Winika v Police - [2013] NZHC 1073

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2013-409-000034 [2013] NZHC 1073

KANE AMBROSE WINIKA
Appellant
v
POLICE
Respondent

Hearing: 9 May 2013

Counsel: K J Gray and N A Pointer for Appellant
S J Jamieson for Respondent

Judgment: 9 May 2013

JUDGMENT OF WHATA J

[1] Mr Winika appeals his sentence of six months three weeks imprisonment on the following matters:

(a) Two thefts;

(b) Driving while disqualified; (c) Excess breath alcohol;
(d) Breach of Court bail; and

(e) Failing to answer police bail.

WINIKA V POLICE HC CHCH CRI 2013-409-000034 [9 May 2013]

[2] Three grounds are raised by Mr Winika, namely:

(a) The sentencing Judge overstated the uplift required for the driving while disqualified offending and other offending by three months on top of the starting point of six months for the theft charges;

(b)The sentencing Judge did not consider mitigating factors placed before the Court and was unduly focussed on deterrence; and

(c) Home detention should have been granted in view of the recommendations made in the pre-sentence report of reparation and community work.

The judgment

[3] Judge Kellar described the offending in the following terms (which I

understand are not disputed):

[4] The facts of the respective offending are these. On or about
6 November last year when you were employed by a local firm as a painter to carry out earthquake repairs in people’s homes in the course of your employment you stole items of jewellery valued at some $20,000. At first you denied taking the jewellery, only when it was revealed that you had sold the two items for the paltry sum of $300 to a local second-hand shop did you admit the offending.

[5] On 8 January this year you stole the victim’s $3000 road bike from where he had parked it outside a supermarket. Against you sold it for the miserly sum of $100 to a local pawnbroker.

[6] On 1 December 2012 you were apprehended driving while your licence was suspended. You were drink driving also, the level was as I have already mentioned.

[7] Clearly the main offending in terms of sentencing is the theft of the jewellery. There are two main aggravating factors to that offending and they are related to each other. The first is that it is an abuse of a position of trust. Both contractors, as employers and the people’s homes being repaired, place considerable trust in people who go into their homes to carry out repairs. It’s a corollary of that that the homes of people where earthquake repairs have been carried out are vulnerable and that is a fact of course you would be very well aware of.

[4] The Judge then identifies accountability, promoting a sense of responsibility and acknowledgment of harm caused as relevant for sentencing purposes. Reference is then made to a lengthy victim impact statement and the anguish caused, in short, by the violation of the home of the victim and the breach of trust. The Judge…

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 Winika v Police

Details

AGLC: Winika v Police [2013] NZHC 1073
Case: [2013] NZHC 1073
Decision Date: 9 May 2013

CaseChat Overview and Summary

The appellant, Kane Ambrose Winika, appeals his sentence of six months and three weeks imprisonment for various offences including theft, driving while disqualified, excess breath alcohol, breach of court bail, and failing to answer police bail. The appeal was heard by Whata J in the High Court of New Zealand Christchurch Registry. The grounds of appeal were that the sentencing Judge overstated the uplift required for the driving while disqualified offending and other offending, did not consider mitigating factors, and should have granted home detention. The Judge described the offending as brazen, involving an abuse of trust, and noted the need for deterrence and denunciation. The Judge considered the pre-sentence report, which recommended reparation and community work, but opted for a more punitive sentence due to the seriousness of the theft offences and the appellant's prior convictions for dishonesty and driving while disqualified. The appeal was dismissed, and the sentence upheld.

Orders