Whichman v The King
[2025] NZHC 1573
•13 June 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2025-404-000008
[2025] NZHC 1573
BETWEEN GEORGE WHICHMAN
Appellant
AND
THE KING
Respondent
Hearing: 6 May 2025 Appearances:
Appellant in person
S J Cox for Respondent
Judgment:
13 June 2025
JUDGMENT OF BREWER J
This judgment was delivered by me on 13 June 2025 at 3.30 pm
Registrar/Deputy Registrar
Solicitors:
Kayes Fletcher Walker (Manukau) for Respondent
Copy to Appellant in person
WHICHMAN v R [2025] NZHC 1573 [13 June 2025]
Introduction
[1] Mr Whichman appeals his sentence of 22 months’ imprisonment imposed on him by Judge D J McNaughton on four charges: dishonestly using a document, using a false passport, failing to answer bail and possession of ecstasy.1 He submits that, having regard to comparator cases, the sentence is manifestly excessive.
[2] I must allow Mr Whichman’s appeal if there is an error in his sentence such that a different sentence should be imposed.2
The Judge’s decision
[3]I take the factual background from the Judge’s sentencing notes:
[2] In April last year you created an unverified RealMe account in your brother’s name, Rudolf Whichman and using his details you spoke to Customs Services purporting to be your brother and providing false details and gained access to the unverified RealMe account. In order to get the account verified you provided your brother’s birth certificate.
[3] Later that month you went to VTNZ to apply for a replacement driver’s licence. You presented the driver licence card of your brother and using those details filled in an application for replacement driver’s licence. The person who served you then took your photo. You paid for a new driver’s licence which now contained your photo, but your brother’s details.
[4] On 8 May you applied to verify his RealMe account and that was accepted. You then used that verified RealMe account to apply under urgency for a New Zealand passport in your brother’s name, again using your photograph. That application was successful and a passport was delivered to you. On that same day you were due to appear in court. Instead on 20 May you arrived at Auckland International Airport about to get on a flight to Rarotonga. You managed to get through the Customs smart gate and into the departures hall using your brother’s name and the false passport, but when you saw aviation security approaching, you took off.
[5] It was some months later before you were located and arrested and you had a small quantity of ecstasy, just two pills in your pocket. You have a fairly extensive criminal history which goes back to Youth Court appearances in 2005.
[4]The Judge had regard to the cases cited by the Crown and by Mr Whichman.3
1 R v Whichman [2024] NZDC 31899.
2 Criminal Procedure Act 2011, s 250(2).
3 R v Lum DC Manukau CRI-2011-092-5980, 19 August 2011; Farley v R [2017] NZCA 97; R v Kirkland [2006] HC Rotorua CRI-2006-092-8020, 3 August 2006; and Burns v Police HC Wellington CRI-2005-485-125, 25 October 2005.
[5] The Judge adopted a starting point of two-and-a-half years’ imprisonment and applied an uplift of two months to account for Mr Whichman’s criminal history.
[6] As to discounts, the Judge allowed 25 per cent for early pleas of guilty and deducted two months for remorse. The end sentence of 22 months was applied to the charges of dishonestly using a document and using a false passport. Mr Whichman was convicted and discharged on the charges of failing to answer bail and possession of ecstasy.4
The appeal
[7] Mr Whichman relies on three cases. The first is R v Lum.5 Mr Lum obtained multiple false passports and used them to travel on nine separate occasions. He pleaded guilty and appeared for sentencing as a first offender. His explanation for his offending was that he needed false passports to visit his sick mother in Singapore because if he had used his own he would have been arrested for avoiding compulsory military service. He was positively assessed in the pre-sentence report.
[8] The District Court Judge adopted a starting point of two-and-a-half years, taking account of all the personal mitigating factors (which were significant), and provided a 25 per cent discount for pleas of guilty.
[9] The second case is R v Kirkland.6 Mr Kirkland was sentenced on a raft of charges including making false representations for the purpose of obtaining a passport, possession of a false passport and presenting the false passport. His explanation was that he applied for a passport in his brother’s name so he could go to Australia, being of the view that his criminal history would result in him being denied entry if he had used his own passport. He used the false passport to travel to and from Australia.
[10] Justice Baragwanath adopted a starting point of two years’ imprisonment on the passport charges.
4 In fact, Mr Whichman had already been convicted and discharged on these charges at an earlier hearing before another judge.
5 R v Lum, above n 3.
6 R v Kirkland, above n 3.
[11] The third case is Burns v Police.7 Mr Burns, an American citizen, obtained a false passport for his four-year-old daughter. He had concerns for the welfare of his daughter, who was in the custody of her mother. Mr Burns used the false passport to bring his daughter to New Zealand. He was sentenced to 14 months’ imprisonment in the District Court and appealed that sentence.
[12] It was submitted to MacKenzie J on appeal that the District Court Judge’s starting point of two years was manifestly excessive. Justice MacKenzie did not accept that submission, finding the starting point to be within the available range. The appeal was dismissed.
[13] Mr Whichman’s submission is that all these cases disclose offending worse than his: Mr Lum obtained multiple false passports and used them to travel on nine occasions; Mr Kirkland was on bail when he obtained his false passport and actually used it to travel; and Mr Burns also used the false passport he obtained to bring his young daughter into New Zealand.
[14] Mr Whichman submits that he, in contrast, did not use his false passport to travel overseas. He complains also that the defendants in the cited cases all received discounts which resulted in lesser sentences than the one he received.
[15] Further, Mr Whichman submits that the culpability of the said defendants is higher than his own because of the sophistication of their methods for obtaining false passports. Mr Whichman says he had his brother’s permission to use his driver’s licence and all he did was get a new licence using his own photograph as a means to applying for the passport.
Discussion
[16] There is no guideline judgment for offending involving passport fraud. Comparator cases can be broadly relevant, but the factual and personal factors going to culpability can vary widely; as Mr Whichman’s three cases demonstrate.
7 Burns v Police, above n 3.
[17] So, I approach Mr Whichman’s appeal on first principles. First, I note the maximum penalty for using a false passport is 10 years’ imprisonment and/or a fine of
$250,000.8 The maximum penalty for dishonest use of a document is seven years’
imprisonment.9
[18]I accept the Crown’s submission as to the aggravating features:
9.3The alleged offending involved the following aggravating features:
(a)Attempt to escape justice: The appellant admitted in his Police DVD interview that the reason he applied for the driver licence and passport was so that he could flee the country in order to avoid Police apprehension. This came after an alleged incident in which the appellant and others impersonated Police to commit a serious home invasion with firearms.
(b)Premeditation: The alleged offending occurred step-by-step over the course of several weeks. The plan was put into motion on 13 April 2023, when the appellant created an unverified RealMe account in his brother’s name. He went to VTNZ to obtain the driver licence on 27 April 2023. He submitted his brother’s birth certificate and then went to an AA office with the false driver licence to get his RealMe account falsely verified—and with that, he applied for the false passport under urgency.
(c)Sophistication: The appellant’s overall fraudulent scheme involved several discrete steps to machinate the issuing of the false passport. While not particularly complex, it could not be described as simple.
[19] I add that the charge of using the false passport was in the context of attempting to leave the country, having passed through the Customs “Smartgate” into the departures hall at the international terminal with a ticket to go to Rarotonga. He had failed to answer to his bail on other charges that same day.
[20] Having regard to the aggravating features, I find that the starting point of two-and-a-half years’ imprisonment was at the lowest end of the available range.
[21] The uplift of two months for Mr Whichman’s criminal history was light. Mr Whichman’s history is summarised by the Crown:
8 Passport Act 1992, s 29A.
9 Crimes Act 1961, s 228(1)(b).
9.23Turning to the present case, the appellant had accumulated approximately 135 previous convictions at the time of sentencing, spanning from 2007-2024. … For ease of reference they are as follows:
(a)Six counts of impersonating Police in 2014, 2015, and 2020.
(b)Two counts of being a driver and giving false information as to his identity in 2022 and 2008.
(c)Two counts of obtaining by deception in 2007 and 2014.
(d)Two counts of escaping lawful custody in 2007.
[22]An uplift of four to six months would have been within range.10
[23] The discount of 25 per cent for entering guilty pleas was very generous indeed. As the Crown submits:
9.30The appellant first appeared on these charges on 13 October 2023. A guilty plea was entered on 22 October 2024. This was over a year after the charges were first laid. Over this time:
(a)a sentence indication was sought on the charges as they now stand (and declined);
(b)a pre-trial for the charges to be dismissed was set down (and abandoned); and
(c)a standby trial date was scheduled (and vacated 3 weeks beforehand, when guilty pleas were entered).
[24]Another Judge might well have given a discount of 10 per cent.
[25] I will not criticise the Judge’s discount of two months for remorse, although another Judge might have considered Mr Whichman’s history as disqualifying.
[26] There is one further matter. Mr Whichman was effectively time-served when he was sentenced. Judge McNaughton knew that. He said:
[12] … That means an end sentence on the major charges, charges one and three of 22 months with standard release conditions of six months after that expires, which will be now, given you have 12 months in custody.
10 Mr Whichman submitted that the uplift amounted to double jeopardy. But that is simply not the law.
[27] Mr Whichman complains that this condition sets him up to fail because he never complies with such conditions and they do not help him. That is as may be. Nevertheless, there is no principled basis for disturbing that aspect of the Judge’s decision.
Decision
[28] There is no error in the sentence such that a different sentence should be imposed. The sentence is not manifestly excessive. It is light.
[29]The appeal is dismissed.
Brewer J
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