Waiwai v R - [2012] NZCA 251

IN THE COURT OF APPEAL OF NEW ZEALAND

CA83/2012
[2012] NZCA 251

BETWEEN WHETU SONNY WAIWAI
Appellant

AND THE QUEEN
Respondent

Hearing: 14 June 2012

Court: Ellen France, Lang and Clifford JJ

Counsel: J S Jefferson for Appellant
M J Lillico for Respondent

Judgment: 15 June 2012 at 11 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal against sentence is allowed.
CThe sentence of two years nine months imprisonment is quashed and a sentence of one year seven months imprisonment is substituted in its place.

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REASONS OF THE COURT

(Given by Lang J)

Mr Waiwai pleaded guilty in the District Court to charges of burglary, unlawfully getting into a motor vehicle, dangerous driving, failing to stop and failing to comply with the directions of an enforcement officer. On 1 July 2011, Judge Adeane sentenced him to two years nine months imprisonment. He also disqualified Mr Waiwai from driving for a period of two years.[1]
[1] R v Hemaloto DC Napier CRI-2011-041-452, 1 July 2011.
Mr Waiwai applies for an extension of time to appeal to this Court on the ground that the sentence the Judge imposed was manifestly excessive.
The Crown does not oppose the extension of time being granted, and we make an order accordingly.

Background

On 8 February 2011, a Mazda double-cab utility vehicle was stolen from the premises of a Gisborne building company. On the following day, Mr Waiwai was driving the vehicle in the Napier area accompanied by three associates.
The vehicle entered the driveway to a residential property. One of the occupants of the vehicle broke open the back door, thereby causing significant damage to it. Mr Waiwai and two associates then entered the address and removed several items from it. These included a 50 inch flatscreen television set, jewellery, a set of speakers, an iPod, a docking station, car audio speakers and clothing. The total value of the property taken from the address was approximately $4000.
A neighbour observed what was going on at the address, and contacted the police. A short time later, a police patrol vehicle found Mr Waiwai driving the vehicle on a suburban street. When the patrol vehicle pulled Mr Waiwai’s vehicle over, Mr Waiwai dramatically accelerated his vehicle up onto the footpath, travelled through a garden, back onto the footpath and then back onto the road. This precipitated a reasonably lengthy pursuit through an industrial area in which Mr Waiwai’s vehicle was pursued by the police patrol vehicle which had activated its flashing lights.
The police were eventually able to stop the vehicle, and all four occupants were taken into custody. The stolen property was also recovered. In the footwell of the passenger seat in which one of Mr Waiwai’s associates was sitting, the police found an imitation pistol and roll of masking tape.

The structure of the sentence

The Judge took the burglary charge as being the most serious charge. He selected a starting point on that…

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 Waiwai v R

Details

AGLC: Waiwai v R [2012] NZCA 251
Case: [2012] NZCA 251
Decision Date: 15 June 2012

CaseChat Overview and Summary

In Waiwai v R, the Court of Appeal of New Zealand reviewed the sentence imposed on Mr. Waiwai by Judge Adeane in the District Court. Mr. Waiwai pleaded guilty to burglary, unlawfully getting into a motor vehicle, dangerous driving, failing to stop, and failing to comply with the directions of an enforcement officer. The District Court sentenced Mr. Waiwai to two years and nine months imprisonment and disqualified him from driving for two years. The appellant sought an extension of time to appeal, arguing that the sentence was manifestly excessive. The Crown did not oppose the extension, and the Court granted it. The Court of Appeal found that the starting point for the burglary charge was too high, and reduced it to 20 months imprisonment. The Court also reduced the uplift for unlawfully getting into a motor vehicle and dangerous driving to four months imprisonment. Applying the same level of discount for the guilty pleas as the Judge, the Court reached an end sentence of 19 months imprisonment. The Court found that the two-year period of disqualification was not manifestly excessive, and thus, it remained intact. The appeal was allowed, and the sentence of two years and nine months imprisonment was quashed, replaced by a sentence of one year and seven months imprisonment. The cumulative sentences for unlawfully getting into a motor vehicle and dangerous driving were also reduced to concurrent sentences of two months imprisonment each. The sentences imposed on the remaining charges remained intact.

Orders