Whautere v Police

[2025] NZHC 447

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2025-488-00009

[2025] NZHC 447

BETWEEN

RIWAI JOHN PAUL WHAUTERE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	26 February 2025
Appearances:	C Taylor for Appellant A Goodwin for Crown
Judgment:	11 March 2025

JUDGMENT OF ANDERSON J

This judgment was delivered by me on 11 March 2025 at 3:00 pm.

……………………………… Registrar/Deputy Registrar

Solicitors:
Marsden Woods Inskip Smith, Whangarei

WHAUTERE v POLICE [2025] NZHC 447 [11 March 2025]

[1]                 Riwai Whautere pleaded guilty to driving while suspended,1 obtaining by deception (x6),2 receiving property over $1,000,3 failing to stop,4 failing to answer District Court bail (x2),5 shoplifting under $500 (x2),6 and theft of property under $500 (x5)7.

[2]  On 15 January 2025 Mr Whautere was sentenced by Judge D J McDonald to two and a half years’ imprisonment. Mr Whautere was further disqualified from holding or obtaining a driver’s licence for six months on his release from prison. No reparation order was made.8

[3]                 Mr Whautere appeals. He says the end sentence was manifestly excessive because the starting point of three years and six months’ imprisonment was too high and there were insufficient discounts for his early guilty plea, background factors, youth and addiction issues.

The offending

[4]                 On 9 October 2021, Mr Whautere contacted a victim to buy an iPhone 11 they had listed on Marketplace for $1,650. Mr Whautere came to a deal whereby he would pay $400 more into the victim’s account, provided it was returned upon collection of the iPhone. Mr Whautere doctored a screenshot of a bank statement confirming payment of $2,050. No such payment had been made. Mr Whautere later met up with the victim and collected the iPhone, and $400 cash.

[5]                 On 23 December 2021 Mr Whautere was suspended from holding or obtaining a  driver’s  licence  for   three  months  due  to   excessive  demerit   points.    On    17 January 2022 Mr Whautere drove a BMW motor vehicle, in breach of this suspension. At that time, he was driving to a residential address to collect a Yamaha

1      Land Transport Act 1998, ss 32(1)(c) and 32(3). Maximum penalty: 3 months’ imprisonment or a $4,500 fine, and a minimum six months’ disqualification from holding or obtaining a driver’s licence.

2      Crimes Act 1961, ss 240(1)(a) and 241(a). Maximum penalty: seven years’ imprisonment.

3      Crimes Act 1961, ss 246 and 247(2). Maximum penalty: seven years’ imprisonment.

4      Land Transport Act 1998, ss 52A(1)(a)(ii) and 114(2). Maximum penalty: $10,000 fine.

5      Bail Act 2000, s 38(a). Maximum penalty: one year’s imprisonment or a $2,000 fine.

6      Crimes Act 1961, s 219 and 223(d). Maximum penalty: three months’ imprisonment.

7      Crimes Act 1961, s 219 and 223(d). Maximum penalty: three months’ imprisonment.

8      No reparation was ordered because the Judge concluded that Mr Whautere would never pay this.

Raptor 125 ATV from a victim.  It  had  been  arranged  between  the  parties  that Mr Whautere would purchase the ATV for $4,700. On receiving the victim’s bank account details, Mr Whautere doctored a screenshot of a bank statement confirming payment. Again, no such payment had been made. Mr Whautere nevertheless collected the ATV.

[6]                 Mr Whautere repeated this kind of offending, doctoring screenshots indicating a bank statement confirming payment of the funds for online sales and taking possession of the goods without payment. This included sending a doctored screenshot of:

(a)$2,600 to another victim for a large family tent that had been on Facebook Marketplace on 1 January 2022.

(b)$8,300  to  another  victim  for  a  Honda  CRF250  farm  bike  on    12 June 2022.

(c)$6,300  to  another  victim   for   a   250   Yamaha  motorcycle   on  11 August 2023.

[7]                 Overall, Mr Whautere obtained around $24,000 worth of goods. He also received a  stolen  Ford  Courier  valued  at  $6,000  from  an  unknown  person  on  2 August 2023.

[8]                 Further, on 5 January 2024 and 5 May 2024 Mr Whautere shoplifted from Woolworths.   On 13 April 2024, 14 April 2024, 16 April 2024,  3 May 2024 and     5 May 2024 Mr Whautere filled up his vehicle at a service station and drove off without paying for the fuel. And on 24 July 2023 and 5 April 2024, Mr Whautere failed to answer District Court Bail.

District Court decision

[9]                 The Judge adopted a starting point of three years’ imprisonment for the six lead counts of obtaining by deception and uplifted this by six months for the other offending.

[10]              As to personal mitigating factors, Mr Whautere sought a 25 per cent discount for pleading guilty on 12 July 2022 relative to his first appearance on 22 June 2022. Due to the delay in resolving the offences over the following two and a half years, the Judge considered only a 15 per cent guilty plea discount was appropriate. In the intervening period Mr Whautere failed to appear for sentencing numerous times, and absconded from electronically monitored (EM) bail.

[11]              The Judge discussed Mr Whautere’s youth (aged 22-23 at the time of the offending), personal circumstances (loss of his grandfather who raised him) and consequential methamphetamine addiction. Although not clear from the notes what discount for these was intended, the total in fact applied was around 13.5 per cent.

[12]              The Judge sentenced Mr Whautere to two and a half years’ imprisonment for the obtaining by deception offences, six months’ imprisonment for the receiving offence, and one month’s imprisonment for all other offences. This was to be served as a concurrent two and a half years’ imprisonment.

Approach on appeal

[13]              The Court must allow an appeal if it is satisfied that there was an error in the initial sentence and that a different sentence should be imposed.9 The Court’s focus is on the end sentence. The overall question on appeal is whether the sentence was manifestly excessive or is wrong in principle.10 If the process by which a sentencing judge arrives at the end sentence was flawed, but the sentence nonetheless can be properly justified by accepted sentencing principles, then the appeal Court will not

intervene.11

[14]              I address each of the separate appeal points below, before standing back to come to a conclusion on whether the overall conclusion was manifestly excessive.

9      Criminal Procedure Act 2011, s 250(2).

10     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]-[35].

11     At [33] and [36].

Starting point

[15]              Mr Taylor, on behalf of Mr Whautere, submits that the three-year starting point for the deception  offending  was  too  high  and  out  of  kilter  with  other  cases.  Mr Goodwin for the Crown contends the starting point was within the available range. No issue is taken by either party with the uplift of six months for the other offending, which I agree was appropriate.

[16]              Dishonesty offending has no guideline judgment because of the wide range of circumstances in which it can occur. Planned and repeated dishonesty for financial gain typically constitutes serious offending, warranting a clear element of denunciation.12

[17]              Relevant to assessing a defendant’s culpability are factors such as the nature of the offending; its magnitude and sophistication; the type, circumstances and number of the victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved; and the impact on victims.13 A composite evaluation of all factors is required. These are assessed by reference to comparison with other cases.14

[18]              I have considered cases referred to me by counsel as well as some additional ones. In summary:

(a)In Chapman v Police the defendant was convicted on eight charges of obtaining property by deception,15 involving charging goods bought from suppliers (such as power tools, farm supplies and milk powder) to accounts of previous employers.16 A ninth obtaining by deception charge related to obtaining a deposit for the sale of a tractor that did not exist. There was other dishonesty offending involving conversion, receiving, and a further representative charge of obtaining by deception

12     Arnott v R [2015] NZCA 236 at [8], citing R v Rose (1990) 5 CRNZ 638 (CA) at 642.

13     R v Varjan CA97/03, 26 June 2003.

14     As noted in Falwasser v New Zealand Police [2022] NZHC 584 at [20].

15     Five involving property worth over $1,000, two involving property between $500 and $1,000, and one involving property less than $500).

16     Chapman v Police [2015] NZHC 498.

using a stolen credit card.17 The total loss for the 14 dishonesty charges was approximately $50,000 and involved 24 victims over a five-month period. On appeal to this Court, Clifford J considered that a starting point for all 14 dishonesty charges of two and a half years’ imprisonment was appropriate.

(b)Gobey v Police involved losses of around $41,000 to multiple victims over a six-month period.18 The defendant adopted several different modes of offending. This included receiving money for items the defendant purported to sell online, impersonating bank staff to obtain and use victims’ bank account details; using financial details of a victim to buy a new cell phone online and sell it, applying for a credit card in another victim’s name, and impersonating a police officer to create and use an online sales account. The starting point in the District Court of two years nine months’ imprisonment was upheld on appeal, with the Judge describing this as at the higher end of the range.

(c)Blackmore v R involved $16,000 of losses (involving offending worth over $62,000).19 There were 17 victims and offending over a nine month period. The method was to offer to repair or sell vehicles under an assumed identity and taking payment without performing the work. The defendant provided written agreements using various assumed identities. In one instance he obtained cash by befriending a female mental health patient whom he took out of hospital and helped himself to cash totalling $1,800 from her ATM bank card. In another instance he secured accommodation without paying for it. The Court of Appeal adopted a starting point of three years and three months’ imprisonment. In analysing the offending, it was noted that previous cases had taken

17     Three charges of unlawfully taking a motor vehicle, and one each of receiving over $1,000, burglary and breaching sentence.

18     Gobey v Police [2018] NZHC 1555.

19     Blackmore v R [2014] NZCA 109.

this as the starting point for offending where significantly larger sums were involved. 20

(d)In Helsby-Knight v R the Court described the starting point of three years and six months’ imprisonment as within but at the lower end of the available range.21 This was for 117 charges involving fraud on a commercial scale against 113 victims and losses of $156,790, where false documentation and advertising was produced for fictitious businesses.

(e)The offending in Beaumont v Police involved a range of conduct including online sales of non-existent items, deposits for repair work that the defendant quoted for but did not do, debts for accommodation and meals not paid for and conversion of a rental car.22 The offending caused loss of $65,000 to 39 victims over two and a half years. The defendant manufactured emotive false stories to gain victims’ trust about his circumstances, with losses being exacerbated due to this taking place during Covid-19 restrictions. Justice Osborne considered the top end of the range for the appropriate starting point was three years and nine months’ imprisonment.23

(f)In Gray v R over the period of approximately a year, the defendant offended  against  six   separate  victims.24   She  pleaded   guilty   to 12 charges of causing loss by deception, three charges of dishonestly

20 At [11] citing R v Hii CA99/05, 10 April 2006 ($127,000 taken, starting point of three and a half years’ imprisonment); R v Hapuku [2007] NZCA 368 ($126,887 taken, starting point of three years and three months’ imprisonment); Mamfredos v R [2010] NZCA 524 ($660,826 taken, starting point of three and a half years’ imprisonment); Down v R [2011] NZCA 138 ($850,000 taken, starting point of three years’ imprisonment); R v Davis [2009] NZCA 26 ($277,826.99 taken, starting point of four years’ imprisonment); Thomas v Police HC Auckland CRI-2008-404-343, 9 February 2009 ($312,467.27 taken, starting point of four years’ imprisonment); Sahib v Police [2012] NZHC 3324 ($272,000 taken, starting point of four years’ imprisonment); Mitha v Police HC Auckland CRI-2006-404-0266, 28 September 2006 ($346,672 taken, starting point of three years’ imprisonment).

21 Helsby-Knight v R [2015] NZCA 315.

22 Beaumont v Police [2022] NZHC 472.

23   The Court had  regard to  Arnott v R  [2015] NZCA 236; R v Rose  (1990) I5 CRNZ 683 (CA);   R v Varjan CA97/03, 26 June 2003; McGregor v R [2015[ NZCA 565; Rako v R [2015] NZCA 463; Chapman v Police [2015] NZHC 498; Gobey v Police [2018] NZHC 1555; and Helsby-Knit v R [2015] NZCA 315.

24     Gray v R [2024] NZHC 2746.

using or taking a document and one charge of theft of an amount over

$1,000. In each case the defendant befriended and gained the trust of the victim before asking them to  lend or provide her  with  money.  Ms Gray formed relationships with all of them, actually lived with at least three of them and convinced one to marry her. There were unrecoverable  losses  of  $73,000  with   high   victim   impact. Justice Venning considered that the appropriate starting point on all the charges (not just on certain lead charges) was between three years and nine months, and four years’ imprisonment.

(g)In Maddren v R, the dishonesty offending occurred over a number of years.25 The defendant pleaded guilty to 12 charges including forging drivers’ licences as proof of identification to rent cars and obtain sim cards. He also used fraudulently obtained money cards and SIM cards to transfer funds from victims’ accounts. The offending involved

$157,000 in losses. This Court considered the three years and nine months’ imprisonment starting point for this dishonesty offending was at the top of the available range.

[19]              Mr Whautere’s deception offending was  sporadic,  running  between  October 2021 to August 2023. As Mr Taylor submitted, it was opportunistic in the sense that each offence was likely prompted by the need for an easy gain to feed    Mr Whautere’s methamphetamine addiction. However, there is plainly a significant degree of premeditation given the preparation required.

[20]              The total loss and total number of victims were substantially less than all the above cases, apart from Blackmore where the actual loss was less due to recoveries made.

[21]              Both counsel point to the Beaumont  case  as  sharing  characteristics  with Mr Whautere’s offending which included online sales. This was significantly more serious offending reflected in the three year and nine month starting point. The Crown

25     Maddren v R [2024] NZHC 2599.

submits that the three-year starting point in the present case is within range relative to

Beaumont because Mr Whautere’s offending was more sophisticated.

[22]              Mr Whautere’s one methodology was to doctor bank statement screenshots and meet victims. I disagree that Mr Whautere’s offending requires materially greater sophistication or premeditation than using others’ online photographs for sales as in Beaumont, apart from requiring a rudimentary knowledge of how to change document images. Moreover, Mr Beaumont adopted several modes of offending including fabricating elaborate stories to dupe his victims. I view the offending in the Beaumont case as a real step change more serious than Mr Whautere’s in this case. So too, are Helsby-Knight, Gray and Maddren.

[23]              As the Judge observed, because Mr Whautere’s offending involved an abuse of the online sales system it goes to the heart of how many people transact through online platforms and  hence  involves  an  inherent  breach  of  trust.  In  addition,  Mr Whautere had face-to-face conduct with his victims, which increases the betrayal of trust.

[24]              However, the present offending does not have the aggravated feature of impersonating a police officer and bank staff as in Gobey, yet a starting point of two years  and  six  months’  imprisonment  was  imposed  there.  Nor  did  it  involve  Mr Whautere telling elaborate stories to the victims or sustained building up of trust over a period of time as in Gray, Beaumont and Blackmore.

[25]              Unlike in Chapman, Mr Whautere’s offending was targeted at private individuals with limited means and scattered over a longer total period. The money lost was highly significant to the private victims here. For example, for the victims selling a tent, this was a major item for them and was being sold to finance renovations and to start saving for a wedding. The 14-year-old, who lost a phone to Mr Whautere’s deception, has had the guilt of causing his family considerable hardship by the financial consequences this caused. However, Chapman did involve a serious breach of prior employers’ trust and the starting point of two years and six months encompassed a range of dishonesty offending,

[26]              In my view, particularly having regard to Gobey and Chapman, and looking at Mr Whautere’s dishonesty offending in the round, I consider the three-year starting point was above the available range. In my view a starting point more akin to those cases was appropriate in a range of two years four months’ to two years eight months’ imprisonment. That would result in a starting point for all offending (with the six months for the other offending added) of between two years and ten months to three years and two months’ imprisonment.

Personal mitigating factors

Early guilty plea

[27]              Mr Taylor submits that the 15 per cent discount for Mr Whautere’s guilty plea was too low: the Judge limited the discount on the basis that despite an early guilty plea being entered, the matter took a significant length of time to reach sentencing, due to Mr Whautere failing to appear in Court and absconding on multiple occasions.

[28]              Mr Taylor accepts that Mr Whautere’s conduct prolonged the proceedings but submits he paid the price for this by being remanded in custody pending sentence. He also says that the prolonged proceedings should not have influenced the discount for an early guilty plea, as the early plea avoided significant disclosure and a trial.

[29]              In Manuka v R the Court upheld the District Court’s reduction of an early guilty plea from 20 per cent to 11.6 per cent due to the defendant’s absconding leading to a one-year delay in sentencing.26 Gordon J considered the conduct to be part of the overall circumstances relevant to setting an appropriate discount.27 I agree that matters such as failure to appear cut across the rationale for a guilty plea discount. First, a failure to appear diminishes the value of an early guilty plea on court efficiency. Second, persistent absconding undermines the notion that the defendant is taking responsibility for their actions.

26    Manuka v R [2020] NZHC 1043 at [48]-[54]. Lopa v Police HC Wellington CRI 2010-485-109, 16 November 2011 and Jensen v R [2020] NZHC 726 at [36] also support this approach, although compare Nuku v Police [2015] NZHC 137.

27 Hessel v R [2010] 2 NZLR 298.

[30]              As the Crown points out, here the delay due to the defendant’s conduct is even more significant than in Manuka, being approximately two and a half years. That conduct seriously undermines that Mr Whautere was taking responsibility for his offending. Although disclosure was avoided, there were four pre-sentence reports required and several sentencing dates deferred due to Mr Whautere’s conduct. I do not consider the Judge was wrong to settle on a 15 per cent guilty plea discount. If not appropriately viewed as reduction from the usual discount for an early guilty plea, the conduct and its consequences remained a factor relevant to sentencing.

Other personal discounts

[31]              Mr Taylor was critical of the Judge in apparently rejecting a discount for youth. Mr Taylor also submits that but for Mr Whautere’s methamphetamine addiction, the offending would not have occurred. It is said that Mr Whautere turned to methamphetamine to deal with the pain of losing his grandfather who brought him up, forming a relenting habit that led to criminal offending.

[32]              While accepting that 22-23 years of age is at the upper limit of what may be regarded as youth, Mr Taylor submitted that the combination of Mr Whautere’s loss of his grandfather and drug addiction means that his youth was still a relevant factor at sentencing. Mr Taylor says that these features together with previous good character should have been taken into account.

[33]              Although it is not clear what discount the Judge intended (the Judge refers to 5 per cent), the discount in fact applied for all personal factors was approximately

28.5 per cent. With the 15 per cent for guilty plea, this means that an approximately

13.5 per cent discount applied for other personal factors. Accordingly, the discount is in line with the 15 per cent sought by Mr Whautere in the District Court and what is now sought on appeal. I accept the Crown’s submission that no adjustment is required on this account.

Uplifts

[34]              The Crown emphasises that several of Mr Whautere’s offences were committed while on bail and awaiting sentence.28 No uplift was imposed by the Judge for this. I accept the Crown’s submission that an uplift was available to recognise this aspect.

Overall assessment

[35]              Mr Taylor submits that the end sentence was too harsh, taking into account the other comparative cases and having regard to Mr Whautere being a first time, young offender who has turned to offending to fund a methamphetamine addiction triggered by his grandfather’s death.

[36]              I accept Mr Taylor’s submission that the starting point for the deception offending of three years’ imprisonment was above the available range. Therefore, the starting point of three years’ six months imprisonment for all offending was too high. However, Mr Whautere’s appeal based on discounts applied does not have merit, given that the actual discount applied was close to 30 per cent. The discounts applied sufficiently take into account the personal mitigating factors.

[37]              Arithmetically, applying the same discounts used by the Judge to the lower range of starting points for all offending I considered appropriate29 gives an end sentence of between two years to two years and three months’ imprisonment. The overall sentence needs to be viewed in light of the fact that the Judge did not make any uplift for offending while on bail/pending sentence, however I consider the ultimate two years and six months imposed to be too harsh.

[38]              Standing back, a sentence of two years and two months is appropriate. Although this is only four months different to the sentence imposed by the Judge, it is a relatively significant period relative to the term of the sentence, particularly for a young man. I therefore consider the sentence imposed by Judge McDonald to be manifestly excessive.

28     Obtaining by deception (x1), theft under $600 (x7); receiving (x1), failing to stop (x1), failing to answer bail (x2).

29     Two years and ten months’ to three years and two months’ imprisonment: paragraph [26] above.

Result

[39]              I allow the appeal. I substitute a sentence of two years and two months’ imprisonment for the six deception charges (concurrent). Sentencing on the other charges remains the same.

[40]              I observe that this is close to a two-year sentence which would have been at a level to consider home detention. The most recent pre-sentence report now deems  Mr Whautere not suitable for home detention in light of his level of non-compliance and rehabilitative needs to be addressed. That is an appropriate assessment.

Anderson J