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…

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: [2025] NZHC 447
Decision Date: 11 March 2025

CaseChat Overview and Summary

Riwai Whautere appealed against his two and a half-year sentence for multiple counts of obtaining by deception, receiving property over $1,000, driving while suspended, failing to stop, failing to answer District Court bail, shoplifting, and theft. Whautere argued that 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 High Court allowed the appeal, finding that the starting point was above the available range and the overall sentence was manifestly excessive. The Court substituted a sentence of two years and two months’ imprisonment for the six deception charges, with the remaining sentencing remaining unchanged.

The Court first assessed the starting point for the deception offending. Whautere's offending involved doctoring screenshots of bank statements to indicate payments for goods sold online, then collecting the goods without actually making the payments. The Crown argued that the three-year starting point was within range relative to similar cases, but the Court found that Whautere's offending did not require materially greater sophistication or premeditation than cases with a lower starting point. The Court found a starting point of between two years four months’ to two years eight months’ imprisonment was appropriate.

The Court next considered the discounts applied for personal mitigating factors. Whautere's counsel argued that the 15 per cent discount for his early guilty plea was too low, but the Court found that Whautere's conduct in prolonging the proceedings by failing to appear and absconding justified the lower discount. The Court found that the approximately 30 per cent overall discount for personal factors sufficiently took into account Whautere's youth, background, and addiction issues.

Given the lower appropriate starting point and the sufficient discount applied, the Court found that the two and a half-year sentence imposed was manifestly excessive. The Court substituted a sentence of two years and two months’ imprisonment for the deception charges, which was close to a two-year sentence that would have warranted consideration of home detention. However, the pre-sentence report found Whautere unsuitable for home detention given his non-compliance and rehabilitative needs.

Orders