Whitaker v Police - [2016] NZHC 232

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-000127

CRI-2015-409-000128 [2016] NZHC 232

BETWEEN
TYREN WILLIAM WHITAKER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 16 February 2016

Appearances:

D J Matthews for the Appellant
C E Martyn for the Respondent

Judgment:

22 February 2016

JUDGMENT OF NATION J

Background

[1] On 14 December 2015, Judge AA Couch sentenced Mr Whitaker to seven months’ home detention on 16 charges of accessing a computer system for a dishonest purpose, one charge of obtaining by deception, and one charge of male assaults female.1

[2] All of the dishonesty offences arise out of transactions on TradeMe. In late

2014, Mr Whitaker and his co-offender, Ms Stewart, entered into 17 fraudulent transactions with unsuspecting people who were the highest bidders in online auctions. They advertised items for sale which they did not possess. They did so using false names. In each case, they received payment but provided no goods to any of the buyers. The total value obtained was $2,902.33. Mr Whitaker and Ms
Stewart used this money for living expenses.

1 New Zealand Police v Whitaker [2015] NZDC 24887.

WHITAKER v POLICE [2016] NZHC 232 [22 February 2016]

[3] Mr Whitaker’s male assaults female charge occurred while he and Ms Stewart were living together. When Mr Whitaker discovered Ms Stewart looking through messages on his phone, he bent the fingers of her hand back painfully and for some time. This caused soft-tissue injuries which required her hand and wrist to be put in a plaster cast.

[4] Mr Whitaker now appeals on the basis that the end sentence was manifestly excessive because:

(a) the starting point for the dishonesty offending was too high; and

(b)the Judge erred in concluding that a sentence of community detention, community work and supervision would not achieve the statutory purposes of sentencing.

Approach on appeal

[5] Section 250 of the Criminal Procedure Act 2011 requires that the appeal be allowed if I am satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.2 I must dismiss the appeal in
any other case.3 To allow the appeal, I must be satisfied that the sentence imposed

was “manifestly excessive”.4 As has been stated:5

The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than by the process by which the sentence is reached.

Judge Couch’s sentencing

[6] After recounting the factual background of Mr Whitaker and Ms Stewart’s 17 joint charges, Judge Couch described these as “serious offences”. Noting the maximum penalty of seven years’ imprisonment, his Honour held that the gravity of
this offending was “well up the scale”. He described it as “a well organised scheme

2      Criminal Procedure Act 2011, s 250(2).
3      Criminal Procedure Act 2011, s 250(3).
4      Tutakangahau v R [2014] NZCA 279, [2014]…

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 Whitaker v Police

Details

AGLC: Whitaker v Police [2016] NZHC 232
Case: [2016] NZHC 232
Decision Date: 22 February 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Tyren William Whitaker appealed against his conviction and sentence for multiple charges of accessing a computer system for a dishonest purpose, obtaining by deception, and male assaults female. The appeal centred on whether the sentence of seven months' home detention was manifestly excessive. The court considered whether the starting point for the dishonesty offences was too high and if the sentence of community detention, community work, and supervision would have been sufficient.

The court reviewed the sentencing principles relevant to dishonesty offences, focusing on the culpability and the statutory purposes of sentencing. It noted that while the starting point for the offending was at the higher end of the range, it was still within the available range given the nature of the offences. The court also examined whether a less restrictive sentence would have been more rehabilitative, considering the problematic relationship between the appellant and his co-offender. The court concluded that Judge Couch was entitled to conclude that a composite community-based sentence would not achieve the most appropriate purposes of the Sentencing Act, and that home detention was the least restrictive outcome appropriate in the circumstances. Therefore, the appeal was dismissed.

The final orders were that the appeal be dismissed, and the original sentence of seven months' home detention stand affirmed.

Orders