Whitehead v Police - [2021] NZHC 3421

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-485-75

[2021] NZHC 3421

BETWEEN
SHANE COLIN WHITEHEAD

Appellant

AND

POLICE

Respondent

Hearing: 23 November 2021 via VMR

Appearances:

O Crosse for Appellant N Azam for Respondent

Judgment:

14 December 2021

JUDGMENT OF CULL J

[1] On 12 October 2021, Mr Whitehead pleaded guilty to a representative charge of accessing a computer system without authorisation.1 The Judge ordered him to come up for sentence if called upon within 12 months and imposed a Protection Order.2 The appeal concerns the imposition of the Protection Order only.

The offending

[2] Between 17 January to 16 February 2021, Mr Whitehead logged into the victim’s Snapchat account 156 times through his own mobile phone. Mr Whitehead had previously been in a relationship with the victim for approximately two and a half years. This relationship was intermittent before ending just prior to the offending. The victim’s username and password had been pre-saved on Mr Whitehead’s phone, allowing him to access the account by simply clicking on the phone application.

1 Crimes Act 1961, s 252(2); maximum penalty two years’ imprisonment.
2 Police v Whitehead [2021] NZDC 20574.

WHITEHEAD v POLICE [2021] NZHC 3421 [14 December 2021]

[3] On one occasion, in which Mr Whitehead accessed the victim’s Snapchat account, he took screenshots of an intimate conversation between the victim and another, and sent these to a mutual friend. He originally faced an additional charge of causing harm by posting digital communications,3 but this charge was withdrawn following discussions with the prosecution.

District Court decision

[4] The Judge observed that while Mr Whitehead’s conduct did not involve any physical violence, it was still very intrusive, evinced by the victim’s ongoing distress.4

[5] The Judge imposed the Protection Order because of the proximity between Mr Whitehead and the victim’s social circles. As noted in the victim’s impact statement, the pair live in the same remote coastal suburb in Wellington, train at the same sports club, and often go to the same sports events and meetings. The victim made it clear that she did not want any further contact from Mr Whitehead, and did not want to see him at sports events.

[6] The Judge was not convinced that the making of a Protection Order would unreasonably interfere with Mr Whitehead’s sport and recreational activities. He observed that any “faint risk” of intrusion into his personal life was outweighed by the need to provide the victim with assurance she will not have to interact with Mr Whitehead again.5

Approach on appeal

[7] Under s 250 of the Criminal Procedure Act 2011, the appeal must be allowed if this Court is satisfied that there is an error in the sentence and a different sentence should be imposed. It must be shown that there was an error which requires the imposition of another sentence. The focus is on whether the sentence imposed is within range, rather than the process by which…

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 Whitehead v Police

Details

AGLC: Whitehead v Police [2021] NZHC 3421
Case: [2021] NZHC 3421
Decision Date: 14 December 2021

CaseChat Overview and Summary

The appeal in Whitehead v Police was heard by Cull J in the High Court of New Zealand, Wellington Registry. Shane Colin Whitehead appealed against the imposition of a Protection Order by the District Court in relation to an offence of accessing a computer system without authorisation. Mr Whitehead had previously been in a relationship with the victim and had accessed her Snapchat account 156 times through his own mobile phone, which had her log-in details saved. The victim reported ongoing distress due to the intrusion and stated that she did not want any further contact from Mr Whitehead. The District Court imposed a Protection Order due to the proximity between Mr Whitehead and the victim's social circles.

The appeal concerned whether a Protection Order was necessary for the protection of the victim. Under s 123B of the Sentencing Act 2002, a Protection Order may be made if the court is satisfied that the making of the order is necessary for the protection of the victim of the offence. Cull J found that the Judge did not conduct an assessment of the necessity for the protection order and that the imposition of the Protection Order was not necessary in the circumstances. The risk of Mr Whitehead re-offending in this way against the victim was no longer possible as he no longer had access to the victim's log-in details. The effect of the imposition of a Protection Order on Mr Whitehead rendered the sentence imposed on him to be manifestly excessive in the Court's assessment.

The appeal was upheld and the Protection Order against Mr Whitehead was quashed. Cull J endorsed the Judge's concern that if there was any future repetition of this kind of behaviour, then Mr Whitehead could be brought back before the Court and penalised again on this charge. The remainder of the sentence would serve as a strong deterrent from any further similar offending.

Orders