McWhirter v Police - [2016] NZHC 2865

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000094 [2016] NZHC 2865

BETWEEN
DYLAN CONNOR MCWHIRTER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 29 November 2016

Appearances:

K Paima for Appellant
C E Martyn and P A Norman for Crown

Judgment:

29 November 2016

JUDGMENT OF DUNNINGHAM J

Introduction

[1] At 11:40pm on 23 May 2016, the appellant, Mr McWhirter, entered the Metro Mart store on Colombo Street and proceeded to make demands for money and cigarettes, threatening the store employee with a knife. Cigarettes and money from the till were obtained, and the appellant fled the scene. He was later apprehended by police.

[2] Earlier, on 12 May 2016, the appellant had been found in possession of a stolen mountain bike worth $325 and allegedly bought by the appellant that day for
$60. The appellant had recognised that the bike was probably stolen, but acknowledged that he had turned a blind eye to that.

[3] The appellant was subsequently charged with aggravated robbery, and receiving stolen property, to which he pleaded guilty. He was sentenced by
Judge Garland on 24 August 2016 to two years nine months’ imprisonment on the

MCWHIRTER v NEW ZEALAND POLICE [2016] NZHC 2865 [29 November 2016]

charge of aggravated robbery, together with one month on the receiving charge, both sentences to be served concurrently.1

[4] The appellant appeals against his sentence on the basis that it was manifestly excessive because the Judge erred in his evaluation and assessment of the relevant personal mitigating factors.

[5] In particular, he advances the following grounds:

(a) the Judge failed to have adequate regard to the appellant’s youth, as he was only 17 at the time, and did not apply an appropriate reduction in sentence for that factor.

(b)the Judge failed to have proper regard to s 7(1)(h) of the Sentencing Act 2002 which requires a Judge to recognise the purpose of assisting in the offender’s rehabilitation and reintegration.

[6] For completeness, although the appellant argued for a lower starting point in the District Court, he quite properly concedes that the starting point was within range having regard to the appropriate tariff bands and the particular features of the offending. His appeal focuses on the adjustments the Judge made to the starting point to reflect the above matters.

Principles on appeal

[7] Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different
sentence should be imposed.2

[8] If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and

1 Police v McWhirter [2016] NZDC 16473 at [31].
2 Criminal Procedure Act 2011, ss 250(2) and 250(3).

substitute its own views for those…

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.

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Details

Case: [2016] NZHC 2865
Decision Date: 29 November 2016

CaseChat Overview and Summary

In the High Court of New Zealand, the appellant, Dylan Connor McWhirter, appealed against his sentence of two years and nine months’ imprisonment for aggravated robbery, along with one month for receiving stolen property, both sentences to run concurrently. McWhirter was 17 years old at the time of the offence, which involved him robbing a store at knifepoint. He had previously been found in possession of a stolen mountain bike. The appellant contended that the sentence was manifestly excessive because the sentencing judge had failed to adequately consider his youth and rehabilitative prospects as mitigating factors.

The central legal issues were whether the sentencing judge erred in his evaluation and assessment of the mitigating factors of the appellant's youth and rehabilitative prospects. Specifically, the appellant argued that the judge failed to give sufficient weight to his youth and did not properly consider the statutory purpose of assisting in the offender’s rehabilitation and reintegration. The court needed to determine if the sentence imposed was manifestly excessive or an error justifying correction on appeal.

The court found that youth could justify a substantial discount but its relevance and the extent of any discount were matters of judicial judgment. While the appellant was young, there were factors such as premeditation that mitigated against a finding of true impulsivity. The sentencing judge had considered the appellant’s youth and rehabilitative prospects and gave a seven-month discount for those factors. The judge also considered other relevant sentencing principles and was not persuaded that a substantial reduction in sentence would enhance the appellant's prospects of rehabilitation. The court held that the judge’s reasoning did not disclose a failure to consider the mitigating factors such as to make the sentence manifestly excessive. The appeal against sentence was dismissed.

Orders