Waenga v Police - [2016] NZHC 1712

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000170 [2016] NZHC 1712

IN THE MATTER OF an appeal against sentence

BETWEEN

RAWIRI HOIRANGI WAENGA Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 25 July 2016

Counsel:

P T Eastwood for the Appellant
S R Norrie for the Respondent

Judgment:

27 July 2016

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 27 July 2016 at 10.30 am, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel: P T Eastwood, Auckland

Solicitors: Kayes Fletcher Walker Limited, Auckland

WAENGA v POLICE [2016] NZHC 1712 [27 July 2016]

Introduction

[1] Mr Waenga appeals his sentence of two years, six months’ imprisonment on a number of charges, the most serious being burglary and dishonestly using a document. He appeals on the grounds that a 15 month uplift from the starting point adopted for the lead offence for the other offending and prior convictions resulted in an end sentence that was manifestly excessive. He also submits that the Judge should have given a greater discount for personal mitigating factors.

Facts

[2] Mr Waenga pleaded guilty to the following offences: (a) Breach of home detention;1
(b) Burglary;2

(c) Dishonestly using a document;3

(d) Possessing instruments for conversion;4 and

(e) Two charges of unlawfully being in an enclosed yard.5

[3] On 17 January 2015, Mr Waenga was serving a seven months’ home detention sentence for three charges of burglary. His probation officers were advised that his anklet had been tampered with and subsequent enquiries confirmed he was not at his home address.

[4] The burglary charge arises out of offending committed on 14 February 2015 at a business address in Manukau. Mr Waenga and two associates went to that
address at approximately 4.20 am in the morning and stole 10 sets of mag wheels

1      Sentencing Act 2002, s 80S. Maximum penalty $2,000 fine or one year imprisonment.
2      Crimes Act 1961, s 231(1)(a). Maximum penalty 10 years’ imprisonment.
3      Crimes Act 1961, s 228(1)(b). Maximum penalty seven years’ imprisonment.
4      Crimes Act 1961, s 227. Maximum penalty 12 months’ imprisonment.
5      Summary Offences Act 1981, s 29. Maximum penalty three months’ imprisonment or $2,000
fine.

and a 48 inch Panasonic Smart TV. The value of goods stolen was estimated to be

$20,000.

[5] The offending giving rise to the charge of dishonestly using a document occurred on 17 March 2015. Mr Waenga entered a petrol station and made two purchases using a stolen Visa card. A short time later Mr Waenga made a further purchase at another petrol station. The three purchases totalled $115.10.

[6] Finally, the possessing the instruments for conversion and unlawfully on a property charges relate to offending on the evening of 18 March 2015. At about
8.40 pm that evening, the first victim was asleep in the garage at his property. He awoke to see Mr Waenga hiding in the corner of the garage. He told Mr Waenga to get out. Mr Waenga…

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 Waenga v Police

Details

AGLC: Waenga v Police [2016] NZHC 1712
Case: [2016] NZHC 1712
Decision Date: 27 July 2016

CaseChat Overview and Summary

Mr Waenga appealed against his two-year, six-month imprisonment sentence for burglary, dishonest use of a document, and other charges. The appeal centred on whether the sentence was manifestly excessive and whether the Judge should have provided a greater discount for personal mitigating factors. The court considered the starting point and uplift for other offending and prior convictions, and whether the discount for personal mitigating factors was appropriate.

The court held that the starting point for the burglary charge was appropriate, given the circumstances of the offence. While there was a suspicion that the prior convictions may have been taken into account twice, the court found that the starting point and uplift applied by the Judge were within the appropriate range. The court considered the value of the stolen property, the element of pre-meditation, and the fact that the burglary was committed under cover of darkness in the early hours of the morning. The court also found that the uplift for other offending and prior convictions was within the appropriate range, and that the discount for personal mitigating factors was sufficient.

The court concluded that there was no material error in the sentence imposed by the District Court, and dismissed the appeal. The two-year, six-month imprisonment sentence was not outside the available range, and there was no justification for the High Court to substitute a different sentence.

The final orders of the court were that the appeal against sentence be dismissed.

Orders