Witehira v The King

[2024] NZHC 3596

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-250

[2024] NZHC 3596

BETWEEN

JAMIESON GUILE WITEHIRA

Appellant

AND

THE KING

Respondent

Hearing:	21 November 2024
Appearances:	S A Saunderson-Warner for Appellant G L Collett for Respondent
Judgment:	28 November 2024

JUDGMENT OF MANDER J

This judgment was delivered by me on 28 November 2024 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar

WITEHIRA v R [2024] NZHC 3596 [28 November 2024]

[1]    Jamieson Witehira was sentenced by Judge Zohrab in the Christchurch District Court to three years and six months’ imprisonment for the aggravated robbery of a dairy, two unrelated charges of theft, and three charges of breaching a sentence of intensive supervision.1 Mr Witehira appeals that sentence on the basis an uplift imposed for the breaches of intensive supervision was excessive and insufficient credit was extended to him for reparation and the effect of parental incarceration.

Factual background

[2]    On 29 January and 2 February 2024, Mr Witehira stole packages of meat valued respectively at $506.00 and $582.15 from a supermarket by concealing the items in his bag.

[3]    On the afternoon of 6 February 2024, Mr Witehira entered a Christchurch dairy armed with a rifle and carrying a large sports bag. He confronted the shopkeeper, pointed the rifle at his head and demanded he fill the bag with cash and cigarettes. The shopkeeper complied with his demands. As Mr Witehira was leaving the dairy, he told the shopkeeper he would kill him if he called the police.

[4]    The breaches of intensive supervision comprise failures to report to a probation officer in October and December 2023 and a failure to charge his electronic monitoring equipment in January 2024.

The sentencing decision

[5]    In addressing the lead offence of aggravated robbery, the Judge identified several aggravating factors. These included the use of a weapon, the threat to kill, and the premeditation required to commit such an offence. It was noted that the effect of the offending on the shopkeeper had been profound. A starting point of four years and six months’ imprisonment was adopted, to which the Judge applied a three-month uplift in recognition of the theft charges. A discrete eight-month uplift was imposed for the three charges of breaching intensive supervision. No separate discrete uplift was imposed for the lead offending having occurred whilst Mr Witehira was subject

1      R v Witehira [2024] NZDC 23999.

to a sentence, nor for his previous convictions. However, the Judge expressly noted he had built those considerations into the eight-month uplift.

[6]    Having concluded a starting point of five years and five months’ imprisonment was proportionate to the offending, the Judge applied a discount of 20 per cent for Mr Witehira’s guilty pleas, a 10 per cent reduction for matters relating to his personal background, and a further five per cent credit to mark his offer to pay reparation and the effect of incarceration on his parental relationship with his children. That resulted in the end sentence of three years and six months’ imprisonment, which the Judge considered was an appropriate outcome having regard to the totality of the offending, its seriousness, and the impact on the victim.   An order was also made requiring   Mr Witehira to pay $1,506 in reparation.

The appeal

[7]    On behalf of Mr Witehira, Ms Saunderson-Warner submitted the sentence was manifestly excessive because of what she argued was the inordinate uplift applied for the breaches of intensive supervision and the insufficient credit provided for reparation and parental incarceration. Ms Saunderson-Warner argued there were no aggravating features associated with the breaches of the sentence, which she described as being no more than of the “garden variety”. It was submitted an uplift no greater than six months’ imprisonment could have been justified.

[8]    It was further argued that separate five per cent discounts should have been applied in recognition of remorse, on the one hand, and Mr Witehira’s parental separation from his children, on the other. In regard to the former, it was noted that Mr Witehira had written a letter of apology to the dairy owner and expressed a willingness to participate in restorative justice, even though that had not eventuated.

[9]    The excessive uplift and the inadequate credit for mitigating factors were errors that in combination, Ms Saunderson-Warner submitted, had resulted in the end sentence of three years and one month’s imprisonment being manifestly excessive.

[10]   In opposition to the appeal, the Crown submitted both the uplift to the starting point for the breaches of the sentence and the discounts applied by the Judge were

appropriate and within range. It was argued that the charges of Mr Witehira’s breaching intensive supervision represented numerous failures by him to comply with his reporting obligations and to remain in contact with Corrections, all of which demonstrated an ongoing and plain disregard for the sentence to which he was subject. When taken together with his criminal history and the fact the other offending took place while he was subject to this sentence, the eight-month uplift was unremarkable.

[11]   In relation to the argument that Mr Witehira was entitled to a discrete credit for the effect his incarceration would have on his role as a parent, it was observed he was not the primary caregiver of the children and, indeed, did not even reside in the same city as them. The older age of at least two of his children (aged 12, 15 and 20 years) was said to diminish their level of reliance on him and it was argued that no discrete discount was required for this factor.

Analysis

Eight-month uplift

[12]   In support of Mr Witehira’s challenge to the uplift for the breaches of intensive supervision, reliance was placed on a decision of this Court in Rawiri v Police, where Downs J held that a 10-month uplift imposed in respect of three breaches of intensive supervision, a breach of community work, theft of a motor vehicle, dangerous driving and failing to stop was excessive.2 Downs J considered an additional six months for those offences, when added to a 30-month starting point for the lead offending, was appropriate.  However,  unlike  in   Rawiri,  the  eight-month   uplift  imposed   on Mr Witehira in this case took into account his criminal history, which included three earlier convictions for breaching intensive supervision, and the fact the offending for which he was for sentence was committed whilst subject to an earlier sentence. On the other hand, the uplift in Rawiri was imposed in respect of a range of additional charges.

[13]   In assessing the length of the uplift in this case, it is important to have regard to the conduct which the charges represent. Mr Witehira failed to report within the

2      Rawiri v Police [2022] NZHC 2466.

first 72 hours after the sentence of intensive supervision had been imposed, so from the outset he was in breach of his sentence. He then failed to report on four consecutive occasions as compulsorily required. After these defaults, he refused to respond to attempts by Corrections to contact him by phone calls, messages and home visits. The other charge of breaching the sentence of intensive supervision again concerned his failure to report notwithstanding efforts to contact him. While the third charge related to a failure to keep his electronic monitoring equipment charged.

[14]   The sentence to which these breaches relate was imposed for dishonesty offending and for earlier breaches of the same sentence. His criminal history comprises some 122 convictions, mainly for dishonesty offending, but also includes 29 offences of breaching court orders or sentences. As submitted by the Crown, the number, nature and repetition in recent years of this type of offending, in respect of which the aggravated robbery represents a significant escalation, could well have warranted a standalone uplift in the range of 10 per cent. Leaving the eight-month uplift to one side, that by itself would have equated to an additional six months.

[15]   I accept that had the Judge imposed the eight-month uplift solely for the breaches of intensive supervision, the length of the additional term of imprisonment may have been excessive. However, the Judge expressly stated that this uplift also took into account Mr Witehira’s criminal history and the aggravating feature that his present offending occurred while he was subject to the sentence in respect of which he faced these additional offences. While the Judge’s approach was perhaps not orthodox, there is some correlation between the ongoing breaches of the intensive supervision sentences and the other offending having occurred while he was subject to that sentence. Furthermore, those charges represented a continuation of a well- established pattern of noncompliance.

[16]   Having regard to the number and temporal proximity of the breaches, which when taken together represent an ongoing failure by Mr Witehira to comply with his sentence and a continuation of his past conduct and poor attitude to his court-imposed obligations, I do not consider the uplift was outside that available to the sentencing Judge in the exercise of his discretion.

Credit for personal factors

[17]   Turning to the second ground of appeal regarding the combined credit provided for remorse and the impact of parental incarceration, Ms Saunderson-Warner responsibly informed the Court that she had checked earlier that morning, before the hearing of the appeal, whether any reparation had been paid. Mr Witehira had been sentenced in the District Court some seven weeks ago but no payments have been made. As a result, Ms Saunderson-Warner acknowledged that Mr Witehira’s represented willingness to pay reparation could be given no weight. However, she emphasised the letter of apology Mr Witehira had written and his willingness to engage in a restorative justice process with the victim of his offending.

[18]   Unfortunately, the failure by Mr Witehira to follow through, either with the reparation ordered by the Court for economic loss or to make any voluntary payment which he said he was willing to do in order to compensate the shopkeeper for the emotional harm caused by his offending, tends to detract from the genuineness of his remorse and the extent to which reliance can be placed on the sentiments expressed at the time Mr Witehira was sentenced. Judges are entitled to be sceptical about unsubstantiated claims that an offender is genuinely remorseful. Such claims are required to be subjected to a proper and robust evaluation of the circumstances in which they are made.3 In this case, Mr Witehira’s words have not been followed by actions.

[19]   If there is any entitlement to credit for remorse it is, perhaps, marginal. So too is any reduction for the impact of imprisonment on Mr Witehira’s children. While the sentencing Judge indicated he had  taken this factor into account when  affording   Mr Witehira a combined five per cent credit, it is doubtful whether any discrete deduction was warranted in the circumstances. The impact imprisonment may have on an offender’s children is a relevant consideration when considering that person’s personal circumstances.4 However, the weight that is to be accorded to that factor will depend on the circumstances of each case, including the type of offending that has

3      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].

4      Campbell v R [2020] NZCA 356 at [41]; and R v Harlen (2001) 18 CRNZ 582, (2001) 6 HRNZ 440 (CA), cited with approval in Philip v R [2022] NZSC 149, [2022] 1 NZLR 571 at [50] and [51].

been committed and the circumstances of the child or children,5 although, such discounts need not be rare or limited to the primary caregiver.6

[20]   In the present case, the Court received letters from Mr Witehira’s mother and his children regarding the impact his incarceration will have on his three daughters. The reason Mr Witehira was in Dunedin at the time of his offending was for the purpose of spending more time with them. It was submitted that, while the children were not in his formal full-time care, he was a source of support to them. Against those considerations is the fact that none of the children, one of whom is now an adult, are reliant or dependant on Mr Witehira for financial or immediate parental support as he ordinarily lives at a distance from them in a different part of the country. That is not to underestimate the closeness of Mr Witehira’s relationship with his children, but it does tend to detract from the impact imprisonment will have on their day to day lives given that he ordinarily lives elsewhere and was only visiting at the time that he committed the aggravated robbery.

[21]   When both mitigating factors that are contended should have attracted discrete credits are assessed in combination, each can be viewed as being relatively weak. However, both were taken into account by the sentencing  Judge,  and  while the  five per cent credit extended by him may be viewed as modest, I do not consider it constitutes an error. Moreover, I do not consider the approach taken by the Judge has resulted in the ultimate sentence imposed being manifestly excessive.

Result

[22]The appeal against sentence is dismissed.

Solicitors:

Crown Solicitor, Christchurch

Sarah Saunderson-Warner, Dunedin

5      Campbell v R, above n 4, at [41].

6      Philip v R, above n 4, at [56].