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…

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 Witehira v The King

Details

AGLC: Witehira v The King [2024] NZHC 3596
Case: [2024] NZHC 3596
Decision Date: 28 November 2024

CaseChat Overview and Summary

Jamieson Witehira appeals his sentence of three years and six months’ imprisonment imposed by the Christchurch District Court for aggravated robbery, theft, and breaches of intensive supervision. The appeal focuses on the extent of the uplift applied for the breaches and the credit given for reparation and the impact of parental incarceration. Ms Saunderson-Warner, representing the appellant, argues the uplift was excessive and that insufficient credit was provided for the mitigating factors. The Crown contends the uplift and discounts were appropriate and within the sentencing Judge’s discretion.

The Court found that the eight-month uplift for the breaches of intensive supervision was not excessive, considering the appellant’s criminal history and the ongoing nature of his noncompliance. The Court held that the uplift, while perhaps not orthodox, was within the Judge’s discretion, given the appellant’s pattern of noncompliance and the temporal proximity of the breaches to the other offending. Regarding the credit for personal factors, the Court noted that while the appellant’s remorse and the impact of his incarceration on his children could warrant some credit, the failure to follow through on reparation and the advanced age of two of his children diminished the weight to be given to these factors. The Court concluded that the sentence imposed, after applying the discounts, was not manifestly excessive.

The appeal against sentence is dismissed.

Orders