Whelan v Police

[2025] NZHC 2954

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2025-404-000374

[2025] NZHC 2954

BETWEEN

JOHN ALAN WHELAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	6 October 2025
Appearances:	PT Eastwood for Appellant OJ Southern for Respondent
Judgment:	8 October 2025
Reissued:	8 October 2025

[REISSUED] JUDGMENT OF WILKINSON-SMITH J

This judgment was delivered by me on 08 October 2025 at 10 am.

………………………… Registrar/Deputy Registrar

Solicitors:
P Eastwood, Auckland

Kayes Fletcher Walker Ltd, Auckland

WHELAN v NEW ZEALAND POLICE [2025] NZHC 2954 [8 October 2025]

Introduction

[1]    Mr Whelan appeals against a sentence of 19 months’ imprisonment imposed by Judge G A Andrée Wiltens on 17 March 2025 on one charge of burglary.1

[2]    The appellant says that the starting point of 18 months’ imprisonment taken was excessive. He also contends that the credit of 20 per cent for his guilty plea was insufficient and a discount for remorse and an offer to engage in restorative justice should have been applied.   This would lead to an end sentence in the region of      15 months’ imprisonment.

[3]    The appellant also says that he is now in a position to offer reparation of $500 or $1000 in relation to damage caused during the offending.

[4]    The respondent accepts that the 18-month starting point taken for the burglary viewed in isolation was overly stern when compared to similar cases. The respondent says however that, viewed holistically, the end sentence of 19 months’ imprisonment was within range.

Background

[5]    Around midday on 5 February 2025, Mr Whelan entered a residential property in Papatoetoe and circled the house, rummaging through boxes. He took miscellaneous items including a knife. He then entered a carport at the address, smashed the window of a vehicle parked there, entered the vehicle and started rummaging through it.

[6]    The owners called police having seen the appellant on CCTV. Mr Whelan was arrested a short time later.

1      New Zealand Police v Whelan [2025] NZDC 6524.

[7]    At the time of the burglary, Mr Whelan was subject to a sentence of 15 months’ intensive supervision for assaulting police and assault on a person in a family relationship.

[8]    He was also subject to a sentence of 40 hours’ community work for two counts of breaching the intensive supervision sentence.

[9]    Finally, he had an active “come up for sentence if called upon” for theft (under $500).

[10]   The summary of facts for the earlier offending was not available at the time submissions were filed. The Crown had obtained a copy of it by the time of the hearing of this appeal and sought to hand it up. Mr Eastwood for the appellant objected. I proceeded without the earlier summary of facts on the basis that the earlier summary of facts was not before Judge Andrée Wiltens and had been provided at a time when Mr Eastwood could not take instructions.

[11]   The pre-sentence report reveals that Mr Wheelan has an extensive offending history dating back to 1995. He has accumulated a total of 153 prior convictions for “violence, firearms, theft, drug offending, alcohol, driving, dishonesty and non- compliance related offending.”

[12]   Mr Wheelan has previously been subject to community-based sentences, and his history of compliance has been poor.

[13]   The pre-sentence report notes that Mr Wheelan’s compliance with his sentence of intensive supervision had been unsatisfactory in that he had failed to engage and meet his sentence obligations. It also recorded that he had not completed any of his 40 hours of community work.

[14]   The pre-sentence report says that Mr Wheelan acknowledged the fault in his actions but lacked accountability for the offending. Instead, he placed blame for his offending on lack of support afforded to him by government agencies.

[15]   Mr Williams’ offending related factors were assessed as drug use, relationships and attitudes. The report writer says Mr Whelan demonstrates an inability to make well-reasoned and rationalised decisions and had a tendency to act impulsively with a lack of consequential thinking. Furthermore, he takes little to no accountability for his actions. Mr Wheelan was assessed as being at high risk of reoffending and a moderate risk of harm.

[16]The sentence recommended was one of imprisonment.

The District Court decision

[17]The District Court decision is brief, and I set it out in its entirety:

[1]        I am cancelling the sentences of intensive supervision and community work.

[2]        The start point for your offending as Mr Le’Au’Anae has suggested is 18 month[s’] imprisonment.

[3]There is a 20 per cent discount for your plea of guilty.

[4]There is no other discount available.

[5]        Because of your previous convictions I am uplifting the sentence by four and a half months which gets me to a total of 19 months’ imprisonment.

[6]That will be followed by 12 months of post-release conditions.

The approach on appeal

[18]   An appellant may appeal against  sentence  as  of  right  under s  244(1)  of the Criminal Procedure Act 2011.

[19]   This Court must allow the appeal if satisfied that there is an error in the sentence imposed and a different sentence should be imposed.2 Otherwise, the Court must dismiss the appeal.3

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

3      Section 250(3).

[20]   Sentencing is not a science, and an appellate court will generally not intervene unless the end sentence is outside the range that was available to the sentencing judge.4 The Court of Appeal has confirmed that the concept of a “manifestly excessive” sentence continues to apply to appeals against sentence as a means of examining the significance of the error to decide whether a different sentence should be imposed.5

[21]   The focus is ordinarily on the sentence imposed, rather than the process by which the sentence is reached.6 When allowing an appeal on the basis that there was an error in the sentence imposed, the appellate court must set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate; vary the sentence or any part of the sentence or any condition of the sentence; or remit the sentence to the court that imposed it.7

Discussion

[22]   The appellant submits and the respondent concurs that the starting point of  18 months’ imprisonment was too high for one charge of burglary of this nature. I agree.

[23]   This was a low-level burglary which did not involve entry to a dwelling house. It did however involve entry  onto  residential property,  and  damage to  property. Mr Whelan also took a knife from the property.

[24]    Entry onto residential property, even when not into a house, always carries the risk of confrontation with the occupants of the property and for that reason this is properly charged and treated as a burglary. I disagree that it should be treated as a theft or unlawful interference with a motor vehicle as suggested by Mr Eastwood. The fact that Mr Whelan picked up a knife aggravates the situation as the presence of a weapon increases the risk of a violent confrontation. Fortunately, in this case, that did not occur, and I accept that Mr Whelan did not pick up the knife with that purpose.

4      Palmer v R [2016] NZCA 541 at [17]; and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

5      Tutakangahau v R, above n 4, at [32]–[35].

6      Tutakangahau v R, above n 4, at [36].

7      Criminal Procedure Act, s 251(2).

[25]   The Crown says that a starting point of 14 months would be reasonable for the single burglary charge. I think that the appropriate starting point was 12 months.

[26]   In Grey v New Zealand Police, the offender went to a residential address, used a drill to open the lock on a shed at the back of the property, and took four jerry cans and two small tins from the shed before leaving the scene.8

[27]   The Judge in that case adopted a starting point of 12 months’ imprisonment for the burglary offending. The material facts of that offending included that the offending took place in the early afternoon on a weekday when it was unlikely that anyone would be present; that there was some premeditation (as evidenced by the fact that the appellant had used a drill to access the shed); and the fact that the appellant stole items of a relatively low value and caused minimal damage to property. In that case, the appellant also entered residential premises but did not enter the house itself.

[28]   Patangata v New Zealand Police also involved a lead charge of burglary.9   Mr Patangata was driving with an associate and stopped his vehicle outside the victim’s address due to engine issues. Mr Patangata exited the vehicle and forced entry into the victim’s garden shed, stealing a petrol can and weed eater. He placed the weed eater into the boot of the vehicle and poured the fuel into his vehicle before driving off.

[29]   On appeal, the Court held that a starting point of 17 months’ imprisonment, comprising 12 months for the burglary offending and five months for various other offences, was within range — in other words, a starting point of 12 months’ imprisonment was deemed appropriate for the burglary offending.

[30]   In R v Columbus, the lead charge of burglary arose out of offending involving Mr Columbus forcing open the vehicle access door of a garage at a residential property.10 In doing so, he caused damage that cost $672 to repair. Mr Columbus stole a mountain bike, gardening tools and a toolbox. He pawned the bike, but it was subsequently recovered by police.

8      Grey v New Zealand Police [2023] NZHC 2065.

9      Patangata v New Zealand Police [2020] NZHC 407.

10     R v Columbus [2008] NZCA 192.

[31]   On appeal, the Court agreed with the District Court Judge that Mr Columbus’ burglary offending was “at the minor end of the scale”.11 The Court said:12

[The burglary offending] was apparently opportunistic or spontaneous because Mr Columbus wanted quick money. The mountain bike was later recovered. The owner suffered a natural sense of emotional violation and distress and limited financial loss. While we do not in any way diminish the effect on the victim, the circumstances of the burglary would not themselves justify a starting point of more than one year[’s] imprisonment.

[32]   The Court then went on to treat 12 months’ imprisonment as the starting point for Mr Columbus’ burglary offending in determining the appropriate adjusted starting point.

[33]   Had this appeal related only to the burglary charge, I would allow it on the basis that the starting point was too high. However, that is not the end of the matter. Mr Whelan was serving community-based sentences at the time of the burglary. Because the sentencing outcome was one of imprisonment, those sentences of intensive supervision and community work were cancelled.

[34]   Ordinarily a sentence  of  some  sort  would  be  substituted.  Additionally, Mr Whelan’s criminal history required an uplift as did the fact that he was subject to a sentence at the time of the burglary which is an aggravating feature of the burglary and separate to the need for a substituted sentence for that earlier offending.

[35]   In terms of mitigation, the 20 per cent discount for guilty plea no doubt reflected the fact that the appellant was caught essentially red handed and his behaviour was captured on CCTV. A discount short of the full 25 per cent was available. However, there was an offer to attend a restorative justice conference and there was a letter of remorse written. The Judge did not consider whether to apply a discount for remorse. There was no reference to Mr Whelan’s background or cultural factors although, at the appeal hearing, I was advised that he had received compensation for abuse while in state care.

11 At [16].

12 At [16].

[36]   Considering the sentence afresh, the appropriate starting point for the burglary charge was 12 months’ imprisonment rather than the 18 months actually applied.

[37]The 20 per cent discount for guilty plea was appropriate.

[38]   I would apply a further discount of five per cent for remorse, the offer to attend restorative justice and the offer of reparation. I note that the victim impact statement states that the victim accepts that the offender is remorseful and does not seek reparation.

[39]   I have no information about background or cultural factors except what is in the PAC report which is not of assistance to Mr Whelan.

[40]   That would take the adjusted starting point to nine months’ imprisonment. However, there are uplifts which must also be applied.

[41]   For Mr Whelan’s history of offending, I would apply a three-month uplift. The history is significant. It shows that Mr Whelan has continued to offend despite a raft of previous measures taken by the Courts to address the offending behaviour.

[42]   For the fact that the offending occurred while Mr Wheelan was actually subject to sentences of intensive supervision and community work, I would impose a further three-month uplift.

[43]   That would take the sentence to 15 months’ imprisonment which is the sentence contended for by the appellant. However, that also is not the end of the matter.

[44]   A substituted sentence could have been imposed in respect of the charges of assaulting police and assault on a person in a family relationship, as well as the charge of theft (under $500). I have not seen the summary of facts or sentencing notes for any of those matters, but it is clear that any substituted sentence would usually be cumulative. Mr Whelan has not completed any of the 40 hours of community work imposed.

[45]   The appropriate level of that sentence is difficult to assess. I consider that four months’ imprisonment as a substituted sentence for 15 months’ intensive supervision and 40 hours community work is high in circumstances where an uplift for offending while subject to sentence has already been applied, and the sentence of imprisonment will include a further 12 months of release conditions which is somewhat similar to a sentence of intensive supervision.

[46]   On the other hand, an additional four months may be within the available range, particularly when the underlying charges included assault on a police officer and family violence. The appellant can also expect some sanction for the theft (under

$500) for which he was to come up for sentence if called upon. The current offences are also dishonesty offences. A sentence of come up if called upon is supposed to support rehabilitation, as is a sentence of intensive supervision. Mr Whelan has not taken that opportunity when offered. If he continues to offend while subject to community-based sentences, the only real option for the Court is imprisonment. However, the Judge in the sentencing decision under appeal was not asked to resentence on the theft charge.

[47]   On the information available, I have come to the view that the end sentence reached by the District Court Judge was manifestly excessive.

[48]   The starting point taken for the burglary was six months too high. While the end sentence of 19 months might be reached by the imposition of a substituted sentence for the earlier offending, there is no information before me to justify a substituted sentence of four months’ imprisonment for 40 hours of community work and 15 months’ intensive supervision. Forty hours is a very modest amount of community work. I consider that the imposition of 12 months release conditions reflects in part the ongoing need for supervision and the cancellation of the sentence of intensive supervision.

Result

[49]The appeal is allowed.

[50]The sentence of 19 months’ imprisonment is quashed.

[51]   A sentence of 15 months’ imprisonment is  substituted  to  be  followed  by 12 months of post release conditions being the standard conditions and the following special conditions recommended in the Provision of Advice to Courts report:

(a)Not to possess, consume or use any alcohol or drugs not prescribed.

(b)To attend an assessment for a drug and alcohol programme as directed by a probation officer. To attend any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of the probation officer.

(c)To attend and complete any program and/or counselling deemed suitable by a probation officer.

[52]The conditions will apply for 12 months following release.

[53]   When a sentence of imprisonment of two years or less is imposed, release is automatic after half of the sentence is served. Standard and special conditions can apply for up to six months following the sentence expiry date.

[54]   Twelve months of post release conditions on a sentence of 15 months’ imprisonment means that the post release conditions will continue for a period of four months and two weeks past the sentence expiry date.

Wilkinson-Smith J