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…

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 Whelan v Police

Details

AGLC: Whelan v Police [2025] NZHC 2954
Case: [2025] NZHC 2954
Decision Date: 8 October 2025

CaseChat Overview and Summary

The appellant, John Alan Whelan, appeals against a sentence of 19 months’ imprisonment imposed by Judge G A Andrée Wiltens on 17 March 2025 for one charge of burglary. Whelan argues that the starting point of 18 months’ imprisonment was excessive and that a discount for his guilty plea was insufficient. He contends that a discount for remorse and an offer to engage in restorative justice should have been applied, leading to a sentence in the region of 15 months’ imprisonment. The respondent accepts that the starting point was overly stern when compared to similar cases but contends that the end sentence of 19 months’ imprisonment was within range.

The legal issues the court had to decide included whether the starting point for the burglary was too high, whether the discount for the guilty plea was appropriate, and whether a discount for remorse and an offer to attend a restorative justice conference should have been applied. The court also had to consider whether the sentence imposed was manifestly excessive and whether a substituted sentence for the earlier offending was justified.

The court found that the starting point of 18 months’ imprisonment was indeed too high for the burglary charge, which was a low-level burglary without entry into a dwelling house. The court determined that a starting point of 12 months’ imprisonment was more appropriate. While the 20 per cent discount for the guilty plea was appropriate, the court found that a further discount of five per cent for remorse, the offer to attend a restorative justice conference, and the offer of reparation should have been applied. The court further found that the end sentence of 19 months’ imprisonment was manifestly excessive.

The court substituted a sentence of 15 months’ imprisonment to be followed by 12 months of post-release conditions, including standard conditions and special conditions recommended in the Provision of Advice to Courts report. These special conditions include prohibitions on alcohol and drug use, attendance at a drug and alcohol programme assessment, and completion of any recommended counselling, treatment, or programme as directed by a probation officer. The appeal was allowed, and the original sentence was quashed.

Orders