Whichman v Police - [2019] NZHC 3245

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-497

[2019] NZHC 3245

UNDER Criminal Procedure Act 2011

IN THE MATTER

of an appeal against sentence

BETWEEN

GEORGE WHICHMAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 10 December 2019

Appearances:

Appellant in person with Ms H Rogers as McKenzie Friend A Wills for the Respondent

Judgment:

10 December 2019

JUDGMENT OF GAULT J

This judgment was delivered by me on 10 December 2019 at 4:45 p.m. pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Parties / Solicitors:
The appellant, C/o Mt Eden Prison, Auckland
Mr H Steele and Ms A Wills, Meredith Connell, Office of the Crown Solicitor, Auckland

WHICHMAN v POLICE [2019] NZHC 3245 [10 December 2019]

[1] Mr Whichman appeals against his sentence for common assault.1 He pleaded guilty and was sentenced by Judge J Jelas in the Waitakere District Court to six months’ imprisonment.2

Summary of facts

[2] On the night of 13 October 2019, Mr Whichman was an at address in Glen Eden. It was an address operated by the Man Up programme, where he was working as a property manager. The complainant was staying at the address and sleeping on the couch. Around 10:00 pm, Mr Whichman began yelling at her, and they argued. He yelled something to the effect of “keep talking like that and I’ll drag you out of this house myself”. He grabbed her and threw her to the ground, then pulled her through the lounge onto the veranda, causing her to hit her head and right ankle on the door as he dragged her through it. While there, he pulled her up by her hoody before pushing her into the veranda railing. Another person intervened, and Mr Whichman then left the address. The complainant sustained bruising to her right calf and grazes to her back, as well as a headache.

[3] Mr Whichman says the argument began because the complainant had broken the house rules by smoking methamphetamine at the address and stealing clothes from other tenants. He says, supported by an affidavit from another tenant, that she became aggressive and approached him in an aggressive manner when he confronted her about this, which is what led to the assault. He says he did not intend to hurt her, and that he was in part trying to defend himself. She was apparently on bail for alleged offending involving grievous bodily harm and is currently in custody on remand. They have now, he says, reconciled their differences.

[4] Mr Whichman pleaded guilty on 21 October 2019, it seems at or near to the first opportunity.

1 Crimes Act 1961, s 196. Maximum penalty one year’s imprisonment.
2 New Zealand Police v Whichman [2019] NZDC 23134.

District Court decision

[5]Judge Jelas characterised Mr Whichman’s offending as follows:3

My view of the summary of facts is that it was an unprovoked assault upon a tenant who was asleep at 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 Whichman v Police

Details

AGLC: Whichman v Police [2019] NZHC 3245
Case: [2019] NZHC 3245
Decision Date: 10 December 2019

CaseChat Overview and Summary

George Whichman appealed against his sentence for common assault, which was imposed by Judge Jelas in the Waitakere District Court. The appellant was sentenced to six months’ imprisonment for assaulting a tenant at an address he was managing for the Man Up programme. The appeal was heard by Gault J in the High Court of New Zealand at Auckland. The respondent, New Zealand Police, was represented by Ms A Wills. The appellant, in person, was assisted by McKenzie Friend Ms H Rogers.

The legal issues that the court was required to decide included whether the starting point for the sentence was appropriate, whether an uplift was warranted, whether any discounts were appropriate, and whether the sentence was manifestly excessive. The court also considered whether the appellant had a fair hearing and whether post release conditions were appropriate.

The court found that the starting point for the sentence was in the available range, although a starting point of five months may have been more appropriate. The court found that an uplift was not warranted given the appellant’s prospects of rehabilitation and reintegration. The court found that some discount could have been given for prospects of rehabilitation, given the appellant’s employment and offers of support from the Man Up programme and his family. The court found that the sentence was manifestly excessive, and that reducing a six month sentence by two or three months was not tinkering with the sentence. The court found that there was no fair hearing issue and that post release conditions were appropriate, although one condition was varied to better balance the respondent’s concern and the appellant’s prospects of rehabilitation.

The court allowed the appeal and substituted a sentence of three-and-a-half months’ imprisonment. The employment condition was varied in accordance with paragraph [41].

Orders