LEVI MICHAEL JAMES WHARERAU AND THE KING - [2024] NZCA 666

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA174/2024
[2024] NZCA 666

BETWEEN	LEVI MICHAEL JAMES WHARERAU Appellant
AND	THE KING Respondent

Hearing:	13 November 2024
Court:	Mallon, Dunningham and Powell JJ
Counsel:	T Braithwaite for Appellant M H Cooke and J E Ellison for Respondent
Judgment:	16 December 2024 at 2 pm

JUDGMENT OF THE COURT

AThe appeal against conviction is dismissed.
BThe appeal against sentence is allowed. The sentence of seven years’ imprisonment on the charge of wounding with intent to cause grievous bodily harm is quashed and substituted with a sentence of six years and six months’ imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Powell J)

Introduction

Levi Wharerau has been sentenced to seven years’ imprisonment on a total of 12 convictions.[1] He now appeals three of those convictions and his overall sentence.
[1]R v Wharerau [2024] NZDC 5582 [sentencing notes].
All of Mr Wharerau’s convictions arise out of a connected set of offending that took place on 26 December 2021. What happened was described at sentencing by the trial judge, Judge Paul, in the following terms:
[3]       … On the morning of 26 December 2021, you were driving a Toyota Prado 4x4 I believe on State Highway 38 at speed directly towards three vehicles travelling the other way. The first two vehicles, the driver’s comprising [the first driver] and the second driver … were forced to swerve to avoid colliding head-on with your vehicle. [The second driver’s] vehicle ended up in a small ditch. He called police. [The first driver] gave evidence that you did not stray from your path at all. He thought you were driving at over 100 kilometres an hour. [The second driver] recalled that you were zigzagging all over the road.
[4]       For the third vehicle, that is the [father and daughter’s] van, you tracked their van, lining it up for a head-on crash. I vividly recall the evidence of [the daughter] where in her words she explained your vehicle was “mocking” the driving of their van. [The father] described the defendant as following his movements. Both [the father and daughter] recall your vehicle accelerating as you got closer. At the last moment, [the father] managed to pull sharply to the left to avoid an imminent head-on collision and I recall his evidence was he did that specifically to save his daughter from the collision that was about to occur.
[5]       Your vehicle collided with [the father’s] van at speed causing the van to roll at least twice. Both [the father and daughter] were knocked unconscious with [the father] being trapped in the vehicle requiring emergency services to cut the door away to free him.
[6]       [The father] sustained fractures to three vertebrae, laceration to his head, chest pain, breathing difficulties and required hospital treatment. [The daughter] sustained lacerations to her face and finger as well as general swelling, bruising and grazes. We now know from her evidence, subsequent concussions.
[7]       An…

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 666
Decision Date: 16 December 2024 at 2 pm

CaseChat Overview and Summary

Levi Wharerau was convicted on 12 charges and sentenced to seven years' imprisonment by Judge Paul. He appealed both his conviction and sentence. The Court of Appeal dismissed the appeal against conviction but allowed the appeal against sentence. The appeal against conviction centred on the trial Judge's summing up on the charge of wounding with reckless disregard. The Court found that the summing up, read in context, did not misdirect the jury and did not result in a miscarriage of justice. The appeal against sentence focused on whether the sentence of seven years' imprisonment was manifestly excessive. The Court found that the starting point was within the range and appropriately reflected the seriousness of the offending, but that a greater discount should have been provided in recognition of Mr Wharerau's time spent on restrictive bail. The sentence of seven years' imprisonment for the wounding of the father was quashed and substituted with a sentence of six years and six months' imprisonment.

Orders