Wharerau v Police - [2017] NZHC 72

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000403 [2017] NZHC 72

BETWEEN
HENARE WHARERAU

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 3 February 2017

Counsel:

J M Hudson for Appellant
I S Ko for Respondent

Judgment:

3 February 2017

ORAL JUDGMENT OF DOWNS J

Solicitors/Counsel:
J M Hudson, Manukau.
Kayes Fletcher Walker, Manukau.

WHARERAU v POLICE [2017] NZHC 72 [3 February 2017]

The issue

[1] On 29 November 2016 Judge Ingram sentenced the appellant to a 25-month term of imprisonment in relation to burglary offending, possession of ammunition and a breach of bail.1 The appellant contends that sentence is manifestly excessive. The respondent submits it is within range.

Background

[2] On 7 February 2015 the appellant was drinking with friends. When there was nothing left to drink, he and his friends decided to get more alcohol by burgling a Countdown supermarket. The appellant took with him a large rock. At approximately 12.20 am, he threw the rock through the supermarket’s front window. The window smashed. The appellant and two friends entered the store and collected casks of wine. Countdown lost $500.

[3] The appellant committed similar offending in the early hours of 26 November

2015. He smashed the front window to a New World supermarket, entered the store and stole two boxes of Steinlager beer and other items. He returned home and drank the beer. New World lost $609.

[4] The summary of facts records the appellant’s pithy explanation to Police: “I

broke into both of those shops because I wanted more alcohol”.

[5] The appellant was granted bail in relation to the burglary offending; the charges in relation to which were laid in late 2016. The appellant breached an associated curfew and was arrested on 26 October 2016. When searched, Police found two .375 rounds of magnum ammunition in his pocket.

[6] Judge Ingram considered an appropriate starting point for the burglary offending was “something in the region of two years” imprisonment.2 In relation to the first burglary, the Judge adopted a starting point of 18 months, which His Honour
uplifted by three months in light of the appellant’s “bad record”. The Judge then

1 Police v Wharerau [2016] NZDC 24188.
2 At [10].

afforded the appellant a six-month discount for his guilty plea, resulting in a sentence of 15 months’ imprisonment. The Judge adopted a starting point of nine months’ imprisonment for the second burglary, mitigated by three months for the guilty plea and offer of reparation. The six-month sentence was made cumulative. The Judge adopted a starting point of six months’ imprisonment in relation to the ammunition offence, mitigated by two months for the guilty plea. The four-month sentence was also made cumulative. The Judge imposed a concurrent period of one month’s imprisonment in relation to the breach of bail; an overall sentence of 25 months’ imprisonment. The Judge also ordered reparation of $1,109.

The parties’ cases

[7] The appellant contends the Judge erred by adopting an excessive starting point in relation to the first…

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: [2017] NZHC 72
Decision Date: 3 February 2017

CaseChat Overview and Summary

Wharerau v Police concerns an appeal by the appellant, Henare Wharerau, against his sentence of 25 months imprisonment for burglary and possession of ammunition while on bail, as well as a breach of bail. The appeal was heard by Downs J in the High Court of New Zealand. The appellant argued that the sentence was manifestly excessive, while the respondent, the New Zealand Police, contended that the sentence was within the appropriate range. The central issue for the court was whether the sentence imposed was excessive or within the appropriate range.

The court examined the factors relevant to the sentencing of the appellant, including the degree of planning, sophistication, nature of the premises, kind and value of property stolen, amount of damage, victim impact, and extent of offending. The court found that the starting point for the burglary offences was too high, and by approximately three months. The court also found that the uplift for the appellant’s criminal history was unwarranted. The court noted that the discount for the appellant’s guilty pleas and offer of reparation was generous but was partially offset by the unduly high starting point and the uplift for the appellant’s criminal history.

Ultimately, the court found that the sentence imposed was beyond the appropriate range. The appeal was allowed, and the sentence was quashed. A term of 22 months’ imprisonment was substituted. The court emphasised that reasonable minds could disagree as to whether the substitution of this term constituted tinkering, something appeal courts have consistently said they will not do. However, the court considered the appellant’s young age and the excessiveness of the original sentence in arriving at its decision.

Orders