Whittaker v Police - [2017] NZHC 2747

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-409-125 [2017] NZHC 2747

BETWEEN
SHANE GEORGE WHITTAKER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 9 November 2017

Appearances:

M Cole for the Appellant
S Dayal for the Respondent

Judgment:

9 November 2017

JUDGMENT OF MANDER J

Introduction

[1] Mr Whittaker was sentenced to 16 months imprisonment after being found guilty after a Judge alone trial on one charge of receiving.1 Mr Whittaker pleaded guilty to other unrelated charges of failing to answer bail, possession of a knife, and unlawfully possessing a prescription medicine. On each of these charges he was sentenced to concurrent sentences of one month imprisonment.

[2] Mr Whittaker appeals his sentence alleging it to be manifestly excessive.

The offending

1 Police v Whittaker [2017] NZDC 18072; Police v Whittaker [2017] NZDC 21618.

WHITTAKER v POLICE [2017] NZHC 2747 [9 November 2017]

[3] In August last year, Mr Whittaker purchased a $10,000 to $13,000 vehicle for

$5,000. It had been stolen a day or two previously. He told Police that he had bought the car from a friend of a friend and paid cash. While he did not know it was stolen, he checked online with a website to see if it had been reported. It had not. Judge Couch convicted Mr Whittaker on the basis he had been reckless as to whether or not the vehicle had been stolen, and had taken insufficient steps to ensure that it was not, particularly having regard to its cheap price.

[4] While bailed on the receiving charge Mr Whittaker failed to appear. This resulted in the charge of failing to answer District Court bail. The remaining charges arose from an incident when Mr Whittaker was spoken to by Police on an unrelated matter and found to be in possession of a flick knife and Codeine tablets that had not been prescribed to him.

The sentencing

[5] In sentencing Mr Whittaker, Judge Couch noted the maximum penalty on the receiving charge was seven years imprisonment. He characterised the gravity of the offending as “moderate”. The Judge said the vehicle had “clearly” been stolen and that the measures Mr Whittaker had taken to ascertain the legitimacy of the sale were “far from sufficient given the highly suspicious circumstances”.

[6] Taking into account the fact that Mr Whittaker lost the $5,000 he paid for the vehicle, Judge Couch applied a starting point of 12 months imprisonment. This was uplifted by four months to reflect Mr Whittaker’s “appalling history of serious offending” which included 68 previous convictions for dishonesty offences. However, the Judge noted that Mr Whittaker’s offending had reduced significantly in the last 10 years.

[7] Judge Couch found there were no mitigating features. A final sentence of

16 months was imposed with leave to apply to substitute a sentence of home detention.

Jurisdiction and approach to appeal

[8] An appeal may only be allowed if there is an error in the sentence imposed and…

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 Whittaker v Police

Details

AGLC: Whittaker v Police [2017] NZHC 2747
Case: [2017] NZHC 2747
Decision Date: 9 November 2017

CaseChat Overview and Summary

The case of Whittaker v Police concerns an appeal by Shane George Whittaker against his sentence for receiving stolen property. The original sentencing took place in the District Court, and the appeal was heard in the High Court of New Zealand. Whittaker had been found guilty of receiving a stolen vehicle worth between $10,000 and $13,000 for $5,000, and had been sentenced to 16 months imprisonment, which he now appeals as manifestly excessive.

The central legal issues in the appeal were whether the sentence imposed by the District Court was manifestly excessive and whether an alternative sentence should be imposed. The court examined the relevant sentencing principles, focusing on the appropriate starting point for the sentence and whether the uplift applied for Whittaker's criminal history was justified. Whittaker's counsel argued that the gravity of the offending should have been assessed at the lowest end of the range and that imprisonment was inappropriate. The Police, on the other hand, submitted that the sentence was justified based on the high value of the stolen vehicle and the signs that it had been stolen.

The High Court reviewed the authorities and found that the starting point of 12 months for receiving the stolen vehicle was difficult to reconcile with the Judge’s finding of recklessness, which was the basis of Whittaker's conviction. The Court considered an eight-month starting point would have been more appropriate given the distinguishing features of the case, such as Whittaker's lack of knowledge that the vehicle was stolen and the limited steps he took to verify its legitimacy. However, the Court found no error in the four-month uplift for Whittaker’s extensive history of dishonesty offending. The appeal was allowed, and the sentence was reduced from 16 months to 12 months imprisonment, with the option to apply for a substitution to home detention retained.

This decision underscores the importance of carefully considering the specific circumstances of each case when determining the appropriate sentence, particularly in cases involving receiving stolen property.

Orders