McWatt v Police - [2013] NZHC 1703

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-409-55 [2013] NZHC 1703

JASON WILLIAM MCWATT Appellant

v

NEW ZEALAND POLICE Respondent

Hearing: 4 July 2013

Appearances:

K Beaton and N A Pointer for the Appellant
M Zintl for the Respondent

Judgment:

4 July 2013

JUDGMENT OF FOGARTY J

[1] The appellant appeals against a total sentence of 2 years 3 months imprisonment and 3 years disqualification from driving, imposed in the District Court in April by Judge MacAskill. There were 10 charges, which will be set out in a schedule to this judgment, showing the charge and the sentence. As the schedule shows, the Judge treated as the most serious offending the unlawful taking of a motor vehicle on 8 December. The sentence allocates 2 year 3 months imprisonment and the 3 years disqualification against this charge.

[2] To my mind, the merit of the appeal has been the argument that the Judge did not appropriately analyse the gravity of that offending on 8 and 9 December, it took place over two days. The charge was the unlawful taking of a motor vehicle. The police summary of facts in respect of this charge says that on 8 December the defendant and his associate, Mr Lake, were at the home of David Hempstead, the
victim in this matter. At about 7.45 am on 8 December, the defendant and his

MCWATT v NEW ZEALAND POLICE [2013] NZHC 1703 [4 July 2013]

associate drove away from the victim’s address in his Volkswagen car, etc. Neither the defendant nor his associate had permission from the victim to take the motor vehicle. Then it goes on to the next offence, which was driving to a Caltex service station in Washdyke, Canterbury, and filling the vehicle with petrol, and leaving without paying. Similarly, the next day, driving to Greymouth, filling the vehicle with petrol and leaving without paying. The vehicle was stopped in Buller.

[3] What is left out of that summary is that the associate, Mr Lake, is the brother of the owner of the car, David Hempstead. The timing of the taking appears to suggest either that the defendant had stayed the night with Mr Lake and the owner of the car, David, at that home, or that the two men had come around in the morning.

[4] The Judge in his judgment does not mention the social relationship. At the very least it is clear that this is not a case of unlawful taking of a stranger’s car.

[5] I understand from Ms Beaton’s submissions that the instructions defence counsel received were that the keys to this car had been given to the appellant by Mr Lake. That the context was that the appellant may not have understood immediately that Mr Lake did not have the consent to use his brother’s car. It appears that about an hour later, after they had taken the car, after a phone call or a text from David to Mr Lake in the car, Mr Lake…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McWatt v Police

Details

AGLC: McWatt v Police [2013] NZHC 1703
Case: [2013] NZHC 1703
Decision Date: 4 July 2013

CaseChat Overview and Summary

In McWatt v Police, the appellant appealed against a sentence of two years and three months imprisonment and three years disqualification from driving, imposed by the District Court. The appellant's offences included the unlawful taking of a motor vehicle, theft of petrol, driving while disqualified, and driving with excess breath alcohol. The High Court was tasked with determining whether the District Court appropriately assessed the gravity of the appellant's offences, particularly the unlawful taking of a motor vehicle, and whether the sentence was excessive.

The court noted that the appellant and his associate took the victim's car without permission, with the appellant possibly misunderstanding the situation due to the car keys being handed to him by the associate, who was the brother of the car owner. The court considered whether the appellant had the requisite intent to commit the offence at the moment he took the car. Despite this ambiguity, the court acknowledged that the appellant continued to drive the car, solidifying the unlawful taking offence. The court highlighted that the relationship between the appellant and the car owner distinguished this case from instances where a stranger's car was taken.

The court examined the appellant's criminal history, which was extensive and included multiple car-related offences. The court concluded that the District Court's starting point of three years for imprisonment was too high and should have been closer to two years and six months, following the precedent set in Pearson v Police. The High Court adjusted the sentence to two years and three months, deducting seven months for the guilty pleas, resulting in a final sentence of one year and eleven months imprisonment for the unlawful taking of a motor vehicle. The court found the three-year driving disqualification to be appropriate given the appellant's history and age.

In summary, the High Court reduced the sentence for the unlawful taking of a motor vehicle from two years and three months to one year and eleven months, while upholding the three-year driving disqualification. The court's decision was based on a re-evaluation of the starting point for sentencing, taking into account the appellant's criminal history and the unique circumstances of the unlawful taking offence.

Orders