Wirepa v Police - [2012] NZHC 512

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2012-442-000008 [2012] NZHC 512

DION WIREPA
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 21 March 2012

Counsel: S J Zindel for appellant
S K O'Donoghue for respondent

Judgment: 22 March 2012

RESERVED JUDGMENT OF DOBSON J

[1] Mr Wirepa was sentenced in the Nelson District Court on 14 February 2012 to 23 months’ imprisonment on three convictions for burglary. The charges arose out of three separate incidents that occurred between 10am and 3.30pm on 6 December
2011. Mr Wirepa and an associate biked or travelled on foot to three separate residential properties in the Nelson area, broke in to those properties, and stole items of value: two laptops, two hard drives, clothing, three cameras and a greenstone pendant.

[2] There were no confrontations with the occupants of the residences. The property from the second and third burglaries was later recovered. Mr Zindel fairly
categorised the first burglary as involving pre-meditation, whilst the latter two were

WIREPA v NEW ZEALAND POLICE HC NEL CRI-2012-442-000008 [22 March 2012]

“opportunistic”. Mr Wirepa appealed against his sentence on the basis that the starting point was too high and the uplift for prior convictions was too great.

[3] The sentencing Judge, Judge A A Zohrab, noted Mr Wirepa’s five previous convictions for burglary, and other previous convictions for dishonesty offences. He also noted the pre-sentence report and its recognition that Mr Wirepa had changed his attitude and was taking steps to reintegrate into pro-social society. The Judge also noted that before this incident, Mr Wirepa had not offended for two years, and he noted Mr Wirepa’s positive work ethic and compliance with community-based sentences in the past.

[4] The Judge then assessed how properly to take into account Mr Wirepa’s prior convictions for burglary. He noted a contrast in approach between the methodology in R v Taueki,1 which takes into account prior convictions after a starting point is
reached, and R v Columbus,2 where, in respect of burglaries, the Court of Appeal

considered prior convictions to be relevant to starting point. The Judge stated that the approach he took would not matter to the end result.

[5] The Judge took into account the three separate incidents, the pre-meditation and the potential confrontation with occupants during the day in determining the starting point of 18 months’ imprisonment. He then uplifted that by 12 months to take into account the prior history of offending. He then gave a seven month discount for guilty plea (approximately 25 per cent), arriving at the end sentence of
23 months.

[6] Mr Zindel’s challenge to the sentence sought to deconstruct its component parts, challenging discretely the starting point, and the extent of uplift. That approach was notwithstanding the recent repetition of the Court of Appeal’s caution that sentence appeals turn on a consideration of whether the final outcome is
manifestly excessive. It was put in these terms:3

Finally, in terms of the point of principle initially raised, we note…

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 Wirepa v Police

Details

AGLC: Wirepa v Police [2012] NZHC 512
Case: [2012] NZHC 512
Decision Date: 22 March 2012

CaseChat Overview and Summary

The appellant in this case, Dion Wirepa, was sentenced by the Nelson District Court to 23 months’ imprisonment on three counts of burglary. Wirepa appealed against his sentence, arguing that the starting point for his sentence was too high and that the uplift for prior convictions was excessive. The primary legal issue before the court was whether the sentence imposed by the Nelson District Court was manifestly excessive. The court considered the appropriate methodology for determining the starting point and uplift for a sentence in cases of recidivist burglary. The court noted that the starting point for sentencing in cases of burglary should be determined by the features of the offending, while the offender’s personal characteristics should be considered as aggravating or mitigating factors. The court also noted that previous convictions are relevant in assessing the offender’s culpability and the need for deterrence and community protection. The court concluded that the starting point of 18 months was within an appropriate range and that the 12-month uplift for prior convictions was not excessive, given Wirepa’s history of reoffending. Accordingly, the appeal was dismissed.

Orders