TE AHO v NEW ZEALAND POLICE [2023] NZHC 1056

TE AHO v NEW ZEALAND POLICE [2023] NZHC 1056 [5 May 2023]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2023-441-03[2023] NZHC 1056BETWEEN ROMA LADY MANUEL-TE AHOAppellantAND NEW ZEALAND POLICERespondentHearing: 28 April 2023Counsel: E J Forster for AppellantA V Bryant for RespondentJudgment: 5 May 2023JUDGMENT OF RADICH JIntroduction[1] Ms Te Aho1 pleaded guilty to, and was convicted on, 26 charges in the NapierDistrict Court.2 The offending to which the charges relate is summarised in [5] below.1 Ms Te Aho has said that "Manuel" was a nickname she adopted in prison and that she no longerwishes for it to be used by the Court. In this decision, I refer to the appellant just as Ms Te Aho.2 Three counts of burglary (Crimes Act 1961, s 231(1)(a)); unlawfully in an enclosed yard(Summary Offences Act 1981, s 29(1)(b); three counts of using a card for pecuniary advantage(Crimes Act, s 228(1)(b)); two counts of theft over $1,000 (Crimes Act, ss 219 and 223(b)); theftbetween $500 and $1,000 (Crimes Act, ss 219 and 223(c)); five counts of theft under $500 (CrimesAct, ss 219 and 223(d); two counts of unlawfully taking a motor vehicle (Crimes Act, s 226(1));three counts of unlawfully entering a motor vehicle (Crimes Act, s 226(2)); three counts of drivingwhile disqualified (Land Transport Act 1998, s 32); giving false information as to identity of driver(Land Transport Act, ss 52 and 114); two counts of breach bail (Bail Act 2000, s 38(a)); breach ofcourt release conditions (Sentencing Act 2002, s 96(1)).[2] On 24 February 2023, Ms Te Aho was sentenced by Judge Collins in theDistrict Court to three years' imprisonment. In addition, her outstanding fines of$15,273.40 were remitted and she was disqualified from driving for six months.3[3] Ms Te Aho has appealed from her sentence of three years' imprisonment ontwo primary grounds:(a) that the District Court Judge erred in his approach to sentencingbecause, for a set of dishonesty-related offences, he applied a discretesentence of 36 months and added it, cumulatively, to the starting point(and uplifts) he had set for the leading offence rather than simplyapplying uplifts for those dishonesty-related offences to the startingpoint for the leading offence; and(b) that, however assessed, the 36-month increase to the starting point (anduplifts) for the dishonesty-related offences was excessive.[4] The Crown's position is that the sentencing approach was appropriate, that theconcurrent sentences imposed were consistent with the totality of the offending andthat the end sentence was not manifestly excessive.Summary of offending[5] The offending took place between 24 November 2021 and 16 September 2022.Very much by way of summary, it can be described as follows:(a) 24 November 2021 – theft under $500.4 Ms Te Aho stole several itemsfrom Countdown supermarket in Hastings.(b) 24 March 2022 – breach of court release conditions.5 When releasedfrom prison on 18 March 2022, Ms Te Aho breached the conditions ofher release.3 Police v Manuel-Te Aho [2023] NZDC 3578.4 Crimes Act, ss 219 and 223(d).5 Sentencing Act, s 96(1).(c) 11 April 2022 – driving while disqualified.6 Ms Te Aho was stoppedby Police on Wainui Road in Gisborne and was found to have beendriving while disqualified.(d) 25 April 2022 – theft over $1,000.7 Ms Te Aho stole 49 items ofclothing valued at $2,463 from Rebel Sport in Hastings.(e) 26 May 2022 – theft under $500.8 Ms Te Aho stole several furtheritems, to a value of $309.96, from Rebel Sport in Hastings.(f) 30 May 2022 – unlawfully entering a motor vehicle.9 Ms Te Aho stolea vehicle in Havelock North, caused damage to it and abandoned it.(g) 11 June 2022 – using a card for pecuniary advantage.10 Someone stole,from a vehicle parked in a private driveway in Hastings, a walletcontaining credit cards and Ms Te Aho then made purchases with thosecards totalling $2,500.(h) 13 June 2022 – failing to attend District Court on bail.11 Ms Te Ahowas released on bail on 23 May 2022 and failed to appear in the DistrictCourt at Gisborne as required.(i) 14 June 2022 – using a card for pecuniary advantage.12 Someone brokeinto a car, stole a wallet including bank cards, and Ms Te Aho then usedthose cards to make purchases totalling $3,623.34.(j) 19 June 2022 – theft under $500.13 Ms Te Aho stole chocolate barsfrom a BP service station.6 Land Transport Act, s 32(1)(a) and (3).7 Crimes Act, ss 219 and 223(b).8 Sections 219 and 223(d).9 Section 226(2).10 Section 228(1)(b).11 Bail Act, s 38(a).12 Crimes Act, s 228(1)(b).13 Sections 291 and 223(d).(k) 24 June 2022 – using a card for pecuniary advantage,14 and theftbetween $500 and $1,000.15 Someone broke into a car, stole a handbagcontaining credit cards and then Ms Te Aho used one of those cards tomake purchases totalling $1,429. Later that day, she stole items valuedat $800 from Rebel Sport in Napier.(l) 25 June 2022 – unlawfully entering a motor vehicle,16 and drivingwhile disqualified.17 Someone stole a vehicle, Ms Te Aho drove itwhile disqualified and ran away from the Police officers who had pulledher over.(m) 28 June 2022 – burglary.18 Ms Te Aho took a set of car keys frombehind a counter at a restaurant and then used them to take the vehiclewhich belonged to a worker at the restaurant.(n) 6 July 2022 – failing to attend District Court bail.19 Having beenreleased on bail, Ms Te Aho failed to appear in the District Court atGisborne on 6 July 2022 as specified in her bail notice.(o) 25 July 2022 – unlawfully taking a motor vehicle.20 Ms Te Aho stole avehicle that was parked in the carpark of a Hastings business.(p) 7 August 2022 – unlawfully entering a motor vehicle,21 and burglary.22Someone entered a parked car in Flaxmere, stole the car keys andcigarettes and then, later, Ms Te Aho went to the address and stole thecar, abandoning it when it ran out of petrol. Later that day, she brokeinto the side room of a shed in a work yard, took sets of keys for14 Crimes Act, s 228(1)(b).15 Sections 219 and 223(c).16 Section 226(2).17 Land Transport Act, s 32(1)(a) and (3).18 Crimes Act, s 231(1)(a).19 Bail Act, s 38(a).20 Crimes Act, s 226(1).21 Section 226(2).22 Section 231(1)(a).earthmoving machinery and trucks and then tried to break into othersheds on the site.(q) 8 August 2022 – unlawfully entering an enclosed yard.23 Ms Te Ahoentered an enclosed yard and surveyed the yard before leaving.(r) 26 August 2022 – theft over $1,000,24 and theft under $500.25Ms Te Aho endeavoured to steal a television from The Warehouse inHastings and then, later that day, stole a box of chocolate bars from aCaltex service station in Hastings.(s) 1 September 2022 – burglary.26 Ms Te Aho entered a house inFlaxmere by forcing open a bedroom window. She uplifted multipleelectronic items, jewellery and clothing. When the victim returned tothe address, Ms Te Aho jumped out of the house from a bedroomwindow, encountering the victim's daughter. While holding the itemstaken, she told the daughter "sorry, it's for me and my boyfriend" andran down the street.(t) 5 September 2022 – unlawfully taking a motor vehicle,27 and theftunder $500.28 Ms Te Aho drove a person known to her, in that person'scar, to a supermarket. Telling the victim that she would wait for her inthe carpark, she, instead, drove off. She then filled the car with petroland left without paying. The car was not recovered.(u) 16 September 2022 – driving while disqualified,29 and giving falseinformation as to identity.30 Ms Te Aho was driving a motor vehicle inthe Taupō area without a licence and then, when stopped, gave falseinformation about her identity.23 Summary Offences Act 1981, s 29(1)(b).24 Crimes Act, ss 219 and 223(b).25 Sections 219 and 223(d).26 Section 231(1)(a).27 Section 226(1).28 Sections 219 and 223(d).29 Land Transport Act, s 32(1)(a) and (3).30 Sections 52A(1)(c), (2) and 114(3)(b).Conviction history and personal circumstances[6] Ms Te Aho is 27 years old. She has a 17-page list of previous convictions andbail history. Most of her previous convictions relate to dishonesty offending –shoplifting and theft, burglary, and using a document for pecuniary advantage. Shehas six previous convictions for driving-related offending and a significant history ofbreaching bail and court release conditions. She has committed over 100 offenceswhile on bail for other offending, has 10 breaches of court release conditions and 13breach of bail offences. The sentences Ms Te Aho received for her offending rangefrom orders for reparation and social welfare supervision in the Youth Court to shortterms of imprisonment with standard and special release conditions.31[7] The writer of a report under s 27 of the Sentencing Act 2002 believed there tobe a "demonstrative nexus between Ms Te Aho [sic] background and her offending,which mitigates her moral culpability ". The writer concluded:[3.36] Ms Te Aho has suffered profoundly intertwined social and culturaldeprivation. She displays the symptoms of systematic deprivation such asfamilial instability, intergenerational whānau violence, physical andpsychological abuse; exposure to alcohol and drugs; resulting in chronicaddiction; loss and abandonment as a child and with her children,Intergenerational State care involvement, gang exposure due to her father,whānau, ex-partner and location; cultural and social dislocation anddisconnection; diminished educational opportunities, unstable employment,food, material and housing poverty; early entry into the Justice system andcontinuing harmful effects of colonisation. [8] The report refers to Ms Te Aho having limited proficiency in te reo Māori andconnectedness to te ao Māori, but with an increasing connection through prison-delivered programmes. Ms Te Aho reported that she did well at school but wasexpelled because she bullied other children and was using drugs.[9] Ms Te Aho has experienced familial instability, hardship and drug use. Sheself-reports having "lived poverty" and needing to offend to survive. Her mother lefther father because of his drug use. Her father introduced Ms Te Aho tomethamphetamine at around the age of 13. Ms Te Aho described her father as beingemotionally abusive. Her most traumatic period was, she said, with her ex-partner31 Her longest sentence was one of intensive supervision for one year and eight months.who was "patched with the Mongrel Mob, violent, unfaithful, an extreme manipulatorand the most horrible, mentally abusive person you could ever meet". She said thatthis emotional abuse would make her turn to drugs and offend. However, the reportwriter has said that Ms Te Aho has developed insight into her past and that she wouldlike to be supported into making changes.[10] Ms Te Aho has siblings who were separated when her mother lost them to whatwas then Child, Youth and Family. She is hopeful that she can maintain a relationshipwith her children who are living with friends. She describes a good relationship withher children but "not good enough". They are, she says, the people who make herwant to "change [her] life around". She has not had stable employment since "handyjobs" and working at McDonalds 10 years ago.[11] In a letter to the sentencing Judge, Ms Te Aho describes being "fully andgenuinely remorseful to [the] victims and businesses that have been affected by [her]poor choice of actions". She said that she accepts responsibility for her actions andthe consequences of those actions.Judge's decision[12] The Judge reasoned his way to his decision to impose an end sentence of threeyears' imprisonment through a series of sequential steps:(a) He took the residential burglary charge on 1 September 2022 as the leadoffence. For this charge, he noted, as aggravating factors, theinvolvement of, and confrontation with, a child, the taking of high-value items, the premeditation involved and the fact that it wascommitted while on bail.32 He set a starting point of 20 months'imprisonment.33(b) An uplift of four months was applied for Ms Te Aho's previousburglary convictions.3432 Police v Manuel-Te Aho, above n 3, at [4].33 At [4].34 At [5].(c) An uplift of six months was then applied for the other two burglaries.35(d) An uplift of three months was added for the offending committed whileMs Te Aho was on bail for previous offending.36(e) The Judge then considered what the "starting points" for otherdishonesty-related offending would be if taken on their own. He saidthat:(i) the fraudulent use of documents charges would attract startingpoints of 12 months' imprisonment as multiple victims wereinvolved;37(ii) the charges of theft – those over $1,000 – would attract startingpoints of 12 months' imprisonment;(iii) the charges relating to unlawfully taking motor vehicles wouldjustify a starting point of 12 months' imprisonment given, inparticular, the serious breach of trust that was involved in theoffending described in [5(t)] above.(f) Having uplifted the lead offending by each of these "starting points",the Judge then added a further six month uplift for all other offending– driving while disqualified, unlawfully getting into motor vehicles,lesser thefts, failing to answer bail and breach of release conditions.38This brought the adjusted starting point to six years and three months.(g) The Judge then reduced the six year and three month period to fiveyears on a totality basis.3935 At [6].36 At [7].37 At [9].38 At [11].39 At [11]–[12].(h) Ms Te Aho was then credited with a discount of 20 per cent for herguilty plea and with a "substantial discount" of 20 per cent for thepersonal factors identified in the s 27 report.40 That produced an endsentence of three years' imprisonment.[13] Having done that, the Judge said that he was imposing that three year sentenceon the charge of burglary committed on 1 September 2022 and that "all other terms ofimprisonment are concurrent".41 He recorded the concurrent sentences as follows:(a) unlawfully entering an enclosed yard – one month;(b) three charges of fraudulently using a document, one year each;(c) two charges of theft over $1,000, one year;(d) one theft between $500 and $1,000, three months;(e) five charges of theft under $500, one month;(f) two charges of unlawfully taking a motor vehicle, one year;(g) three charges of unlawfully entering a motor vehicle, three months;(h) three charges of driving while disqualified, one month;(i) giving false information, convicted and discharged; and(j) two charges of failing to answer District Court bail, one month each.[14] The Judge said that he was not inclined to consider the year Ms Te Aho hadspent remanded in custody as time served, given the number of offences involved andthe seriousness of the offending.42 He declined to order reparation for the victims and40 At [13]–[14].41 At [17]–[18].42 At [16].he remitted $15,273.40 of fines because Ms Te Aho had no ability to pay them.Finally, he disqualified Ms Te Aho from driving for six months.43Legal principlesApproach to appeal[15] Under s 250 of the Criminal Procedure Act 2011, the appeal court must allowthe appeal if satisfied that for any reason there is an error in the sentence imposed onconviction and a different sentence should be imposed. It is only appropriate for thisCourt to intervene and substitute its own views if the sentence being appealed is"manifestly excessive" and not justified by the relevant sentencing principles.Although s 250 does not refer to "manifestly excessive", it is a principle that iswell-established in the Court's approach to sentence appeals. The Court cannot"tinker" with an end sentence if it is within range; the focus is on the end sentencerather than the process by which it was reached.44[16] If the Court allows an appeal, it must:(a) set aside the sentence and impose another sentence (whether more orless severe) that it considers appropriate; or(b) vary the sentence, vary any part of the sentence, or vary any conditionof the sentence; or(c) remit the sentence to the court that imposed it and direct that court totake any action of a kind described in paragraph (a) or (b) as specifiedby the first appeal court.Approach to sentence[17] Calculating an appropriate sentence is a two-stage process.45 The sentencingJudge must, first, fix the starting point for the offending, which includes identifyingthe aggravating and mitigating factors of the offending to arrive at an appropriate termof imprisonment.46 Where sentences are being imposed for more than one offence,the Judge must determine whether the sentences will be served concurrently or43 At [29]–[30].44 Ripia v R [2011] NZCA 101 at [15]; and R v Boyd (2004) 21 CRNZ 169 at [38].45 Moses v R [2020] NZCA 296 at [46].46 Sentencing Act, s 9.cumulatively in terms of s 84 of the Sentencing Act. Under that provision, cumulativesentences are generally appropriate if the offences for which an offender is beingsentenced are different in kind, whether or not they are a connected series of offences,while concurrent sentences are generally appropriate if the offences are of a similarkind and are a connected series of offences.[18] Whether the sentencing Judge imposes sentences cumulatively or concurrently,the total sentence must then be proportionate to the overall offending. Section 85 ofthe Sentencing Act provides for this principle in reflecting, very much by way ofsummary, that, if the Court is considering imposing sentences of imprisonment for twoor more offences, the individual sentences must reflect the seriousness of each offence.Under that provision, if cumulative sentences are imposed, they must not result in atotal period of imprisonment that is out of proportion to the gravity of the overalloffending. If only concurrent sentences are to be imposed, then the most seriousoffence must receive the penalty that is appropriate for the totality of the offendingand each of the lesser offences must receive the penalty appropriate to that offence.[19] The second stage then requires the Judge to take into account any personalcircumstances of the offender that are relevant, including guilty pleas, and todetermine whether the starting point should then be adjusted. All second stage upliftsand discounts are to be fixed by reference to the adjusted starting point.47[20] With these principles in mind, the overriding consideration will always be thepurposes and principles of sentencing contained in ss 7 and 8 of the Sentencing Act.Issues[21] The issues raised on appeal are whether:(a) the District Court Judge erred in his approach to sentencing to such anextent that correction to the end sentence is warranted; and47 Moses v R, above n 45, at [47].(b) in any event, the uplifts for some of the dishonesty offending were toohigh.The sentencing approach[22] Mr Forster, for the appellant, focuses on that part of the Judge's approach tosentencing that is described in paragraph [12(e)] above. It is said that this step in theJudge's approach resulted in him applying, erroneously, a 36-month cumulativesentence on top of the starting point for the lead offending already identified – and theuplifts on that lead offending – when, instead, more modest uplifts should have beenapplied. While the appellant accepts that the effect of this approach was amelioratedin part by the nine-month reduction for totality, it was said that the approach that wastaken was at odds with s 84 of the Sentencing Act.[23] The appellant sees the decision of Gendall J in Hepburn v Police as being onpoint.48 In that case, the appellant was sentenced to six years' imprisonment anddisqualified from driving for five years and six months on 81 charges of dishonestyand driving-related offending. Gendall J accepted that the offending represented adrug-fuelled three-month spree that warranted a concurrent approach.49 In that case,the District Court Judge had grouped the offending on the basis of maximum penaltiesfor each group and had used a cumulative sentence approach. Gendall J found that,while it was open to the District Court Judge to adopt cumulative sentences for someof the offending, the overall sentence arrived at was, to an extent, contrary to theprinciple of totality. His Honour found that the appropriate way to approach thesentencing exercise was to adopt the dishonesty charges as the lead charges and thenapply uplifts for the related driving offending and less serious charges.50[24] I accept that concurrent sentences were appropriate for this offending. Theoffending for which Ms Te Aho was being sentenced was all of a similar kind and was,in many ways, a connected series of offences.51 While they occurred over an eight-month period, the overall nature of the offending was in the nature of a "spree"48 Hepburn v Police [2023] NZHC 475.49 At [24].50 At [26] and [27].51 Sentencing Act, s 84(2).following Ms Te Aho's release from prison on bail. Even the driving offending wasconnected to the dishonesty offending.52[25] I accept the submission for the Crown that the Judge did in fact adopt aconcurrent approach. At the point in the sentencing decision that is described inparagraph [12(e)] above, the Judge said that he was "looking at those other charges ifthey stood on their own".53 At first glance, it does appear that the Judge might havebeen grouping this offending and applying a separate 36-month cumulative sentence.But the Judge's concluding remarks better explain his approach. He said that thesentence of three years was imposed on the lead burglary charge and that "all otherterms of imprisonment are concurrent, that is it means they are served at the sametime."54 Then he went on to impose concurrent sentences for all of the other offending.[26] The approach is consistent with that in Hepburn and Anderson v R.55 I find noerror in the sentencing Judge's approach which would require a departure from theprinciple that the focus in sentence appeals is on the end sentence unless there is afundamental error in need of correction.56 The real issue is whether the uplifts for theoffending that was considered at the step described in paragraph [12(e)] above weremanifestly excessive to the extent that the end sentence did not reflect the totality ofthe offending. I turn to that issue now.Uplifts for further offending[27] The appellant submits that the 36-month uplift applied by the District CourtJudge for the other dishonesty-related offending should have been in the range of sixto 12 months. The 36-month uplift was structured as follows:(a) on three counts of fraudulently using documents, 12 months;(b) on two counts of theft over $1,000, 12 months; and52 Section 84(3).53 Police v Manuel-Te Aho above n 3, at [9].54 At [17] and [18].55 Anderson v R [2017] NZCA 91; and Hepburn v Police, above n 48.56 For example, an arithmetical error. See Tutakangahau v R [2014] NZCA 279 at [36]. See alsoR v Shipton [2007] 2 NZLR 218 (CA) at [138]–[190], for the approach to appeal.(c) on two counts of unlawfully taking a motor vehicle, 12 months.[28] I look now at each of those uplifts:(a) The two charges of taking a motor vehicle involved an element ofpremeditation and, in the case of the theft from a person known toMs Te Aho, a breach of trust. The presence of a significant aggravatingfeature (or aggravating features) for this offending would justify astarting point of 18 months for a single unlawful taking charge.57(b) The two counts of theft over $1,000 for shoplifting clothes from RebelSport to the value of $2,463 and stealing a TV from The Warehousevalued at $1,399 involved elements of deception or premeditation.58Ms Te Aho has around 50 previous convictions for theft or shoplifting.In cases referred to by counsel for the respondent that involved onetheft to a similar monetary value as is the case here, starting points ofeight and 12 months were adopted.59(c) The offending which gave rise to charges of using a document forpecuniary advantage was aggravated by the determined use of the cardswithin a short space of time and by the relatively significant value ofthe transaction: for the 10 June offending, $2,500; the 14 Juneoffending, $3,623.34; and for the 24 June offending, an attempted useto the value of $1,429. Ms Te Aho has nine previous convictions forthis type of offending.6057 The sentencing Judge referred to Mucalo-Connolly v Police [2021] NZHC 3476. See that decisionat [10]–[11].58 Ms Te Aho scanned a $1 packet of soup in an attempt to make it appear that she was scanning theTV.59 In Davies v Police [2019] NZHC 3081, the High Court on appeal adopted a starting point of eightmonths' imprisonment for the lead charge of theft over $1,000 where the stolen good was worth$1,388.20; and in Wilson v Police [2021] NZHC 198, the High Court imposed a starting point of12 months' imprisonment for the theft of carpet cleaner worth $4,000.22.60 In Horrell v Police [2016] NZHC 820, the appellant obtained a debit card from the victim's homeand used it to obtain over $600 through four transactions, resulting in six charges of dishonestytaking and using documents to obtain a pecuniary advantage. On appeal the High Court imposeda starting point of six months' imprisonment. In Palmer v Police HC Rotorua CRI-2009-463-82,4 November 2009, a starting point of nine months' imprisonment was imposed on appeal wherethe appellant and his partner used a debit card belonging to an elderly woman to withdraw a totalof $10,200 over five days. In Doctor v Police [2017] NZHC 1084, the appellant stole several pay[29] This is where the totality principle comes into play. The principle works toprevent grossly disproportionate sentences and can entail a reduction in the startingpoint that would have been adopted had the offending stood alone. Given that each ofthe three sets of dishonesty offending identified in paragraph [12(e)] above couldreasonably have attracted 12-month starting points if the offending stood alone, acombined uplift of 36 months sits uncomfortably with the totality principle. In effect,taken together with the additional six-month uplift described in paragraph [12(f)]above, the 36-month uplift for these seven more minor offences is a 145 per centincrease on the 33 months given for all three burglaries (and uplifted with aggravatingfactors personal to the offender), as described in paragraph [12(a) to (d)] above.[30] I accept that, on this basis, the uplifts applied by the District Court Judge areout of proportion with the starting point for the lead offending and that, rather, acombined uplift of 15 to 20 months for the remainder of the offending described inparagraph [12 (e) and (f)] above was appropriate. This would have produced anadjusted starting point of 53 months, or four years and five months, and an endsentence of two years and eight months.[31] However, the sentencing Judge did in fact consider the totality principle. Hedid so at the point in his sentencing sequence that is described in paragraph [12(g)]above. He reduced the starting point he had applied to one of five years. The Courtof Appeal has emphasised that, in sentencing for multiple offences, the central issue isthe appropriate total sentence for the charges that have been proven.61 The way inwhich the sentence is constructed is a matter for individual discretion andassessment.62wave cards and made purchases (total sum not clear). He pleaded guilty to six charges of using adocument for pecuniary advantage, two charges of theft (one for good valued over $1,999 and onefor goods under $500). A starting point of 12 months' imprisonment was considered appropriate.61 R v Xie [2007] 2 NZLR 240 (CA) at [16], quoting R v Williams CA91/00, 31 May 2000 at [11].Counsel for the appellant expressed some concern with the decision in Xie as the case is a littledated. He thought it might still apply to a disconnected series of offences. The overall principleremains relevant in circumstances where, as discussed above, the approach to sentencing waswithout error. But the Judge applied the totality principle at a later stage in the process.62 R v Hassan [1999] 1 NZLR 14, (1998) 16 CRNZ 18 (CA) at 16, 20; and R v MacCulloch [2005]2 NZLR 665, (2004) 21 CRNZ 268 (CA) at [67] and [68].[32] But is the Judge's sentence of three years within range, having regard to thesentence of two years and eight months I would have imposed? Would interferenceover the four-month difference amount to judicial tinkering? I do not think it would.In Henderson v Police, Mallon J found, in the case of a term of imprisonment imposedby the District Court of two years and six months, that a four-month reduction (toreflect the approach preferred on appeal) went beyond tinkering.63Result[33] The appeal is allowed. The sentence of three years' imprisonment for thecharge of burglary committed on 1 September 2022 (CRN 4284) is quashed. Asentence of two years and eight months is substituted. The concurrent sentences onthe other charges remain.______________________Radich JSolicitors/Counsel:E J Forster, Hastings for AppellantCrown Solicitor, Napier for Respondent63 Henderson v Police [2021] NZHC 78 at [30]. Compare Haereroa v R [2020] NZCA 169 at [33]where it was found that an adjustment of between one and two months on a sentence of four yearsand six months' imprisonment was not such as to warrant intervention. See also Cobham v R[2021] NZHC 1066 at [38] where a percentage approach was taken.