Cashell v R

• Jurisdiction: New Zealand
• Judge: Venning J
• Judgment Date: 21 May 2025
• Neutral Citation: [2025] NZCA 186
• Docket Number: CA488/2024
• Court: Court of Appeal

Between

Te Whetu Cashell

Appellant

and

The King

Respondent

[2025] NZCA 186

Court:

Cooke, Venning and van Bohemen JJ

CA488/2024

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Criminal Sentence — appeal against sentence for violent offending — sufficiency of discounts for youth, background, cultural and psychological factors — totality

The issue was whether the sentence was manifestly excessive.

The Court held that given number of offences C committed over a sustained period of time and the serious nature of those offences (wounding with intent to cause grievous bodily harm, aggravated robberies), the purposes of deterrence, denunciation and particularly, protection of public, were material considerations. The serious aggravated robberies occurred while C was on bail and the serious violent offending occurred while he was in custody. The end sentence was not manifestly excessive, even having full regard to C's very unfortunate background and personal circumstances (early exposure to violence and substance use, ADHD, neuro-development difficulties). The Judge's adjustment to various starting points took account of totality.

Counsel:

J Y Yi and A T W Ji for Appellant

H D L Steele for Respondent

The appeal was dismissed.

The appeal against sentence is dismissed.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Venning J)

1 Te Whetu Cashell pleaded guilty to the following charges: two charges of unlawfully using a motor vehicle; one charge of attempted unlawful taking of a motor vehicle; one charge of dangerous driving; two charges of aggravated robbery; one charge of burglary; one charge of unlawfully getting into a motor vehicle; one charge of assault with a weapon; one charge of common assault; and one charge of wounding with intent to cause grievous bodily harm.

2 The offending took place over a period of 16 months, from September 2022 to January 2024. At the time Mr Cashell was aged between 18 years, eight months and 20 years old.

3 On 2 July 2024, Judge K J Glubb sentenced Mr Cashell to nine years, two months' imprisonment for the offending. 1

4 Mr Cashell appeals against sentence. Mr Yi submits that the Judge erred by giving insufficient discount for Mr Cashell's youth, background, cultural and psychological factors, or, alternatively, erred by imposing what is effectively a crushing sentence.

Background

5 We take the summary of the offending from the Judge's comprehensive sentencing notes:

[2] The facts are that on 9 September 2022 a Subaru car was unlawfully taken over night. At about 1.20 am on 10 September you and four associates were driving on Royal Avenue in Mount Albert. You were being followed by a second vehicle, a Ford motor vehicle. You were driving the Subaru that had been unlawfully taken. Within that group while some kept look out, you smashed the left rear quarter light and gained access to a Toyota motor vehicle. The ignition was pulled from the barrel from the motor vehicle to steal it. Police arrived mid-incident and as a result you and your associates got back into your cars and fled.

[3] Still driving the Subaru, you left on Levida Road, together with the Ford, you turned left and then onto Richardson Road when a marked police unit came in behind you. Whilst your associate within the Ford maintained the normal speed, you immediately accelerated away at speed through the red light on Hendon Avenue. You went right into Stoddard Road and through the intersection of Maioro Street and then right into John Davis Road at excessive speed and through a red light.

[4] You stopped on John Davis Road and attempted to flee on foot, however, you were located by police and subsequently arrested. The Toyota car belonged to the victim and he did not give permission to anyone to enter that, nor did the owner of the Subaru.

[5] The Westfield Shopping Centre at St Lukes is a large mall and it consists of a large of number of independent businesses that operate within that centre. One of those is Stewart Dawsons. Stewart Dawsons was equipped with a closed-circuit television system which records the events. At about

5.20 pm on 20 September 2022 Stewart Dawsons had been operating as normal and staff were just starting to close up due to the hour. They were cashing up the days taking and clearing the store. You and another named young person and other unknown individuals all associated were offenders in this matter, and using items brought into the mall for your purpose, you commenced smashing the glass display cabinets and removing jewellery.

[6] Your actions were observed by members of the public who were still shopping in the mall, some of whom moved towards you to confront you. One of the offenders responded to the threat by moving menacingly towards the witnesses. Having collected items of jewellery from the store, the offenders then left and ran back through the mall heading towards the motor vehicle in which they had arrived. Members of the public gave chase confronting the group as they attempted to enter the motor vehicles, including the driver of a forklift, who briefly managed to block the car from moving.

[7] During the ensuing melee three of the offenders were left at the scene and were forced to flee on foot, while the remaining offenders departed in the motor vehicle. The vehicle was observed to be a white Toyota car which was later determined to have been unlawfully taken. That car was discovered abandoned on Taylors Road, Mount Albert.

[8] You and the named young person and the other unknown individuals stole 322 items from the store to a value of $374,305. None of that has been recovered.

[9] Between 10 pm on 21 September and 4.37 am on 22 September, a Toyota car was stolen from an address in Henderson. At about 4.37 am that day that vehicle arrived at the North West Shopping Centre situated on Fred Taylor Drive, Massey. Five individuals, which included you and a young person named, got out of the vehicle. The group smashed through the two glass entry doors and the security gate closest to the Michael Hill Jewellers. Once entry was gained in the shopping mall, they group split into two groups. Three individuals, including you, gained entry to the Michael Hill Jewellers store by pushing through the security grill and began to pry open the safes in the main area of the store.

[10] Two other individuals gained access to the Sunglass Hut where a number of pairs of sunglasses were taken from the drawer before they came to Michael Hill Jewellers to help you. The group then smashed their way through cabinetry where various jewellery items and merchandise were taken before leaving the store. The group then ran through the shopping centre towards the stolen vehicle, dropping jewellery along the way. They got back into the car and fled. Fingerprints located on the grill identified you, as it did the named young person.

[11] We do not have a value of the property taken at that time, so it is simply not available.

[12] Sometime between 6.30 am and 11.30 am on 25 September 2022, a Toyota Wish motor vehicle was taken from the roadside on Horne Street, Melville, Hamilton. The owner did not give any permission for that to be used or taken.

[13] At about 11.30 am that same day that Toyota Wish motor vehicle arrived at the northern entrance to The Base Shopping Centre in Hamilton. You got out of that vehicle with a named young person and seven other co-offenders who were all heavily disguised with face coverings. You all ran through the shopping centre brandishing various items, including hammers, crowbars, and tomahawks.

[14] The group ran into Michael Hill Jewellers situated in the Te Awa Mall. The store in question was adjacent to the food court. Being close to lunchtime on a Sunday the area was heavily populated at the time with many families and young children present.

[15] Staff and other customers inside Michael Hill Jewellers ran from the store in fear of you and your co-defendants wearing face coverings and bearing hammers and the like, and which were being used to smash the glass display cabinets. Members of the group were shouting to go away. One of the shop assistants was instructed to “move bitch, this is a ram raid.” No resistance was given by staff or security. The group then continued to smash the cabinets before taking various rings, necklaces, earrings that were stored within.

[16] Other shoppers from within the mall began to film the incident as it unfolded causing one of the members of the offending group to smash or knock the phone out of the member of the public's hands. Some shoppers uplifted chairs from the food court in an attempt to distract or stall the group. However, these efforts were unsuccessful. Some shoppers were punched and pushed to the ground by other members of the group and you were seen to run towards members of the public as if to strike them with your elbow raised before side-stepping away as the group fled.

[17] That conduct was depicted in relevant excerpts of available footage which was to have been made available for sentencing purposes, regrettably it is not available, it simply has not arrived, and I have not seen it. I can well appreciate the incident.

[18] The incident lasted for about 40 seconds, following which the group ran back through the mall to the Toyota Wish. As they fled members of the public tried to stop them, but they were assaulted and pushed out of the way. One member of the public who tried to intervene suffered substantial bruising to his right shoulder.

[19] The group got into the Toyota Wish and fled from The Base Shopping Centre at speed. You were subsequently identified as being involved from DNA and a fingerprint lift at the entrance and on your arrest on 26 September several items of jewellery and watches were seized, some of which still had price tags attached.

[20] One of your associates was also identified as involved and those proceedings have...