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Wharrie v R

Wharrie v R

Case [2019] NZHC 633 29 March 2019

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-485-12

[2019] NZHC 633

BETWEEN
ANDREW WHARRIE

Appellant

AND

THE CROWN

Respondent

Hearing: 22 March 2019

Appearances:

E J Forster for Appellant

A R T Garrick for the Crown

Judgment:

29 March 2019

JUDGMENT OF GRICE J

Background

[1] Mr Wharrie was sentenced to five months home detention, three months post- detention conditions, and eight months’ disqualification on charges of breaching a protection order1 and intentional damage.2 He appeals his sentence imposed by the District Court at Wellington on 16 November 2018.3

[2] Mr Wharrie appeals his sentence on the grounds it was manifestly excessive because the Judge erred by:

(a)Failing to provide a discrete discount to the starting point for time spent on electronically monitored (EM) bail;

1      Domestic Violence Act 1995, ss 19(1)(a)–(b), 29(1)(b) and 49(3). Maximum penalty of three years’ imprisonment.
2      Crimes Act 1961, s 269(1). Maximum penalty of 10 years’ imprisonment.
3      R v Wharrie [2018] NZDC 27375.

WHARRIE v THE CROWN [2019] NZHC 633 [29 March 2019]

(b)Failing to provide a discrete discount to the end sentence of home detention for time spent on pre-sentence detention; and

(c)Providing a disproportionate global discount for both time spent on EM bail and pre-sentence detention

[3] The Crown argue the EM bail and pre-sentence detention discounts do not need to be equivalent to the time actually spent on EM bail or in remand. No error was made it says.

Leave to appeal

[4] Mr Wharrie was sentenced on 16 November 2018 and filed his notice of appeal on 14 March 2019. This appeal is out of time.4 The Crown does not consent to leave for appeal being granted. Mr Wharrie explained in an affidavit before this Court that he only received the sentencing notes on 27 February 2019. Mr Forster, counsel for Mr Wharrie, was not contacted until 7 March 2019. The appeal was filed a week after that date. The delay in this case is relatively short and explained.5 It is, therefore, in the interests of justice that leave be granted.6

Background

The offending

[5] On 27 May 2018, a final protection order was made against Mr Wharrie in the Masterton Family Court naming the complainant (Mr Wharrie’s wife) as the protected person.

[6] On the morning of 3 August 2018, Mr Wharrie and the complainant had a verbal disagreement about the continued existence of the protection order and other personal matters.

4      Criminal Procedure Act 2011, s 248(2).
5      R v Lee [2006] 3 NZLR 42 (CA) at [115].
6      R v Knight [1998] 1 NZLR 583 (CA) at 587.

[7] At midday both parties left their farm property and drove toward Masterton. Mr Wharrie began slowing his car in the left lane of traffic. The complainant moved to overtake him. As she did this he intentionally swerved his car, colliding with her left rear passenger door. The complainant managed to stay in control of her car…

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 Wharrie v R

Details

AGLC: Wharrie v R [2019] NZHC 633
Case: [2019] NZHC 633
Decision Date: 29 March 2019

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal from Andrew Wharrie against his sentence imposed by the District Court at Wellington on charges of breaching a protection order and intentional damage. The appellant appealed on the grounds that the sentence was manifestly excessive because the judge failed to provide a discrete discount to the starting point for time spent on electronically monitored bail, a discrete discount to the end sentence of home detention for time spent on pre-sentence detention, and provided a disproportionate global discount for both time spent on electronically monitored bail and pre-sentence detention. The Crown argued that no error was made and that mathematical equivalence was not required for either electronically monitored bail or pre-sentence detention discounts. The Court found that while an error was made in that separate discounts for presentence detention and electronically monitored bail should have been considered, in the circumstances the sentence was not manifestly excessive. The appeal was dismissed.

Orders