Wheeler v The Queen - [2018] NZHC 356

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-000412

[2018] NZHC 356

BETWEEN
MICHELLE ESDALE WHEELER

Appellant

AND

THE QUEEN

Respondent

Hearing: 5 February 2018 and 8 March 2018

Appearances:

A Ives for the Appellant (on 8 March 2018)

O Klaassen for the Respondent (on 8 March 2018)

Judgment:

8 March 2018

JUDGMENT OF HINTON J

Counsel/Solicitors:
Annabel Ives, Barrister, Auckland Meredith Connell, Auckland

WHEELER v R [2018] NZHC 356 [8 March 2018]

[1] This is an appeal against sentence and in particular, an appeal against a refusal to commute a sentence of imprisonment to home detention.

Facts

[2] At 5.00 pm on 6 February 2017, Ms Wheeler uplifted a purple Michael Kors handbag from The Brand Warehouse on High Street in Auckland. As she was exiting the store the bag was spotted by an employee, a struggle ensued and an associate, Mr Morrison, punched the employee in the side of the head, after which both made their escape with the bag.

[3] Ms Wheeler was later located in a Greenlane carpark by Police. She was arrested. The vehicle she had escaped in was searched and the bag was recovered, albeit in a damaged state.

[4] At 1.20 am on 23 April 2017, a burglary took place in Birkdale. At 9.55 am that day, Ms Wheeler entered a Mobil petrol station in Glenfield. Using a Mobil credit card, that was stolen from the address which had been burgled, she purchased car oil to the value of $36.48.

[5] On 23 April 2017, at approximately 10.10 am, Ms Wheeler entered a second petrol station and again purchased car oil worth $51.98, using the same stolen card. On both occasions, she did not have permission to use the Mobil credit card.

[6] At approximately 11.00 pm on 4 May 2017, Ms Wheeler drove a motor vehicle on Hibiscus Coast Highway in Silverdale. A warrant for the search of the vehicle was invoked. An amount of cannabis was located in the car.

[7] On 11 May 2017, the Police, with a warrant, conducted a search of Ms Wheeler’s home in Beach Haven. There they located 0.2 grams of methamphetamine in her purse and 0.8 grams of methamphetamine inside her vehicle, a total of one gram.

[8] On 23 April 2017, a builder, who had been working at Beach Haven Primary School noted that his work tools, including a Hitachi dual driver kit and various

attachments, had been stolen during a burglary of that school. The value of the kit was approximately $900. Also, sometime between 3.00 pm on 22 April 2017 and 10.20 am on 24 April 2017, a burglary occurred at Birkenhead College. The stolen items included a Makita circular saw, a Fuller tool bag, measuring tape, chisel set, a 50-inch Sony television and two portable hard drives. The value of these items was $1,667. Ms Wheeler’s property was searched by Police on 11 May 2017. During that search, they located the…

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 Wheeler v The Queen

Details

AGLC: Wheeler v The Queen [2018] NZHC 356
Case: [2018] NZHC 356
Decision Date: 8 March 2018

CaseChat Overview and Summary

Michelle Esdale Wheeler appeals her sentence of 14 months' imprisonment, arguing that the District Court erred in its sentencing determinations. The appeal focuses on the starting point for sentencing, the application of the totality principle, credit for guilty pleas, and the refusal to impose home detention instead of imprisonment. The High Court, considering the arguments and the evidence presented, finds that while the drug sentence was appropriate, the starting point for the dishonesty charges was too high. The Court also found that the totality of the sentence did not result in a period of imprisonment wholly disproportionate to the gravity of the offending. However, the Court was persuaded that the refusal to impose home detention was an error, as the conditions for home detention could be met with appropriate safeguards. The Court commutes the sentence to six months' home detention, with conditions tailored to address Ms Wheeler's offending-related factors and ensure community protection. The appeal is allowed, and the sentence of imprisonment is quashed, replaced with a sentence of six months' home detention.

Orders