could have pleaded guilty to the two burglary charges that were within the charges he originally faced but did not do so. Furthermore, the Supreme Court has recognised that if the Crown accepts a plea to a lesser charge, that in itself can be a concession, so a full guilty plea credit may result in an improper sentence.30
[35] The post-sentence AOD report is not fresh, but the respondent accepted the content is credible so did not oppose its admission,31 but said the strength and potential impact on sentence is minimal. While the personal circumstances described in that report could justify a credit on s 27 grounds, the sentencing Judge made no error in not allowing any such reduction because of the lack of information before him, combined with the premeditation and sophistication of the offending. The respondent submits the appropriate reduction (if any) would be limited to five per cent. This was the level permitted in Fraser v R32 and Kingi v Police.33 In Berkland v R, the Supreme Court only permitted a 10 per cent deduction for Mr Berkland’s background and addiction factors combined.34 Mr Wharewaka’s personal background would not merit as much. A small adjustment of up to five per cent would amount to tinkering.
30 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [62].
31 Robertson v R [2024] NZCA 162 at [28]; and S v R [2024] NZCA 235 at [16].
32 Fraser v R [2024] NZHC 2638 at [33].
33 Kingi v Police [2024] NZHC 143 at [21].
34 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
Analysis
Starting point
[36] In Allen v Police, counsel for the appellant submitted that the sentencing Judge made an error by assuming 18 months’ imprisonment was the lowest possible starting point for a burglary charge and that a sentence of imprisonment was not warranted for a “first time burglar”.35 Powell J held that the starting point and the overall sentence was within range and appropriate.36 He noted that the historic approach in Senior v Police37 of treating the level of an offender’s recidivism as relevant to the starting point was in “tension” with the modern sentencing approach.38
[37] For the same reasons, I reject the appellant’s assertion that the starting point was manifestly excessive because these two burglaries were at the minor end and because Mr Wharewaka should be treated as a “first time burglar”. The starting point reflects the nature of the offending in question, with prior offending of a similar nature (if relevant) taken into account as a personal aggravating factor resulting in an uplift at a later stage. No uplift of that type was applied in this case, reflecting that these are Mr Wharewaka’s first convictions for burglary and receiving.
[38] I see no error whatsoever with the methodology adopted by the sentencing Judge. In any event, I accept the respondent’s submissions that the starting point (both its components and assessed globally taking into account totality principles) is entirely within range and consistent with other cases of a similar nature. In my view, the aggravating features of the offending listed at [12] and [29] above properly place the two burglary offences at the top of the identified range of 18–30 months’ imprisonment for dwelling-house burglaries of this type. As in Curtis v Police, I consider that breaking into secure garages of apartment complexes is just as intrusive of the residential environment, and carries the same if not greater risk of confrontation with owners/occupants given the potential of more traffic through common areas. The high value of the targeted items and the sophisticated and premeditated nature of the offending distinguish this case from others where lower starting points were adopted.
35 Allen v Police [2025] NZHC 2821 at [13]–[14].
36 At [18]–[20].
37 Senior v Police (2000) 18 CRNZ 340 (CA).
38 Allen v Police, above n 35, at [19].
Receiving and totality
[39] In respect of the uplift for the receiving charges, I accept that this was within range and could potentially have been even higher based on the cases referred to by the respondent.
[40] The receiving charges involved no double-counting with the burglary charges, since they did not relate to the same stolen goods. The offences addressed by those charges represented significant criminality in their own right that required a sufficient response. In my view, the small uplift sought by the appellant would fail to respond to the scale, number of offences, and commerciality of this operation. I consider that the uplift applied by the sentencing Judge was within range and appropriate to achieve the principles and purposes of sentencing, particularly accountability, denunciation, deterrence, protecting the community, and consistency with analogous cases. The size of the uplift appropriately took into account the totality principle, given that it was much lower than the starting point otherwise warranted.
[41] In Anderson v R, the comment that counsel for the appellant refers to was about whether the arson charge should have been the lead offence, or whether it should instead have been treated as part of an aggravating feature of the theft and receiving charges (the Court of Appeal’s preferred approach). The arson was setting alight a Nissan Terrano to get rid of evidence it had been stolen. The total value of the vehicles in that case against Mr Anderson (including chattels in a mobile cabin) was $52,000. The Court of Appeal took the view that a global starting point of four years for the theft, receiving and arson charges was appropriate, however arrived at.39 That compares with a total value of more than $120,000 for the value of items in this case, and a global starting point of four years and two months’ imprisonment. In my view, those global starting points are entirely consistent.
39 Anderson v R, above n 23, at [8]–[9].
Guilty plea reduction
[42] I accept the respondent’s submission that no more than 20 per cent is appropriate by way of deduction for the guilty pleas, given the timing. Guilty pleas could have been entered earlier for the two burglary charges but were not. I also accept that reducing the other charges to ones for receiving does not necessarily mean the lesser charges were all that were supportable on the facts. This is the type of situation referred to in Hessell v R where that concession made by the Crown may not reflect the full extent of the offending, so allowing the maximum credit would over-reward the appellant when the full benefits to the system of early pleas were not in fact achieved.
Background, deprivation and effect on whānau
[43] The appellant submits that Mr Wharewaka’s recent offending arose “due to a methamphetamine addiction”, and that the expert confirms that his offending was “directly caused by methamphetamine addiction stemming from unresolved childhood trauma”. He is otherwise characterised as a first-time property and dishonesty offender, given that his previous convictions are limited to numerous assault convictions, cannabis cultivation, driving offences and breach charges.
[44] While the pre-sentence report and AOD report both refer to his drug use, they do not go as far as asserting that the burglary and receiving offending were solely to fund a drug addiction. Extracts from those reports are as follows:
Mr Wharewaka quickly became addicted to methamphetamine, after using it every day for three months. Mr Wharewaka believes that he participated in the burglaries for the “rush” while under the influence of methamphetamine.
…
Mr Wharewaka reports that, upon reflection, at the time of the offending he felt as though the 9–5 life was not for him and he could easily have greater freedom with more money. Mr Wharewaka believes that this was easy to think about because of his upbringing…
…
Mr Wharewaka reports that methamphetamine kept him motivated to engage in criminal activity.
…
Mr Wharewaka began using methamphetamine regularly in 2023 at the age of about 36. He first tried the drug when he was about 15 and used it one or two times but did not continue using. Mr Wharewaka used methamphetamine daily for about two to three months in the 12 months leading up to his arrest in January 2024. He purchased an ounce, 28 grams, of methamphetamine during this time for $6,000, which he consumed in about two months, equating to about half a gram a day, though he would share some of this with others.
…
He says methamphetamine made him much more impulsive and likely to take risks. All of his current offending was undertaken while using methamphetamine and he does not believe he would have done any of it without using the drug.
…
Mr Wharewaka says his offending began due to using methamphetamine and needing to make more money than he was currently earning. When he continued offending, he was using methamphetamine heavily at the time. He describes being so high he did not try to hide his face in front of cameras. He says there is no way he would have behaved like that, or offended, while sober, particularly now he has a family.
[45] Section 9(3) of the Sentencing Act provides that the court must not take into account, by way of mitigation, the fact that the offender was, at the time of committing the offence, affected by the voluntary consumption or use of alcohol or any drug or other substance (other than a drug or other substance used for bona fide medical purposes).
[46] Despite that restriction, the personal circumstances and background of the appellant may be considered under s 27 of the Sentencing Act. Drug use may also be relevant under s 8(1)(i) when considering rehabilitative purpose.
[47] In Berkland v R, the Supreme Court acknowledged that there “will always be connections between the different dimensions of an offender’s background and their choice to offend, although the nature and strength of those connections will vary”.40 Background and deprivation factors impact sentencing only when it can be established that there is “causative contribution” to the offending, though it is no longer necessary to establish they were the “operative” or “proximate” cause.41 The Supreme Court
40 Berkland v R, above n 34, at [107] per Winkelmann CJ, William Young, Glazebrook and Williams JJ.
41 At [109]–[110].
emphasised that each case must be assessed on its facts, and that addiction-based reductions should not be automatically excluded for commercial offending. However, the Court also recognised that in many cases, commercial motivation will be inconsistent with the impairment of rational choice due to addiction, and thus a reduction will not be justified.42
[48] In Va’a v R, the Court of Appeal upheld a modest 2.5 per cent reduction for four different background factors, because there was no basis to conclude that Mr Va’a was exploited, manipulated or coerced into the offending (drug importation),43 and it had a clear element of commerciality, planning and premeditation.44 In those circumstances, it could not be shown that Mr Va’a’s history was sufficiently and causally connected to his offending when balanced against the seriousness of the offending and the inference of heightened agency.45
[49] Taking into account the content of the pre-sentence report and AOD report, I accept that Mr Wharewaka was affected by drugs when he conducted the offending in the sense referred to in s 9(3) of the Sentencing Act. Based on his own account, that seems to explain why he made poor decisions, enjoyed the “rush” of offending, and did not hide his face from the security cameras, leading to his identification. Those are not mitigating factors.
[50] I do not accept that Mr Wharewaka’s self-reporting substantiates that he offended to fund his drug addiction, or that he lacked culpability in making those choices because of a causative relationship with his background and drug use. There is no basis to conclude that he was exploited, manipulated or coerced into the offending, and it was clearly commercially motivated, planned and premeditated. He spent $6,000 on drugs over the relevant period, but stole items worth in excess of
$120,000. This was with the express objective of achieving “greater freedom with more money”, which he said was easy to think about because of his upbringing. This seems related to the following quotes in the AOD report about his exposure to gang culture between the ages of 14 to 17:
42 At [127]–[128].
43 Va’a v R [2025] NZCA 473 at [23].
44 At [26].
45 At [28].
It was a totally different lifestyle. Like just a lot of money, like driving around on nice cars. I couldn’t even drive and just the first day I got down there I got given a stack of money because I had to go shopping, tidy myself up and stuff like that.
…
I was fortunate [because of who my family were]…all I was doing was driving around with my older cousins and just picking up money and just like reloading and stuff like that…but I’ve seen a lot of it…driving the people who are going to do what they’re going to do…
[51] I accept that there is deprivation, a chaotic upbringing and some types of abuse in Mr Wharewaka’s background, but I do not consider that these matters justify a s 27 reduction in this case for offending that was commercially motivated without any evident impairment of Mr Wharewaka’s agency and ability to make rational choice. I therefore find no error in the sentencing Judge deciding not to provide any reduction of that nature.
[52] A small deduction of around five per cent could have been justified for the impact on his four children. In Philip v R, the Supreme Court recognised the effect of sentencing on the appellant’s young child as a separate mitigating factor reflecting subs 8(1)(h)–(i) of the Sentencing Act.46 In C (CA 153/2023) v Police, the Court of Appeal stated that “[a]ttention to the impact of a custodial sentence on the family life of an innocent child is required in all cases”.47 I am not satisfied on the facts that a further deduction is necessary, given that the children remain in the care of a loving and prosocial mother with wider family support. In any event, I consider this would amount to tinkering.
Conclusion
[53] For the above reasons, I am not satisfied that the sentencing Judge made any errors, nor do I consider that the sentence was manifestly excessive. Considerations of home detention therefore do not arise.
46 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571 at [52].
47 C (CA153/2023) v Police [2024] NZCA 136 at [60(b)].
Result
[54]The appeal is dismissed.
O’Gorman J
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