Yu v New Zealand Customs Service
[2025] NZHC 2108
•30 July 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2025-409-107 [2025] NZHC 2108
BETWEEN ZIJING YU
Appellant
AND NEW ZEALAND CUSTOMS SERVICE
Respondent
Hearing: 26 June 2025
Appearances: C D Eason and J D N MacLeod for Appellant O J Welsh for Respondent
Judgment: 30 July 2025
JUDGMENT OF EATON J
(appeal against sentence)
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
YU v NEW ZEALAND CUSTOMS SERVICE [2025] NZHC 2108 [30 July 2025]
Introduction
[1] Zijung Yu pleaded guilty to one charge of burglary,1 three charges of defrauding Customs in breach of the Customs and Excise Act 20182 and nine related charges under that Act3 (two of which are fineable only).4 On 16 April 2025 he was sentenced by Judge M Callaghan to three years and four months’ imprisonment.5 Mr Yu appeals that sentence on the ground that the starting points adopted by the Judge were too high, giving rise to a manifestly excessive sentence.
Facts
[2] The facts are comprehensively provided in the District Court decision. I set out below extracts from the Judge’s summary of the facts:
[2] These charges are the result of an operation called Shorthand. Operation Shorthand was a New Zealand Customs Service (“Customs”) investigation into the unlawful access of a Customs Control Area, the removal of goods subject to Customs control, and the subsequent possession and revenue defraud by you. The relevant goods in this case are primarily tobacco and tobacco products.
[3] You are 42 years of age, a New Zealand citizen and the director of multiple businesses, including two: (1) Haz Cars Limited and the other Water Way Imports Limited.
[4] You were initially importing tobacco and tobacco products, and concealing this through your businesses. You intentionally avoided the payment of duties and taxes associated with the importation of the goods. Your offending was discovered when you committed a burglary of a Customs Controlled Area where your undeclared tobacco shipments were being held pending clearance. Neither you, nor any of [the] businesses, hold a permit to import tobacco.
…
[7] On 7 June 2024, Water Way imported, by sea, a consignment declared to contain lemon and oolong tea drinks. This import was invoiced as containing 31 cartons in total, with 905 individual drinks. The net volume of this shipment was declared as 252.5 litres.
…
1 Crimes Act 1961, s 231(a); maximum penalty 10 years’ imprisonment.
2 Customs and Excise Act 2018, s 371(1)(a) and (e) and 4(a); maximum penalty five years’ imprisonment or $20,000 fine.
3 Sections 68(1) and (3)(a), 86(1)(a) and (3)(a), 364(4)(a) and (5)(a), 372(1) and (3)(a), 389(1)(a) and (2)(a); maximum penalty six months’ imprisonment or $20,000 fine.
4 Section 86(1)(a) and (2)(a), and s 359(1)(b) and (2)(a); maximum penalty $5000 fine.
5 New Zealand Customs Service v Yu [2025] NZDC 9174.
[12] Following the container’s arrival into the Lyttleton Port, it was delivered to Poseidon NZ Imports and Logistics, located in 11 Ballarat Way in Wigram, Christchurch. Poseidon is an approved Customs Controlled Area. The container contained the consignments from both Water Way and Haz Cars. Imported freight is stored at this location until cleared by Customs, at which point it may be collected or delivered, or ultimately removed from the facility.
[13] In accordance with regular practices, Poseidon staff devanned the container and placed the contents on pallets in the warehouse. These were being stored until clearance had been obtained by Customs, which is required before any delivery or uplift can occur by the importer; in this case you.
[14] At 10:39 am on Friday 14 June 2024, you arrived at Poseidon to collect the consignment that you had imported to New Zealand by sea for Water Way. You were advised by staff that you would be contacted once [your] goods had been cleared by Customs, and only then would you be able to collect them. You left the premises.
[15] About 15 minutes later you returned to the premises. You did not approach any of the staff. Instead, walked around the warehouse and took photographs of different areas of the facility. At 11:04 am, you were asked to leave the premises by the Poseidon staff.
[16] At about 11:33 pm on 16 June 2024, you used a grinder to cut a hole in the roller door at Poseidon, gaining unauthorised access to the premises. The hole that you cut allowed you to reach through and press a button which moved the roller door up, giving you access to the warehouse.
[17] You reversed a hatchback vehicle with roof racks into the warehouse, and placed the items from your Water Way consignment into the boot of the vehicle. You also took other items from other pallets in the warehouse, which were not imported by you. These items have not been recovered. You did not take any goods from the Haz Cars import.
….
[21] The Haz Cars consignment, which you left when you burgled the Poseidon premises, was subsequently subject to a full examination by Customs on 17 June 2024, and found to contain 500,000 empty cigarette filter tubes.
[22] On Wednesday 19 June 2024, Police visited you at [your] storage unit in relation to your import being the subject of a burglary. You advised [the] police that you were at your place of work on 16 June 2024, and went home to bed around midnight. Police asked if you were making cigarettes in your unit, to which [you said] you were not, as you knew it was illegal. Prior to obtaining a statement, police observed two pillow-sized mounds of tobacco drying in the storage unit.
[23] On 20 June 2024, police and Customs executed search warrants at your home and at your storage unit. You were not present at either address.
[24] The search of your storage unit located a Makita angle grinder, various other tools such as a crowbar, labels and a packaging conveyer belt, a pressure
machine, grinding machines, various dryers, and loose tobacco located in both dryers, in the warehouse, on the conveyer belts, and on the grinders.
[25] CCTV footage obtained from the area from the early morning of the burglary identified you arriving at your storage unit in a hatchback vehicle with roof racks. You were subsequently seen removing the number plates from the vehicle.
…
[27] You later phoned the police and advised that you would engage in an interview with them.
[28] On 24 June 2024, Customs invoked a search of an address at which you, in your interview, said you stored the tobacco you stole from Poseidon. Located at that three-bedroom house were:
(a)large volumes of storage tubs, each filled with individual, ready for sale tobacco pouches containing loose tobacco;
(b)large volumes of storage tubs filled with loose tobacco;
(c)large volumes of cardboard boxes with Chinese script on the side and your nickname “Yuri” handwritten on some, each filled with packets of cigarettes ready for sale and onward distribution;
(d)there were four large scale cigarette production machines which are used to inject tobacco into cigarette filters and produce a complete cigarette;
(e)large volumes of consignments which have been sent to New Zealand from overseas. Each consignment contained loose tobacco vacuum sealed inside packaging used for tea leaves;
(f)black plastic rubbish bags filled with loose dried tobacco;
(g)large volumes of empty cigarette filter tubes; and
(h)large volumes of empty “Bahhman” branded tailor-made cigarette boxes.
[29] The final weights and itemisation by Customs of the seized goods that form the basis for the charges relating to defrauding Customs revenue are:
(a)423,100 grams of tobacco; and
(b)16,486 cigarettes.
…
[30] On 29 July 2024 – this is the second importation – Water Way imported another sea cargo shipment, again declared to contain lemon and oolong tea drinks. This import was invoiced as 94 cartons in total, with 1,360
individual drinks contained within. The net volume of this shipment was declared as 355 litres. The value of the goods declared was $878.
[31] On 5 August 2024, this shipment was devanned at Poseidon and transported to the New Zealand Customs Inspection Facility. On 6 August 2024, the shipment was examined by Customs and found to contain 317,820 grams of loose tobacco concealed within vacuum-sealed loose tea leaf packaging. The concealment in this manner was identical to that seen with the 7 June import by Water Way.
[32]In addition to the loose tobacco, 9,000 cigarettes were also located.
[33] The revenue evaded on this importation was $655,874.17 for the loose tobacco and $13,309.27 for the cigarettes.
Summary
[34] The grand total of defrauded Customs revenue by you over all shipments and domestically located goods is $1,566,699.93.
[35] The total weight of your illegal tobacco importation is approximately 740,920 grams of tobacco, and 25,486 cigarettes.
District Court Decision
[3] Having set out the charges and facts in full, the Judge observed that both counsel for the New Zealand Customs Service (Customs) and the appellant had submitted that the most appropriate approach was for the court to treat the three Customs revenue frauds as the lead offences, to apply an uplift for the burglary, and a further uplift to reflect the balance of the Customs charges. The Judge recorded that Ms Welsh for Customs proposed a starting point of three years for the revenue fraud, an uplift of 12 to 18 months for the burglary and a further uplift of six to nine months for the balance of the charges. Mr Eason for the appellant had proposed a global starting point of around two years’ and nine months’ imprisonment.
[4] The Judge took a quite different approach, taking the burglary as the lead offence and a starting point of five years’ imprisonment. A cumulative starting point of three years was applied for the fraud offending and a further cumulative three months for the balance of the offending, giving rise to an overall starting point of eight years and three months’ imprisonment. The Judge then allowed a totality deduction, reducing the starting point to one of six years and nine months’ imprisonment.
[5] The Judge found the burglary was highly planned and premeditated, observing that it was committed in furtherance of other offending. The nature of the burgled premises was a significant aggravating factor. The premises was described as a Customs controlled area. The Judge referred to the public interest in Customs’ role of keeping the community and New Zealand’s biosecurity safe. He considered the burglary threatened the biosecurity safety of the community. The Judge referred to the high value of the property, ($435,000 in evaded duty) and the damage to the doors caused by the angle grinder, as further aggravating factors. Finally, in relation to the burglary, the Judge considered the “extent of the offending” to be an aggravating factor. The burglary was described as the theft of tobacco, and the Judge referred to tobacco being a drug that causes harm within the community.
[6] The Judge considered the appellant’s culpability to be on a par with the offender in Sullivan v R, where a starting point of six years’ imprisonment was adopted for seven burglaries targeting commercial premises and involving stolen property valued at around $240,000.6 Mr Sullivan’s offending was aggravated by his unlawful possession of firearms but did not target a Customs Controlled Area and did not involve what the Judge considered to be the appellant’s high level of premeditation.
[7] As regards the three charges of defrauding Customs, the Judge considered the aggravating factors to be the magnitude and sophistication of the offending, the significant loss of $1.56 million to Customs, the appellant’s motivation of greed, and the impact on the community. The Judge referred to evidence found during the search of the appellant’s premises as suggesting he had been importing tobacco since 2020. Consequently, the Judge considered the duration of the offending as an aggravating factor. The Judge adopted a starting point of three years’ imprisonment for the fraud offending.
[8] Personal mitigating factors were guilty pleas (25 per cent), previous good character (15 per cent) and remorse (10 per cent). The end sentence imposed was one of three years and four months’ imprisonment.
6 Sullivan v R [2016] NZCA 100.
Principles on appeal
[9] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only 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 As the Court of Appeal observed in Tutakangahau v R, with reference to the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.8 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.9
Submissions
Appellant’s submissions
[10] Mr Eason submits the Judge erred in treating the burglary as one involving the theft of property. He submits that the intended crime was the imprisonable offence of removing tobacco from a Customs Controlled Area, not theft. He submits that burglary cases involving intended or actual theft are more serious than the appellant’s offending. He submits this offending was novel.
[11] Mr Eason submitted the burglary was more appropriately treated as aggravating the Customs fraud, and that in taking the burglary as the lead offending, the Judge adopted a clearly excessive starting point. The appellant takes no issue with the deductions allowed for mitigating factors or the starting point adopted by the Judge on the balance of the Customs offending.
Respondent’s submissions
[12] Ms Welsh submits the end sentence reached was appropriate and reflected the overall seriousness of the offending. She says the distinction between theft and
7 Criminal Procedure Act 2011, ss 250(2) and 250(3).
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
9 Ripia v R [2011] NZCA 101 at [15].
removal of tobacco from a Customs Controlled Area is immaterial. While the tobacco was imported by the appellant, its removal from the Customs Controlled Area prior to customs clearance still constituted an unlawful taking, as the appellant had no lawful authority to uplift the products. Doing so also created various border and biosecurity risks.
[13] Although contrary to the approach advanced by the respondent in the District Court, Ms Welsh submits it was open to the Judge to take the burglary as the lead offence. She submits the methodology adopted does not impact the appropriateness of the outcome.
Analysis
[14] This appeal engages two primary issues. First, whether the Judge erred in treating the burglary as the lead offence. Secondly, whether the starting point adopted for the burglary of five years was too high and gave rise to a manifestly excessive sentence.
Approach
[15]In R v Barker the Court of Appeal confirmed:10
[I]n imposing a sentence which reflects the totality of the offending this Court will not declare a sentence manifestly excessive because of the particular way in which the sentencing Judge has chosen to construct the sentence, unless the method adopted results in a sentence which is overall clearly too high.
[16]And as the Court of Appeal observed in Te Ao v R:11
It is the end sentence which must be shown to be manifestly excessive. It is the end sentence which will be the Court’s focus. Where one component of a sentence is criticised, the Court’s inquiry, if the criticism is found justified, will be whether the end sentence is nevertheless within the range available to the sentencing Judge.
[17] The Judge elected not to adopt the approach proposed by both counsel. The approach preferred by counsel reflected that the primary offending was the illegal importation of tobacco and the avoidance of Customs duty, aggravated by the targeting
10 R v Barker CA57/01, 30 July 2001 at [12].
11 Te Ao v R [2023] NZCA 327 at [16].
of the storage facility in order to ensure the success of the illicit importation. Ms Welsh had proposed an uplift for the burglary of around 12 to 18 months.
[18] The Judge took a quite different view, regarding the burglary as the lead offence with multiple aggravating factors, giving rise to a starting point of five years’ imprisonment. It is unusual for the prosecution and the sentencing Judge to be so far apart in terms of a starting point. In my view, and as I will discuss shortly, that reflects the Judge’s findings regarding factors said to aggravate the burglary.
[19] In my view, the approach proposed by counsel in the District Court was appropriate. The appellant’s criminal objective was the illegal importation of tobacco and the avoidance of duties. The burglary was very much part and parcel of that offending and intended to affect that objective. But as the authorities recognise, the finding on appeal that the approach adopted by the Judge was flawed does not equate to a finding that the end sentence imposed was manifestly excessive. That issue is determined by an assessment of the aggravating factors and the comparative cases relied on.
Starting point for burglary
[20] The Judge identified a number of aggravating factors and placed particular emphasis on a case not referred to by counsel, Sullivan v R,12 in settling on a starting point for the burglary of five years’ imprisonment.
[21] Over a two-month period in 2013 and while on bail for an unrelated charge, Mr Sullivan had been involved in seven burglaries of commercial premises in Christchurch. Some were committed with co-offenders. The offending involved the pattern of a vehicle being stolen and used to force entry into enclosed yards with goods then being stolen, and the stolen vehicle being used for transportation. The vehicle would be abandoned. The targeted premises were damaged. The total value of the stolen property was around $240,000. Mr Sullivan was located by police, sleeping in a vehicle stolen in one of the burglaries. His cell phone revealed photographs of stolen goods. He was in possession of a knife. Inquiries led to the discovery of a storage
12 Sullivan v R, above n 9.
unit rented by Mr Sullivan described by the sentencing Judge as “an Aladdin’s Cave of burgled and stolen items”.13 Within the unit, police found two firearms and ammunition. The evidence established that Mr Sullivan had conducted some of the burglaries to fill orders. He faced a total of 16 charges being three of unlawful use of motor vehicles, seven of burglary, one of theft, one of driving while disqualified, three relating to firearms and ammunition and one relating to the possession of a knife. In addition, he faced two charges of offending from several months earlier—unlawful use of a motor vehicle and possession of a methamphetamine pipe. He pleaded guilty to some charges and was found guilty of the rest at trial.
[22] A six-year starting point was adopted for all charges in the two-month spree of offending. The aggravating factors the Court of Appeal identified in relation to the burglary were the number of burglaries, that the offending was targeted to meet specific orders, the sums involved, wanton damage inflicted during some of the burglaries and the impact on victims.
[23]That offending is quite distinct to that committed by Mr Yu. I do not consider
Sullivan to be a helpful comparator.
[24] The first aggravating factor identified by the Judge was the high degree of planning and premeditation. The Judge went so far as to refer to the appellant planning “what could be classified as the ‘perfect’ burglary”.14
[25] In my view that overstates the planning and sophistication associated with the offending. The summary of facts records that Mr Yu visited the Poseidon facility for the purpose of uplifting his imported goods. He was told they were not as yet cleared by Customs. He left the premises, returned 15 minutes later, and took photographs of the premises. He was then told to leave the premises. He returned two nights later, cut a hole in a door that allowed access to an internal button opening a rolling door and his uncleared goods. The photographs were taken to allow Mr Yu to plan the break in. I agree that was an act of planning. But he had attended the facility identifying himself as the owner of the consignment taken in the burglary and had acted
13 R v Sullivan DC Christchurch CRI-2013-009-8411, 11 December 2014 at [5].
14 New Zealand Customs Service v Yu, above n 5, at [54(a)].
suspiciously when told he could not uplift his goods. In those circumstances it was inevitable the police would consider Mr Yu a prime suspect for a burglary committed two days later. The burglary was planned and effectively carried out, but it was far from perfect.
[26] The second aggravating factor identified by the Judge was the nature of the premises targeted. The Judge described the purpose of the Poseidon facility as being to “ensure goods imported into New Zealand are properly processed, do not pose a threat to security and, comply with all necessary requirements as to declarations and duties before being cleared”.15 The Judge then described there being great public interest in Customs keeping the community and New Zealand’s biosecurity safe and that Mr Yu “threatened that”.16 In distinguishing cases involving commercial burglary, the Judge referred to the purpose of the Poseidon facility and described it as “to ensure that there is no unlawful importation of either prohibited goods, or uncustomed goods, to protect the community and the nation from potential threats and risks associated with importation, and to regulate such importations. It is also to control the financial side of importation…”.17
[27] In a minute I issued in advance of the appeal, I invited counsel to address whether the burglary posed a biosecurity threat. The summary of facts described the Poseidon facility as the site where “[i]mported freight is stored… until cleared by Customs”. In response to the minute, Mr Eason submitted the Judge wrongly considered the targeting of the burgled premises gave rise to a biosecurity risk or any other threat to the community. He submits the premises simply stored uncleared items and that there was no evidence that the area targeted by the appellant gave rise to the threat referred to by the Judge. Ms Welsh submits the Judge was not wrong to refer to a biosecurity threat. She described the facility as one licenced as a transitional facility for biosecurity purposes. She submits that although the goods were not identified as posing a biosecurity risk, the removal of the goods denied Customs the opportunity to undertake a biosecurity risk assessment.
15 At [54(b)].
16 At [54(b)].
17 At [58].
[28] In light of the description of the facilities as recorded in the summary of facts and the absence of further evidence suggesting that Mr Yu’s actions could in fact have posed any biosecurity threat, I agree with Mr Eason that such a threat was not properly categorised as an aggravating factor of the burglary. Notwithstanding, in my view, the “nature of the premises” was a significant aggravating factor. The facility stores uncleared items imported into New Zealand. Clearance will only follow a compliance investigation and payment of appropriate duties. Until such time, the importer is not lawfully entitled to possession of the goods. If, as in this case, the goods have been illegally imported, the goods themselves are evidence of the illegal importation. An analogy might be burglary committed of a police exhibits store. Offending of that nature strikes at the administration of justice. It is an attempt to circumvent lawful process and to conceal offending. Any offence committed with the intent of interfering with the administration of justice will be met by a stern approach from the Court. I am therefore satisfied that the nature of the premises targeted was a significant aggravating factor of the offending.
[29] The third aggravating factor identified by the Judge was the value of the property stolen. The Judge referred to the product stolen in the burglary equating to over $435,000 in evaded revenue. Mr Eason’s primary submission in support of the appeal is that the Judge erred in referring to “stolen” property because Mr Yu owned the goods (other than unidentified goods that went missing during the burglary) that he removed during the burglary. Ms Welsh submits that argument fails to acknowledge that Mr Yu was not entitled to take possession of the goods he had imported until those goods had been cleared by Customs. She submits Mr Yu’s culpability is no different to the commonplace burglary with intent to steal.
[30] Mr Yu committed the burglary with intent to unlawfully take permanent possession of the consignment he had illegally imported. He did so to profit from his illicit activity and to evade paying duties. I agree with Ms Welsh, Mr Yu’s culpability is analogous to an offender acting with intent to steal.
[31] The Judge observed that a further aggravating factor was that Mr Yu had caused damage to the garage door.
[32] The final aggravating factor was considered under the heading “extent of the offending”. First, the Judge observed that Mr Yu had stolen packages imported by another customer/s. Ms Welsh confirmed that customer/s had not been identified but that the goods taken were low value, quite unrelated to Mr Yu’s offending and most likely taken by mistake. Secondly, the Judge considered the offending was aggravated because tobacco is harmful to the community. The Judge referred to tobacco as a drug and considered that a large quantity importation “puts the wider community at risk”.18 Those observations reflect the earlier finding of the judge that Mr Yu’s offending involved the “illegal importation of drugs… and evasion of duties and taxes through concealment and deception…”.19
[33] I do not agree that the nature of the imported product, the target of the burglary, tobacco, aggravated the offending. Tobacco is a product that may be lawfully imported. Mr Yu faced a distinct charge of importing tobacco without a permit, reflecting the regulatory requirements of importing tobacco. For the Judge to treat the burglary as aggravated due to the nature of the product was, in my view, to double count that factor. I do not consider it was appropriate for the Judge to treat the offending as aggravated because tobacco is known to have harmful effects on the community. That observation made by the Judge, when read alongside the reference to the illegal importation of drugs, does suggest the Judge, notwithstanding an observation to the contrary, treated tobacco as a controlled drug.
Starting point for customs fraud
[34] Mr Eason does not take issue with the three-year starting point adopted by the Judge for the three charges of customs fraud. Ms Welsh supports that starting point, it was the starting point she proposed in the District Court. I agree that starting point appears to be within range having regard to the authorities.20 I nevertheless make two observations in relation to the aggravating factors identified by the Judge.
18 At [54(e)].
19 At [48].
20 New Zealand Customs Service v Brahmbhatt [2024] NZDC 22813; New Zealand Customs Service v Ng [2022] NZDC 19285; R v Chen [2022] NZDC 3596; and R v Hoong Ping Lee [2022] NZDC 12295.
[35] The Judge referred to R v Marsters where this Court held that dishonesty involving tax evasion was straightforward theft from the community21 and considered that defrauding Customs was similarly a theft from the community, affecting society as a whole. The Judge considered the fraud offending had caused significant loss to New Zealand Customs describing it as “unpaid taxes which could be used to better the community by the Government”.22 The loss was said to be approximately
$1.56 million. However, as Ms Welsh appropriately acknowledged, because the two consignments for which Mr Yu was convicted were intercepted and ultimately retained or recovered, there was no actual loss. That is in contradistinction to tax evasion where taxes properly payable to Inland Revenue are withheld and spent by the offender.
[36] A further aggravating factor identified by the Judge was the period over which the offending occurred. The Judge referred particularly to evidence located during a search of Mr Yu’s premises “suggesting” that he had been using the express mail system to import tobacco from around 2020. That led the Judge to conclude “these were by no means… one-off importations”.23 That conclusion overlooks that Mr Yu was charged with two, one-off importations. The charges were not representative. It was therefore not open to the Judge to find that the offending was prolonged and possibly dating back to 2020.
[37] Notwithstanding those errors, I am satisfied the starting point adopted by the Judge of three years’ imprisonment was within range.
Uplift for remaining charges
[38] The Judge adopted a three-month uplift for the remaining Customs charges, acknowledging that many of those offences would not, if considered alone, have attracted an end sentence of imprisonment, and that all offending was closely connected. No issue is taken with the three-month uplift on appeal.
21 R v Marsters HC Auckland CRI-2003-092-30868, 13 May 2005 at [16].
22 New Zealand Customs Service v Yu, above n 5, at [74(e)].
23 At [74(d)].
Totality
[39] The Judge allowed an 18-month (approximately 20 per cent) deduction to reflect the principle of totality, reducing the global starting point of eight years and three months’ imprisonment to one of six years and nine months’ imprisonment.
Overview of the burglary offending
[40] I have concluded that the Judge erred in identifying a number of aggravating factors and in placing weight on Sullivan v R as a useful case comparator. I am further satisfied the Judge erred in in taking the burglary as the lead offence contrary to the approach preferred by both counsel in the District Court. In my view those errors led the Judge to adopt a starting point for the burglary that was clearly too high. I consider, having particular regard to the offending undermining the administration of justice, that a standalone starting point for the burglary in the region of three years’ imprisonment was appropriate. That categorises this unusual burglary as considerably more serious than a lower-level residential burglary.24
[41] Adopting the starting points taken by the Judge for the balance of the offending gives rise to a global starting point in the region of six years and three months’ imprisonment. Given the very clear connection between all offending, I am satisfied that a sentence at that level would be wholly disproportionate to the overall gravity of the offending.25 I adopt an adjusted starting point, reflecting the totality principle, of five years and four months’ imprisonment. No issue is taken on appeal with the 50 per cent deduction applied by the Judge to recognise personal mitigating factors.
24 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.
25 Sentencing Act 2002, s 85.
Result
[42] The sentence of three years and four months’ imprisonment imposed on the charge of burglary is quashed and substituted with a sentence of two years and eight months’ imprisonment. All other sentences remain.
...................................................
Eaton J
Solicitors:
Crown Solicitors, Christchurch
Counsel:
C D Eason, Barrister, Christchurch
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