Wharton v Police - [2017] NZHC 960

IN THE HIGH COURT OF NEW ZEALAND

ROTORUA REGISTRY

CRI-2017-463-13

[2017] NZHC 960

BETWEEN
CHARLES EDMOND WHARTON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 11 May 2017

Appearances:

K Johnson (on instructions from R Plunket) for the Appellant AZM Shore for the Respondent

Judgment:

11 May 2017

ORAL JUDGMENT OF WOODHOUSE J

Solicitors / Counsel:
Ms K Johnson, Potts & Hodgson Ltd, Solicitors, Opotiki Ms R Plunket, Barrister, Whakatane

WHARTON v POLICE [2017] NZHC 960 [11 May 2017]

Ms AZM Shore, Hollister-Jones Lellman, Office of the Crown Solicitor, Tauranga

[1] Mr Wharton appeals against a sentence of 12 months imprisonment for burglary.1

[2] The facts can be stated briefly. One night three associates of Mr Wharton, with whom he was that night spending some time, burgled a home where the residents were asleep. Mr Wharton had apparently discussed the possibility of a burglary with them but in the end did not go with his three associates. These people decided to go back the same night and on that occasion Mr Wharton went with them. The police summary of facts, to which Mr Wharton pleaded guilty, records that on this occasion – the second occasion – Mr Wharton simply waited outside the house at the door. One of his associates went in and then called another to go in. The fourth person acted as a look-out. Mr Wharton claimed he was heavily intoxicated.

The sentence

[3] In respect of the gravity of the offence Judge P G Mabey QC noted two matters. In relation to what Mr Wharton did the Judge said:

[4] … He chose not to partake in [the first burglary] but for reasons best known to Mr Wharton he engaged with them later and on the second occasion they went into the property he became involved in a burglary. His share of the reparation is reflected in the schedules which I have been provided. One to an insurance company of $1,039.17 and one directly to the owner of $325.

[4]The Judge also referred to the victim impact statement. He said:

[8] … The victim impact statement is typical of those that have their privacy breached and property taken. They live in fear and will continue to do so for some time. That is a human consequence of domestic burglary.

[5] In respect of a starting point, the Judge noted that in Arahanga v R the Court of Appeal “indicated that a start point for a low-level domestic burglary is 18 months imprisonment”.2 It may assist to record at this point the full statement of the Court:3
This Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied.⁴ Burglary of a domestic residence is a significant aggravating feature at sentencing due

1      Police v Wharton [2016] NZDC 26862.
2      Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189, (2012) 26 CRNZ 63.
3      Ibid, at [78]
4 As noted in Sunnex…

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 Wharton v Police

Details

AGLC: Wharton v Police [2017] NZHC 960
Case: [2017] NZHC 960
Decision Date: 11 May 2017

CaseChat Overview and Summary

Charles Edmond Wharton appeals against a sentence of 12 months imprisonment for burglary, imposed by Judge P G Mabey QC. Wharton's co-offenders, with whom he spent the night, burgled a home where the residents were asleep. Wharton initially did not participate in the first burglary but later joined his associates for a second attempt. On this occasion, he waited outside the house while one of his associates entered and then called another. Wharton claimed he was heavily intoxicated. The court considered the gravity of the offence, the victim impact statement, and the starting point for the sentence, which was noted to be around 18 months imprisonment for low-level domestic burglaries. The court also took into account Wharton's previous convictions for aggravated robbery and burglary. The pre-sentence report assessed Wharton as having a medium risk of reoffending and harm to others. The court rejected the submission that home detention should have been imposed and concluded that the sentence of 12 months imprisonment was not manifestly excessive.

The appeal was assessed under section 250 of the Criminal Procedure Act 2011, which requires the court to determine whether there is an error in the sentence and if a different sentence should be imposed. The court found that the starting point for the sentence was appropriate, even if it was lower than 18 months for a secondary party. The court also considered the personal aggravating and mitigating factors and found that they cancelled each other out. The court rejected the argument that home detention should have been imposed, as the home detention report indicated that it was not possible due to Wharton's history of non-compliance and other factors. The appeal was accordingly dismissed.

Orders