IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2015-425-000043 [2015] NZHC 3306
BETWEEN DWAINE ROBERT WITANA
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 15 December 2015 Appearances:
T Cadogan for Appellant
S N McKenzie for CrownJudgment:
18 December 2015
JUDGMENT OF DUNNINGHAM J
[1] Mr Witana appeals his sentence of 15 months’ imprisonment imposed in the District Court at Queenstown on 28 September 2015.1 The sentence was passed after he pleaded guilty to the following charges:
(i) Dishonest use of a document (x2); (ii) Theft of property under $500 (x3);
(iii) Shoplifting (property valued under $500);
(iv) Receiving property (whose value was under $500); (v) Failure to comply with a prohibition on driving;
(vi) Use of fantasy type substances.
1 Police v Witana [2015] NZDC 19727.
WITANA v NEW ZEALAND POLICE [2015] NZHC 3306 [18 December 2015]
Grounds of appeal
[2] The appellant appeals the sentence on the following grounds; (a) the Judge made a mathematical error in the decision;
(b) no reduction in sentence for remorse and steps taken; and
(c) the sentence was manifestly excessive.
Background facts
First theft charge
[3] On 28 May 2015, the appellant filled the car he was driving with $50 worth of petrol. When his credit card declined payment, he said to the shop assistant that he would return within 90 minutes to pay. He did not return and is yet to pay.
Receiving property
[4] The relevant wallet contained a driver’s licence, $40 in cash and three bank cards, and was taken on 20 May 2015. One of the bank cards was later used in Ponsonby, Auckland. When arrested on 26 July 2015 on a fines warrant, the appellant was found in possession of the wallet. He claims that a friend stole it from a business address in Auckland.
Shoplifting
[5] The appellant took three pairs of socks and a female item of clothing from a clothing rack at the Warehouse, on Cameron Road in Tauranga. The appellant went into a cubicle, substituted one pair of the new socks for his own, and then left the store without paying for that pair or the other two pairs. He returned the item of female clothing to the rack. The appellant was confronted by a shop assistant and he returned to the store and gave the socks back. He later stated that he did not remember the shoplifting.
[6] As of 3 June 2012 the appellant was forbidden from driving for being unlicensed. Despite this he drove a BMW in Queenstown on 20 July 2015. He went to a Z petrol station in Queenstown, put $50 worth of petrol into the car, signed an agreement with the shop assistant saying he would return and pay within 24 hours, and then did not return. Subsequently it became clear that he had used someone else’s name and had written false phone numbers on the form.
First dishonest use of a document charge
[7] The appellant used the driver’s licence from the stolen wallet he…
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- AGLC
- Witana v Police [2015] NZHC 3306
- Case
- [2015] NZHC 3306
- Decision Date
CaseChat Overview and Summary
The High Court found that there was no mathematical error in the District Court's judgment, but that the Judge did not appear to make any discount for remorse and steps taken to address the risk of reoffending, despite saying this was appropriate. However, the Court found that the three month deduction in relation to the totality principle could be seen as redressing this error. The Court also found that the six-month uplift for previous convictions was too high, and that an uplift of only three months should have been applied. However, the Court was not satisfied that this justified a different sentence being imposed, and the appeal was dismissed.
The final orders of the Court were that the appeal against sentence was dismissed, and Witana's sentence of 15 months' imprisonment was upheld.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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