BRAYDEN MARK WHITING-ROFF AND THE KING - [2024] NZCA 530

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA403/2023
[2024] NZCA 530

BETWEEN	BRAYDEN MARK WHITING-ROFF Applicant
AND	THE KING Respondent

Court:	Collins, Brewer and Osborne JJ
Counsel:	P J Shamy KC and K M Barker for Applicant C A Brook and J G Fenton for Respondent
Judgment: (On the papers)	18 October 2024 at 11 am

JUDGMENT OF THE COURT

AThe application to adduce further evidence is granted.
BThe application for an extension of time to appeal against the sentence of life imprisonment is declined.
CThe application for an extension of time to appeal against the imposition of a minimum period of imprisonment of 12 and a half years is granted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

On 10 December 2018, Dunningham J sentenced Mr Whiting-Roff to life imprisonment with a requirement he serve a minimum period of imprisonment (MPI) of 12 years and six months before he is considered eligible for parole.[1] That sentence was imposed after Mr Whiting-Roff pleaded guilty to having murdered Mr McAllister in Invercargill on 7 June 2017. At the time of the murder Mr Whiting‑Roff was 20 years old.
[1]R v Whiting-Roff [2018] NZHC 3239 [sentencing notes] at [74].
Mr Whiting-Roff now applies for:
(a)leave to file further evidence from a psychologist and a psychiatrist in support of his application; and
(b)an extension of time to appeal his sentence. He does so primarily on the basis of this Court’s judgment in Dickey v R,[2] in which we quashed sentences of life imprisonment in respect of Ms Dickey, Mr Brown and Ms Epiha. Ms Dickey and Mr Brown were co-offenders with Mr Whiting-Roff.

Background

[2]Dickey v R [2023] NZCA 2, [2023] 2 NZLR 405.

The murder of Mr McAllister occurred in the context of Ms Dickey, who at the time was 16 years old, wanting to extract revenge for Mr McAllister having allegedly sexually abused her several months earlier.
On the day he was murdered, allegations circulated that Mr McAllister had interfered with a young relative of Mr Brown. At the time, Mr Brown was 19 years old. That evening Mr Brown put a message on Facebook saying he wanted to find Mr McAllister. This message generated several comments including one from Mr Whiting-Roff in which he said that Mr McAllister was a “gonna”.
At approximately 8 pm, Mr Brown, Ms Dickey and a Ms Scheepers met and discussed a plan to find Mr McAllister in order to assault him. Another meeting occurred at approximately 10 pm between Mr Whiting-Roff, Ms Dickey and Mr Brown where it was planned that Mr McAllister would be lured to the ILT Stadium Southland carpark. At that meeting Mr Whiting‑Roff produced a hunting knife and indicated that he was going to kill Mr McAllister.
Soon afterwards Ms Scheepers sent Mr McAllister a text message inviting him to the Stadium for the purposes of having sex. Mr Whiting‑Roff, Ms Dickey, Mr Brown and three…

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.

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Details

Case: [2024] NZCA 530
Decision Date: 18 October 2024 at 11 am

CaseChat Overview and Summary

Brayden Mark Whiting-Roff appeals against his life sentence with a minimum imprisonment period of 12 years and 6 months, imposed after he pleaded guilty to murdering Mr McAllister in 2017. Whiting-Roff seeks leave to adduce new evidence from a psychologist and psychiatrist and an extension of time to appeal his sentence, relying on the Court of Appeal's judgment in Dickey v R. The court must decide whether Whiting-Roff's application for new evidence and the extension of time to appeal his sentence should be granted.

Whiting-Roff's application to adduce further evidence is based on reports from a clinical psychologist and a psychiatrist, who cite new information about Whiting-Roff's childhood sexual abuse. This evidence was not available at the time of sentencing and may impact his appeal against the minimum imprisonment period imposed. The Crown argues that the new evidence does not meet the criteria for fresh evidence and is unlikely to assist the appeal because the murder was premeditated. However, the court grants the application for leave to adduce the evidence, finding that the information concerning Whiting-Roff's personal experience of childhood sexual abuse is new and may impact his appeal against the minimum imprisonment period.

Regarding the extension of time to appeal, the court considers the merits of the proposed appeal against the sentence of life imprisonment and the minimum imprisonment period of 12 years and 6 months. The court rejects the submission that there were no significant differences in the culpability of Whiting-Roff, Ms Dickey, and Mr Brown, finding that Whiting-Roff was significantly more culpable. However, the court finds some merit in the proposed appeal against the minimum imprisonment period imposed on Whiting-Roff, as his experience of childhood sexual abuse may have contributed to his offending. The court grants the application for an extension of time to appeal against the minimum imprisonment period, while declining the application for an extension of time to appeal against the sentence of life imprisonment.

The court grants the application to adduce further evidence and the application for an extension of time to appeal against the imposition of a minimum period of imprisonment of 12 and a half years, while declining the application for an extension of time to appeal against the sentence of life imprisonment.

Orders