[1] The appellant, Mr Waipouri, was sentenced to four years, three months’ imprisonment, with a 50 per cent minimum period of imprisonment (“MPI”) by Judge Harvey in the District Court on 1 May 2015. The sentence was imposed for three charges of burglary, two charges of receiving, two charges of unlawfully taking a motor vehicle and one charge of theft. Two further charges of theft carried a maximum sentence of three months imprisonment. Mr Waipouri was convicted and discharged on those charges. He now appeals against the sentence of imprisonment on the grounds that Judge Harvey erred by failing to discount for mitigating factors, resulting in an end sentence that was manifestly excessive.

Factual background

[2] In the early afternoon of 24 May 2013, Mr Waipouri “jemmied” a bedroom window of a residential home and entered the house. He stole a laptop, a mountain bike, an ipod, jewellery and other miscellaneous items to the value of approximately
$4,000.

[3] The second burglary took place between 9 pm of 25 May 2013 and 7 am on

26 May 2013. Mr Waipouri gained access to a residential home through french doors and stole jewellery, a television, a handbag containing a wallet and the keys for a motor vehicle. He used the keys to steal the vehicle. The victim was home asleep during the burglary. The loss caused to the victim was appropriately $2,000. The vehicle was later found and returned to the owner.

[4] The third burglary took place in the morning of 4 July 2013. Mr Waipouri approached the ranch slider door of a residential property and forced the door open. He entered the address and stole a laptop computer and other items.

[5] The first receiving charge relates to Mr Waipouri being found on 4 July 2013 with a USB stick, 300 Mexican pesos and a purple backpack. These items belong to the victim of a burglary. The second receiving charge relates to Mr Waipouri being found on 4 July 2013 with National Bank cards in his possession that belong to another victim of a burglary.

[6] The unlawful taking of a motor vehicle charge arose on 4 July 2013 when the victim had started up his motor vehicle and left it to warm up on the driveway. Mr Waipouri stole the vehicle and drove away from the address. When the vehicle was located, a child’s car seat was missing from the vehicle.

[7] The theft charges related to Mr Waipouri entering…

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 Waipouri v R

Details

AGLC: Waipouri v R [2015] NZHC 2029
Case: [2015] NZHC 2029
Decision Date: 26 August 2015

CaseChat Overview and Summary

Ilya Monty Waipouri was convicted in the District Court of three charges of burglary, two charges of receiving, two charges of unlawfully taking a motor vehicle, and one charge of theft. Waipouri was sentenced to four years, three months’ imprisonment, with a 50 per cent minimum period of imprisonment. Waipouri appeals against the sentence on the grounds that the District Court judge erred by failing to discount for mitigating factors, resulting in a sentence that was manifestly excessive. The appeal raises issues as to whether a discount should have been given for Waipouri’s post traumatic stress disorder, social deprivation, remorse, and rehabilitation efforts. The appeal also considers whether a minimum period of imprisonment should be imposed. The High Court found that the sentence imposed was manifestly excessive and allowed the appeal. The sentence was reduced to three years, six months’ imprisonment. The Court found that a discount for post traumatic stress disorder and social deprivation was appropriate and that the minimum period of imprisonment should not be imposed.

Orders