Wikaira v Police - [2021] NZHC 3262

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-409-139

[2021] NZHC 3262

BETWEEN
JENNETTE TE AROHA WIKAIRA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 25 November 2021

Appearances:

D J Matthews and S-C Kim for Appellant J E Lancaster for Respondent

Judgment:

1 December 2021

JUDGMENT OF MANDER J

This judgment was delivered by me on 1 December 2021 at 11.30 am pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date: .

WIKAIRA v NEW ZEALAND POLICE [2021] NZHC 3262 [1 December 2021]

[1] Jennette Wikaira was sentenced by Judge Hix in the Christchurch District Court on two sets of charges that concerned dishonesty offending. Ms Wikaira was initially sentenced to intensive supervision in respect of the first batch of offences but soon after that sentence was imposed committed further similar offences which comprised the second group of charges. An end sentence of 21 months’ imprisonment was imposed. Ms Wikaira now appeals that sentence.

Factual background

[2] The first set of charges spans events that occurred between August and October 2020. On 10 August, Ms Wikaira shoplifted food items from the New World Fendalton Supermarket valued at $368.95. On 12 October, Ms Wikaira entered The Warehouse in Belfast with an associate and shoplifted items of clothing valued at $250. This offending gave rise to two charges of theft (under $500).1

[3] On 17 October 2020, Ms Wikaira and an associate entered a Subway restaurant in Temuka. While the associate distracted the person working behind the counter, Ms Wikaira picked up the keys to the cash register that were behind the counter and unsuccessfully attempted to open it. She then went into the kitchen area of the restaurant and stole the shop assistant’s cell phone valued at $2,000, and her driver’s licence and debit card before driving away. The victim’s debit card was used to make three separate transactions at a service station to the value of $94.90 and a purchase at another station to the value of $55. In respect of this offending, Ms Wikaira was charged with theft (over $1,000),2 and four charges of using a document for pecuniary advantage.3

[4] On 10 February 2021 Ms Wikaira was sentenced by Judge Hix on these charges, together with a further charge of failing to report as directed by a probation officer in breach of her release conditions,4 to 18 months’ intensive supervision with judicial monitoring.

1      Crimes Act 1961, ss 219 and 223(d) – maximum penalty of three months’ imprisonment.
2      Crimes Act, ss 219 and 223(b) – maximum penalty of seven years’ imprisonment.
3      Crimes Act, s 228(1)(b) – maximum penalty of seven years’ imprisonment.
4      Sentencing Act 2002, s 96(1) – maximum penalty of one year’s imprisonment or a fine of $2,000.

[5] Two days later on 12 February 2021, Ms Wikaira and an associate went to Ballantynes department store. Ms Wikaira selected four clothing items valued at $956 and attempted to leave the store…

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 Wikaira v Police

Details

AGLC: Wikaira v Police [2021] NZHC 3262
Case: [2021] NZHC 3262
Decision Date: 1 December 2021

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Jennette Te Aroha Wikaira against a sentence imposed by the Christchurch District Court. Wikaira was convicted of various dishonesty offences and sentenced to 21 months' imprisonment. The appeal challenged the sentence on two grounds: first, that the sentencing judge failed to adequately credit Wikaira's personal background and addiction issues as mitigating factors; and second, that her guilty pleas should have attracted greater credit. The respondent argued that the appeal court could only intervene if the sentence was manifestly excessive and not justified by sentencing principles.

The court found that while the sentencing judge's approach lacked clarity, the ultimate sentence was not manifestly excessive. The court agreed that a 21-month starting point was appropriate, and that applying orthodox sentencing methodology resulted in the same sentence imposed by the District Court. The court accepted that a 10% alteration in sentence was sufficient to found a successful appeal, but concluded that the original sentence was not manifestly excessive. The appeal was therefore dismissed.

Orders