White v The King

[2025] NZHC 1203

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2025-404-149

CRI-2025-404-150 [2025] NZHC 1203

BETWEEN

KIMANI WHITE

Appellant

AND

THE KING

Respondent

Hearing:	15 May 2025
Appearances:	C S Fredric for Appellant S J Cox for Respondent
Judgment:	16 May 2025
Reissued:	19 May 2025

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by Justice Lang On 16 May 2025 at 3.00 pm

Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:

Kayes Fletcher Walker, Crown Solicitor at Manukau C S Fredric, Barrister, Auckland

WHITE v R [2025] NZHC 1203 [16 May 2025]

[1]    Ms White pleaded guilty in the District Court to several charges involving allegations of dishonest conduct. On 27 February 2025, Judge D J McNaughton sentenced her to two years 10 months’ imprisonment.1

[2]    Ms White appeals against sentence. She contends the Judge erred in principle in several respects when formulating the sentence. As a result, she asserts the end sentence was manifestly excessive.

The offending

[3]    The Judge sentenced Ms White on three sets of charges. The most serious of these was a charge of robbery. This related to an incident that occurred on the evening of 8 March 2023. The victim of this offending was taking a nap in his vehicle in a public carpark. Ms White and her female co-offender approached the vehicle, causing the victim to wake up. They both asked him for the use of a cigarette lighter and he refused.

[4]    Ms White then got into the victim’s vehicle and continued to ask for a lighter. She opened a compartment in the centre console and removed $600 in cash that the victim had stored there. A struggle then ensued between the victim and Ms White. This resulted in the victim managing to regain possession of the sum of $400.

[5]    At this point, Ms White’s co-offender opened the driver’s side door of the vehicle and pulled the victim away from Ms White. Ms White’s co-offender then punched the victim approximately four to five times to his face. Ms White used this opportunity to get out of the vehicle and run away with the remaining cash. Her co-offender joined her in running away.

[6]    The victim continued to follow Ms White and her co-offender. Her co-offender responded by turning around and grabbing him in a bear hug. She then threw him to the ground, before kicking him three to four times to the head and body. She also punched him on five or six occasions to the head and body. Ms White and her co-offender then got back in their own vehicle and drove away. The victim suffered a

1      R v White [2025] NZDC 4397.

grazed elbow and cuts to one of his fingers and the back of his right hand. He also suffered injuries to his teeth and mouth.

[7]    Ms White was originally charged with aggravated robbery as a result of this incident. On the day of the hearing, which was also the day on which Ms White was sentenced, the Crown agreed to reduce the charge to one of robbery and she entered a guilty plea at that point.

[8]    The second set of charges comprised three charges of theft, three charges of dishonestly using a document and one charge of driving whilst forbidden. Ms White pleaded guilty to these charges approximately ten months after they were laid.

[9]    The most serious of the theft charges was laid as a result of an incident that occurred on the afternoon of 8 January 2022. On that date, Ms White entered a jewellery shop and put a nine-carat yellow gold bracelet into her handbag. She left the store without paying for the bracelet, which had a value of approximately $12,000.

[10]   Two weeks later, on 22 January 2022, Ms White entered a cosmetics store and stole perfume, body oil and moisturiser having a total value of approximately $750. Three months later, on 23 April 2023, Ms White entered a store and became angry when a shop attendant told her that several items displayed in the store were not for sale. While the shop attendant’s back was turned, she picked up her wallet from the front counter and left the store. This contained several bank cards. She subsequently used the victim’s bank cards on three occasions to obtain items having a total value of approximately $300.

[11]   The charge of driving whilst forbidden was laid after Ms White was stopped whilst driving a motor vehicle in Botany Downs on 18 May 2023. The police had forbidden her to drive on 22 March 2022 because she did not have a licence.

[12]   The third set of charges comprised two charges of theft of items having a value of less than $500. These were laid following incidents that occurred on the afternoon of 31 May 2023, when Ms White and an associate entered a store and stole several items of clothing having a total value of approximately $350. A short time later, they

returned to the store and stole an Apple watch having a value of approximately $250. Ms White denied these charges but Judge McNaughton found her guilty following a defended hearing.

The sentence

[13]   The Judge took the charge of robbery as the lead charge. He selected a starting point of two years’ imprisonment on that charge on the basis that it involved the theft of money from a vulnerable victim who had been asleep in his car.2 It also involved two offenders approaching the victim in concert and inflicting violence on him when stealing the money and leaving the scene. The Judge did not accept that the robbery occurred spontaneously after Ms White and her co-offender were refused a legitimate request to use a cigarette lighter. The Judge  said he was “perfectly satisfied” that  Ms White and her co-offender set out to commit a robbery from the outset.

[14]   The Judge viewed the most serious of the theft charges as being that relating to the theft of the gold bracelet on 8 January 2022. On a stand-alone basis he considered the starting point for sentencing purposes on that charge would  have been 18 months’ imprisonment. Having regard to totality principles, however, the Judge applied a nine month uplift. He then applied a further uplift of six months to reflect the charges relating to the theft of the cosmetics and wallet, as well as the subsequent use of the credit cards contained in the wallet. The Judge then added a final uplift of two months to reflect the theft charges arising from the shoplifting incidents that occurred on 31 May 2023.3

[15]   This process resulted in an overall starting point of three years five months’ imprisonment on all charges.

[16]   Turning to aggravating factors, the Judge applied an uplift of three months to reflect Ms White’s extensive criminal history for dishonesty offending. He also applied an uplift of two months to reflect the fact that much of the present offending had occurred whilst Ms White was on bail.4

2 At [23].

3 At [24].

4 At [24].

[17]   The Judge then applied a discount of 20 per cent, or nine months, to reflect Ms White’s guilty pleas.5 He also applied a discount of three months, or five per cent, to reflect rehabilitative efforts Ms White had made since her arrest.6 This produced the end sentence of two years 10 months’ imprisonment.7 The Judge imposed this sentence on the robbery charge and the charge relating to the theft of the gold bracelet. He imposed concurrent lesser sentences on the remaining charges.8

The appeal

[18]   On Ms White’s behalf, Mr Fredric advances the following arguments in support of the appeal:

(a)The Judge adopted a starting point on the robbery charge that was too high.

(b)The Judge applied an excessive uplift to reflect the remaining charges.

(c)The Judge erred in failing to give Ms White credit for time spent subject to electronically monitored (EM) bail conditions.

(d)The Judge gave Ms White insufficient credit for rehabilitative efforts made prior to sentencing.

Was the starting point the Judge selected on the robbery charge too high?

[19]   In advancing this aspect of the appeal, Mr Fredric places considerable emphasis on the following paragraph of the Judge’s sentencing remarks:

[27]   I really struggle to see any mitigation here. I vividly recall the CCTV of your role in those thefts out in the mall, running off with the property. They were brazen. You knew that the shop assistants had no legal authority to stop or detain you. You knew you were going to get away with it and that was all perfectly evident in your body language. This was professional shoplifting. The country is sick of it and the courts are sick of it too. The community has had enough. You deny the robbery, but you have pleaded guilty to a charge of

5 At [26]. The judge applied this to the overall starting point after taking into account the uplifts to reflect aggravating factors.

6 At [28].

7 At [29].

8 At [30].

robbery. As I said before, on the face of it, it was a joint enterprise, aggravated robbery, and you and your co-offender are very fortunate that the Crown agreed to a reduced charge.

(Emphasis added)

[20]   Mr Fredric contends the Judge erred in the approach he took in the above paragraph. He submits that the Judge ought to have sentenced Ms White on the basis that she was acting alone when she robbed the victim of the money that she found in his vehicle. Instead, he proceeded on the basis that this was in all material respects an aggravated robbery.

[21]   I make two points made about this submission. First, the Judge made these observations after he had already fixed the starting point to be imposed for the charge of robbery. He made them when he was considering whether the offending had any mitigating characteristics.

[22]   More importantly, however, I consider the Judge was entirely correct in the assessment that he made of the offending. The summary of facts makes it clear that this was joint offending by Ms White and her associate, who acted together to confront the victim in his vehicle. The request for a cigarette lighter was plainly a ruse on the part of both offenders. Ms White had no justification for getting into the vehicle or for opening the compartment in the centre console where she found the cash. As soon as the victim began to resist, violence was inflicted on him.

[23]   By admitting the charge of robbery, Ms White admitted committing a theft involving violence or threats of violence. That theft occurred whilst Ms White was in the company of her co-offender, who was also confronting the victim. The co-offender immediately intervened in a violent way once the victim began to resist Ms White’s efforts to steal the money. I accept that Ms White cannot be held responsible for the violence inflicted on the victim by her co-offender after the robbery had taken place. However, I echo the Judge’s comment that Ms White was extremely fortunate to have the charge reduced from one of aggravated robbery to robbery.

[24]   Further, the Judge selected a starting point of two years’ imprisonment after reviewing several authorities.9 Both counsel have devoted considerable energy to an analysis of these to show how they either support the approach taken by the Judge or show that he was wrong in his assessment of the starting point. What became clear from this exercise is that other cases are only helpful for showing the range within which a starting point is likely to lie.

[25]   Of the cases referred to by the Judge, I have found Mace v Police to be of some assistance.10 This contains Dunningham J’s analysis of sentences imposed in cases involving charges of robbery committed in circumstances where some violence has been inflicted.11 He noted that these were very fact specific.12 In each of these cases, a starting point between two and three years’ imprisonment was selected. Comparatively of the cases  referred  to  by  counsel,  the  range  appears  to  be  from 14 months to two and a half years’ imprisonment.

[26]   In the present case the offending involved several aggravating features. The first is the fact that it clearly involved a degree of premeditation. Ms White and her co-offender obviously saw the victim asleep in his car and decided to combine forces to rob him. They confronted him in concert whilst he was in a vulnerable position and Ms White then entered the vehicle unbidden. Although not as serious as a home invasion, the victim ought to have been able to feel safe in his own vehicle. Ms White then began to search the vehicle for items of value. When the victim resisted after she found and took the money, she became involved in a physical tussle with him.

[27]   Taking these factors into account I accept the Crown’s submission that, although the starting point of two years’ imprisonment is towards the higher end of the available range, it is not outside it. This ground of appeal fails as a result.

9      Smith v R [2022] NZHC 2782; Jensen v Police [2020] NZHC 726; R v Kawhe [2022] NZHC 1852; Mace v Police [2024] NZHC 1086; Love v R [2022] NZCA 614 and Petersen v R [2022] NZHC 2742.

10 Mace v Police, above n 9.

11 Georgeson v Police HC Christchurch CRI-2009-409-217, 18 February 2010, Prince v Police CRI- 2008-404-283 HC Auckland, 16 February 2009; and Smith v R [2022] NZHC 2782.

12 Mace v Police, above n 9, at [35].

Did the Judge apply an uplift that was too high on the remaining charges?

[28]   As already noted, the Judge applied uplifts totalling 17 months to reflect the remaining charges. These comprised nine months on the charge relating to the theft of the gold bracelet and six months on the charges relating to the theft of the cosmetics and wallet, as well as use of the credit cards. He applied an uplift of two months on the two shoplifting charges.

[29]   I do not see how the uplift of nine months on the charge relating to the theft of the gold bracelet can be criticised. Given the value of this item, I agree with the Judge that a sentence of around 18 months’ imprisonment would have been appropriate on a stand-alone basis. The reduction to nine months to reflect totality principles appears to be appropriate.

[30]   I agree with Mr Fredric, however, that the uplift of eight months to reflect the remaining charges was excessive. The theft of the remaining items was opportunistic and did not result in the victims suffering particularly significant financial loss. Likewise, the two shoplifting charges related to property having a relatively low value. I consider the remaining charges did not warrant an uplift of more than four months. This ground of appeal accordingly succeeds.

Did the Judge err in failing to apply a discount for time spent subject to restrictive EM bail conditions?

[31]   Ms White was subject to EM bail  conditions  for  a  period  of  approximately 18 months.  As  Mr  Fredric  points  out,  s  9(2)(h)  of  the  Sentencing Act 2002 requires the Court to take into account any time that an offender has spent on EM bail, the restrictiveness of EM bail and the extent to which the offender has complied with those restrictions. Mr Fredric contends that the Judge ought to have given Ms White a credit of approximately six months to reflect this factor.

[32]   Ms White was initially granted EM bail subject to a 24-hour curfew. That was obviously a very restrictive bail condition. However, on 16 June 2024 her bail

conditions were varied to allow her to go grocery shopping for 90 minutes on one occasion each week.

[33]   There is no established formula setting the level of discount to be given for compliance with restrictive EM bail conditions over an extended period. This is very much within a sentencing Judge’s discretion taking into account the factors referred to in s 9(2)(h). The most that can be said is that, in cases where an offender has been compliant with his or her EM bail conditions over an extended period, credit will commonly be given for that factor. It is generally calculated as being between one- third and one-half of the time the offender has spent subject to those conditions.

[34]   Counsel for the respondent points out that Ms White breached the conditions of her EM bail on six occasions as follows:

(a)on 4 December 2023 Ms White was arrested after failing to appear at callover on 30 November 2023;

(b)on 10 April 2024 she left her bail address and went to two separate residential properties before returning home;

(c)on 11 October 2024, she failed to present at the door of her address when required to do so by the police;

(d)on 20 October 2024 she tampered with her bracelet;

(e)on 3 December 2024 she deviated from an approved absence to attend a medical appointment— she spent two minutes at the appointment before going to a nearby shopping centre; and

(f)on 27 January 2025 she made an unauthorised stop at a supermarket.

[35]   The pre-sentence report also recorded that Ms White had deviated from an approved absence on eight occasions and had returned late or left her address without an approved absence on five occasions. In addition, there were 10 occasions on which Ms White permitted her tracker battery to run flat. The Judge said that he was not

prepared to apply a discount for the time spent on EM bail “given the multiple breaches listed in the reports”.13

[36]   Had she not breached her EM bail conditions I consider Ms White would have been entitled to a discount of around six months for the time she spent on EM bail. This takes into account the fact that she was entitled to leave her address on one occasion each week to go shopping. I also accept that the numerous occasions on which Ms White breached her bail conditions meant the Judge was entitled to reduce the credit to be given. However, given the very lengthy period on remand I consider that some credit should have been given notwithstanding Ms White’s undoubted history of non-compliance. I consider a discount of three months should have been applied to reflect the fact that she spent approximately 18 months subject to restrictive EM bail conditions.

Should the Judge have applied a greater discount to reflect rehabilitative efforts undertaken by Ms White prior to sentencing?

[37]   The Judge had adjourned sentencing on the charges other than the robbery charge for several months to enable Ms White to undertake rehabilitative efforts. He referred to this in the following passage of his remarks:

[28] The programmes that you have done, which was the  reason  I  adjourned the sentence last time, are not the sort of substantive rehabilitation programmes that I would have expected. These are short course living skills, a living well workshop, a work-ready programme. I can give you some credit or that but not much. Five per cent.

[38]   Mr Fredric contends that the Judge should have applied a discount of at least ten per cent to reflect the rehabilitative efforts Ms White had undertaken prior to sentencing.

[39]   The level of discount to be applied for rehabilitative efforts is again very much a matter for the discretion of the sentencing Judge. In the present case Ms White was appearing for sentence on several dishonesty offences in circumstances where she has numerous convictions for similar offending in the past. These have resulted in her receiving sentences of home detention, imprisonment and, more recently, intensive

13 At [29].

supervision. None of these appears to have had any effect because Ms White has continued to offend.

[40]   To obtain a discount to reflect rehabilitative efforts she would therefore need to point to efforts she had undertaken to address the underlying causes of her offending. As the Judge rightly pointed out, the courses she had undertaken prior to sentencing did not fall within that description. The Judge was therefore entitled to give Ms White limited credit for these.

Conclusion

[41]   The only errors I have identified in the sentencing process are the failure to apply a discount to reflect time spent on EM bail and the level of uplift applied to reflect the theft charges other than that relating to the gold bracelet. If these are corrected the overall starting point reduces to three years one month imprisonment. The end sentence after taking into account mitigating factors reduces to two years five months’ imprisonment.14 This is five months less than the sentence the Judge imposed.

Result

[42]   The appeal against sentence is allowed. The sentence imposed on the robbery charge is set aside and a sentence of two years five months is substituted. The sentences imposed on the robbery charge and the charge of stealing the gold bracelet are set aside. In their place, concurrent sentences of two years five months imprisonment are substituted.

Lang J

14 Contrary to the approach taken by the Judge, I apply the 25 per cent discounts for guilty pleas and rehabilitative efforts to the overall starting point of 37 months imprisonment prior to adding uplifts to reflect aggravating factors personal to Ms White: Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46]-[47].