Whittaker v The Queen - [2019] NZHC 1227

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-409-000052

[2019] NZHC 1227

BETWEEN
SHAUN FRANCIS WHITTAKER

Appellant

AND

THE QUEEN

Respondent

Hearing: 30 May 2019

Appearances:

M Zintl for Appellant

J H Whitcombe for Respondent

Judgment:

31 May 2019

JUDGMENT OF GENDALL J

WHITTAKER v R [2019] NZHC 1227 [31 May 2019]

[1] On 24 January 2018 Judge Garland in the District Court at Christchurch sentenced the appellant Shaun Whittaker to six years and six months’ imprisonment on a number of charges. Mr Whittaker was sentenced following his guilty plea on one charge of aggravated robbery, four charges of dishonestly using a credit card to obtain property or to obtain a pecuniary advantage, one charge of possessing an offensive weapon in a public place, one charge of dishonestly and without claim of right getting into a vehicle, one charge of driving while disqualified third or subsequent, and one charge of common assault.

[2]Mr Whittaker now appeals that sentence.

[3] The appellant’s Notice of Appeal here was filed slightly out of time and he now seeks leave to extend the time for filing of his Notice of Appeal. There is no opposition from the respondent to the granting of this leave. Leave extending the time for filing this appeal is appropriate in the circumstances outlined by the appellant here and is granted. I now turn to consider the substantive appeal.

Facts

[4] As to the background facts relating to this appeal, on 7 July 2006 the appellant was convicted of driving whilst disqualified and disqualified from driving indefinitely. Despite this, in the morning of 3 September 2017, the appellant unlawfully took and drove away a white Ford Fiesta motor vehicle from a driveway in Templeton, Christchurch.

[5] At approximately 7.15 pm on that day, 3 September 2017, Mr Whittaker entered the residential address of people he knew, Owen and Joanne Stenton in Templeton. The Stentons are aged 67 and 64 respectively. The appellant aggressively pointed what he represented to be a short-barrelled firearm at the Stentons and shouted, “[g]et the money, get it out of the safe, I know there is a safe”. He pointed the firearm at Mrs Stenton and tapped the barrel on her chest as she backed away. She then picked up her phone to call 111 which caused Mr Whittaker to shove her arm causing her to stumble and drop the phone. Mr Stenton then told Mr Whittaker there was no safe or

money. The appellant then presented a small bullet in a threatening manner and told Mr Stenton he would shoot him. The pair began struggling and Mr Whittaker stabbed Mr Stenton’s hand with a screwdriver causing a graze to his hand and then, again, the appellant threatened him. Shortly after, Mr Stenton told Mr Whittaker he only had
$30 and went to remove it from his phone case. Mr Whittaker grabbed the phone and took it along with the $30 and four bank cards which were…

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 The Queen

Details

AGLC: Whittaker v The Queen [2019] NZHC 1227
Case: [2019] NZHC 1227
Decision Date: 31 May 2019

CaseChat Overview and Summary

The case of Whittaker v The Queen involved an appeal against sentence by Shaun Whittaker, who was sentenced to six years and six months’ imprisonment on multiple charges, including aggravated robbery, dishonest use of a credit card, possessing an offensive weapon, unlawfully getting into a vehicle, driving while disqualified, and common assault. The appellant argued that the starting point of seven years for the aggravated robbery charge was too high, that the proceedings should have been adjourned to determine if a restorative justice process was appropriate, and that the sentence should have been discounted for genuine remorse. The Crown maintained that the sentence was within range and should not be disturbed.

The High Court considered the legal issues, including whether the starting point for the aggravated robbery charge was appropriate, whether the sentencing judge should have adjourned the proceedings to consider restorative justice, and whether the sentence should have been discounted for genuine remorse. The Court found that the starting point of seven years was within range given the aggravating factors present in the case, that there was no basis to determine whether the restorative justice process was appropriate, and that the sentencing judge was best placed to assess the appellant’s remorse.

The Court concluded that there was no error in the sentence imposed and dismissed the appeal against sentence. The application for an extension of time to appeal was granted.

Orders