Whichman v Police - [2012] NZHC 2697

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-424 [2012] NZHC 2697

GEORGE WHICHMAN
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 15 October 2012

Counsel: P Eastwood for the Appellant
W Fotherby for the Respondent

Judgment: 15 October 2012

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors / Counsel:
Mr P Eastwood, Barrister, Auckland
Mr W Fotherby, Meredith Connell, Office of the Crown Solicitor, Auckland

WHICHMAN V POLICE HC AK CRI-2011-404-424 [15 October 2012]

[1] Mr Whichman appeals against the longest sentences imposed when sentences were imposed for over 20 offences. These were dealt with in five sets. The result was a total end sentence, or an effective end sentence, of 4 years 3 months imprisonment.

[2] The sentences were imposed on 4 March 2011. The matter has taken this long to get to a hearing on the appeal for a number of reasons, which I do not need to go into in any great detail. However, I think the initial problem may have been that some of the sentences resulted from charges laid summarily and some more charges laid indictably. In the first instance it seems that Mr Whichman lodged an appeal on his own behalf and lodged it with the Court of Appeal. That took a while to be sorted out and the difficulties compounded over time.

[3] The sentences were dealt with in two sentencing decisions of Judge Winter.1

One was for the charges that had been laid summarily and the other for the charges that had been laid indictably. I will outline the offences and some of the relevant facts broadly in the sequence in which the Judge dealt with them.

Summary charge of burglary – CRN 10004020364

[4] The facts were recorded by the Judge as follows:

[3] … [At] about 2.50 pm on Friday 18 June 2010 the defendant made his way to the property, gained entry by smashing the front door handle, breaking the lock and door, entered the house, tipped it up particularly in the living area, study, bedrooms and drawers. Whilst in the house he uplifted jewellery, an LCD television, a video recorder and a black leather handbag containing a driver’s licence and credit and bank cards.

[4] A scene examination by the police, forensics division, located blood on an internal doorframe that linked the defendant to the offending. The defendant made no previous comment but, having taken instruction, pleaded guilty.

[5] He then said, in assessing the sentence:

1 R v Whichman DC Manukau CRI-2010-092-010761, 4 March 2011 and R v Whichman DC Manukau
CRI-2010-029-001128, 4 March 2011.

[6] I keep in mind the learned guidance from the decision of R v Senior (2000) 18 CRNZ 340. Clearly, Mr Wichman [sic], bearing in mind his previous history which is admitted and including additional burglaries which are shortly to be the subject of this indictable sentencing for which he has already pleaded guilty, is a recidivist burglar. Recidivist burglars have a starting point of imprisonment of three years. From that might be…

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 [2012] NZHC 2697
Case: [2012] NZHC 2697
Decision Date: 15 October 2012

CaseChat Overview and Summary

George Whichman appeals against the sentences imposed for over 20 offences, resulting in an end sentence of 4 years 3 months imprisonment. The sentences were imposed for five sets of offences, comprising summary and indictable charges. The appeal concerns the length of the sentences and the method used to calculate them. The core of the appeal is the argument that the sentence of 4 years and 3 months is manifestly excessive for a 20-year-old man with a history of previous convictions. The appeal also challenges the method used to calculate the sentences, arguing that the Judge erred by adding together three sets of sentences and then applying the total to one offence.

The court considered the appropriate starting points for the lead offences in each group of indictable charges, the maximum penalties applicable, and the effect of the guilty pleas. The court held that the starting point of 2 years fixed by the Judge for the aggravated assault was well within range. For the cannabis offences, the court found the appropriate starting point to be 10 months imprisonment. For the receiving offences, the court determined the starting point should be at least 12 months. The court then reassessed the case, treating the aggravated assault as the lead offence and imposing concurrent sentences. The total effective sentence imposed was 2 years and 6 months imprisonment. The court allowed the appeal and substituted the sentence for aggravated assault and other offences, resulting in a total effective sentence of 2 years and 6 months imprisonment.

Orders