Witana v Police - [2015] NZHC 3306

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 Crown

Judgment:

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…

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 Witana v Police

Details

AGLC: Witana v Police [2015] NZHC 3306
Case: [2015] NZHC 3306
Decision Date: 18 December 2015

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal against sentence brought by Dwaine Robert Witana. Witana appealed the sentence of 15 months' imprisonment imposed by the District Court at Queenstown. The sentence was imposed after Witana pleaded guilty to six charges, including dishonest use of a document, theft, shoplifting, receiving property, failure to comply with a prohibition on driving, and use of a fantasy type substance. The legal issues for the court to decide were whether the District Court Judge made a mathematical error in the decision, failed to reduce the sentence for remorse and steps taken, and whether the sentence was manifestly excessive.

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