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Whichman v The the Queen

Whichman v The the Queen

Case [2022] NZHC 1223 30 May 2022

Appeal

Sentencing

Guilty Plea

Rehabilitative Efforts

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-102

[2022] NZHC 1223

BETWEEN
GEORGE WHICHMAN

Appellant

AND

THE QUEEN

Respondent

Hearing: 27 May 2022

Appearances:

Appellant in person

H Brown for Respondent

Judgment:

30 May 2022

REASONS JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Monday, 30 May 2022 at 12:30 pm.

Registrar/Deputy Registrar

Solicitors: Meredith Connell (Office of the Crown Solicitor), Auckland

Copy to: Appellant

WHICHMAN v R [2022] NZHC 1223 [30 May 2022]

Introduction

[1] Mr Whichman appeals against his sentence of 11 months’ home detention imposed by Judge M Pecotic in the Auckland District Court on 23 March 2022.1 He had pleaded guilty to the following offending:

(a)burglary;2

(b)assault with a weapon;3

(c)strangulation;4 and

(d)injuring with intent.5

[2] He appeals on the ground that the sentence is manifestly excessive. In summary, he submits that the Judge gave inadequate discounts for his personal mitigating circumstances and failed to recognise the hardship caused to himself and his partner as a result of the sentence.

The offending

[3] Mr Whichman and the victim are partners. At the time of the offending, they lived together in an apartment at an address in Waterview.

[4] At 11:30 am on 17 June 2021, Police were called to a family harm-related incident at the address. A Police Safety Order was served on Mr Whichman, which was in force for 48 hours.

[5] At about 3:30 am on 18 June 2021, Mr Whichman returned to the address. He entered the apartment by climbing onto the second storey balcony and then opening a sliding door.

1      R v Whichman [2022] NZDC 5008.
2      Crimes Act 1961, s 231(1)(a). Maximum penalty 10 years’ imprisonment.
3      Crimes At 1961, s 202C. Maximum penalty five years’ imprisonment.
4      Crimes Act 1961, s 189A(b). Maximum penalty seven years’ imprisonment.
5      Crimes Act 1961, s 188(2). Maximum penalty seven years’ imprisonment.

[6] Once inside he punched his partner with a closed fist multiple times in her head and face. He picked up a chair and threw it at her. The chair struck her in the back as she was trying to get away from him.

[7] Mr Whichman then held his partner down in the bedroom, putting both his hands around her neck. He applied pressure to her neck so that she was unable to breathe. This caused her to lose consciousness for a short period.

[8] When she regained consciousness, she tried to escape into the bathroom. Mr Whichman followed her and struck her once more in the head. She again lost consciousness for a brief time before coming to and vomiting on the bathroom floor. The assault continued for approximately 15 minutes before she was able to leave the apartment. Mr Whichman chased her onto the street. She managed to wave down a passing Police patrol. He was located metres away from her and arrested.

[9] Mr Whichman’s partner was hospitalised as a result of 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 The the Queen

Details

AGLC: Whichman v The the Queen [2022] NZHC 1223
Case: [2022] NZHC 1223
Decision Date: 30 May 2022

CaseChat Overview and Summary

In this case, George Whichman appeals against the sentence of 11 months' home detention imposed on him by Judge M Pecotic in the Auckland District Court on 23 March 2022. He had pleaded guilty to burglary, assault with a weapon, strangulation, and injuring with intent. The appeal was heard on 27 May 2022 and the judgment was delivered by Woolford J on 30 May 2022. The legal issues the court was required to decide were whether the sentence was manifestly excessive, and whether the Judge gave inadequate discounts for Mr Whichman's personal mitigating circumstances and failed to recognise the hardship caused to himself and his partner as a result of the sentence. The court found that the Judge had given appropriate discounts for Mr Whichman's guilty pleas, cultural report and rehabilitation efforts, and restorative justice outcome, remorse and payment of $10,000 to the victim. However, the court found that the sentence should have been reduced by a further four months to reflect the five months Mr Whichman remained in custody. The appeal was allowed and the sentence was reduced to five months and three weeks' home detention on all four charges.

The final orders of the court were that the appeal is allowed, the sentence of 11 months' home detention on all four charges is quashed and replaced with a sentence of five months and three weeks' home detention on all four charges. The appellant was ordered to pay the costs of the appeal.

Orders