LEVI MICHAEL JAMES WHARERAU AND THE KING
[2024] NZCA 666
•16 December 2024 at 2 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA174/2024 |
| BETWEEN | LEVI MICHAEL JAMES WHARERAU |
| AND | THE KING |
| Hearing: | 13 November 2024 |
Court: | Mallon, Dunningham and Powell JJ |
Counsel: | T Braithwaite for Appellant |
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 off-duty paramedic … who had been driving behind the [father and daughter] in a fully equipped unmarked ambulance vehicle, stopped and administered first aid to the [them]. I stop at this point to recall [the paramedic’s] evidence which was chilling. When he got out of his vehicle to approach the van, given his experience as a paramedic, he was expecting to find fatalities because he had witnessed the crash first hand.
[8] You, Mr Wharerau, continued to drive your damaged vehicle a short distance before leaving the Prado and escaping into the Kaingaroa Forest. The fifth victim, a Constable James Shelford, challenged you on the side road, advised you were under arrest. You advanced aggressively and we saw footage of that in the trial. You were subsequently tasered and pepper-sprayed which was to no avail.
[9] Eventually, you were able to jump in the constable’s patrol car and you drove off. You drove that patrol car at speed through the crash scene where at least seven people were on foot who were assisting in the crash. Constable Kyle Lemon recalls seeing the patrol vehicle fishtailing onto the grass at speed. He thought the patrol car was driving at at least 120 kilometres per hour on the grass verge.
[10] [The paramedic] was so concerned by the manner of driving that he intended to speak to the Police Commander in Rotorua. The driving he observed in his opinion was dangerous and could have killed someone.
[11] You continued to drive and entered the outskirts of Murupara. You overtook a vehicle and ended up in the path of the sixth victim … who was driving the other way. [The sixth victim] had to break heavily to avoid a collision and he was forced off the road.
[12] A short while later, it appears you crashed the police vehicle in the bush. You then exited the car and were approached by the seventh victim, Sergeant Richard Bollard. I believe Sergeant Bollard is in court today. You aggressively advanced on the sergeant who deployed pepper-spray and tasered you, subduing you. Further police staff arrived and the defendant was taken to custody.
…
[14] Ultimately, further police staff arrived. You were taken into custody and while in custody, you kicked a police staff member causing him some pain.
[15] I would do no justice to the [father and daughter] if I even attempted to replicate what they have said in their victim impact statements as a result of the harm you caused them. Without discounting anything they have said, I simply say this. For [the father], the physical, financial and emotional harm he has suffered has been catastrophic. For [the daughter], she was forced to give up her study due to her concussions following the crash. She now suffers from PTSD which limits her ability to travel which ultimately limits her freedom.
[16] Officer Shelford has suffered psychological harm, and like many of the other victims, has nightmares about what happened that day. Sergeant Bollard strikes me as a slightly more stoic man who has not shared much of the emotional harm that he has suffered as a result of that incident, but I am sure he has.
As a result of what had taken place, Mr Wharerau faced 12 charges. On the morning of his trial, he pleaded guilty to the following:
(a)three counts of dangerous driving (the incidents involving the first driver, the second driver and the sixth victim respectively);[2]
(b)failure to stop and ascertain injury after accident (the crash of the father and daughter’s vehicle);[3]
(c)two counts of aggravated assault of a constable (against Constable Shelford and Sergeant Bollard);[4]
(d)escape from lawful custody (from Constable Shelford);[5]
(e)unlawfully takes a motor vehicle (Constable Shelford’s Police car);[6] and
(f)common assault (against Philip Pakinga — the police staff member Mr Wharerau kicked while in Police custody).[7]
[2]Land Transport Act 1998, s 35(1)(b) and (2). Maximum penalty: three months’ imprisonment or a $4,500 fine, and disqualification from holding or obtaining a driver licence for six months or more.
[3]Section 36(1)(c) and (2). Maximum penalty: five years’ imprisonment or a $20,000 fine, and disqualification from holding or obtaining a driver licence for one year or more.
[4]Crimes Act 1961, s 192(2). Maximum penalty: three years’ imprisonment.
[5]Section 120(1)(c). Maximum penalty: five years’ imprisonment.
[6]Section 226(1). Maximum penalty: seven years’ imprisonment.
[7]Section 196. Maximum penalty: one year’s imprisonment.
The jury then found Mr Wharerau guilty of the remaining charges, which are the subject of the current conviction appeal:
(a)wounding with intent to cause grievous bodily harm (against the father);[8]
(b)wounding with reckless disregard (against the father and daughter);[9] and
(c)operating a motor vehicle recklessly (driving through the crash scene).[10]
[8]Section 188(1). Maximum penalty: 14 years’ imprisonment.
[9]Section 188(2). Maximum penalty: seven years’ imprisonment.
[10]Land Transport Act 1998, s 35(1)(a) and (2). Maximum penalty: three months’ imprisonment or a $4,500 fine, and disqualification from holding or obtaining a driver licence for six months or more.
On appeal, Mr Wharerau submits that the Judge erred by:
(a)misdirecting the jury as to a disputed aspect of the case and improperly influencing the jury by suggesting during summing up he thought the charge or wounding with reckless disregard was proved; and
(b)imposing a manifestly excessive end sentence by adopting a manifestly excessive starting point and providing an insufficient discount for time spent on restrictive bail.
Conviction appeal
At trial the parties agreed upon the actus reus of the offending: for example, the driving of the vehicle, its speed, crossing the centre line and causing the head-on collision. The dispute was about Mr Wharerau’s intent or recklessness as to seriously injuring the victims.
The defence case at trial was that Mr Wharerau did not intend to cause serious bodily harm to anyone, and that he did not appreciate the risk of such harm at the time he drove his vehicle into oncoming traffic. The central contention for the defence was that Mr Wharerau was, at the time of the incident, under the influence of some unknown substance that negated his appreciation of reality, including his ability to foresee the risk of harm. Both Mr Wharerau and his mother gave evidence at trial but there was no expert evidence called on behalf of the defence, nor had Mr Wharerau been tested for drugs or alcohol at the time he was apprehended.
Crown counsel invited the jury to deduce Mr Wharerau’s state of mind from eye-witness recollections of his facial expressions as he drove, his manner of driving, his actions and demeanour after the collision as recorded by taser footage and recounted by police witnesses, and his pleas to the other charges.
Conviction appeal jurisdiction
The Court must allow the appeal if satisfied that the jury’s verdict was unreasonable or if a miscarriage of justice has occurred.[11] A miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected; or has resulted in an unfair trial or a trial that was a nullity.[12] A miscarriage is more than “an inconsequential or immaterial mistake or irregularity”.[13] A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong”.[14] This standard means “an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe” but rather that there is a real possibility the verdict is unsafe.[15]
The case for Mr Wharerau
[11]Criminal Procedure Act 2011 [CPA], s 232(2).
[12]Section 232(4).
[13]R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145 at [30].
[14]R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110] per Tipping J.
[15]CPA, s 232(4); and R v Sungsuwan, above n 14, at [110] per Tipping J. See also Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [25].
Mr Braithwaite submitted that the Judge erred in his summing up by misdirecting the jury that the commission of the act of driving a vehicle in a manner that caused collision was enough to satisfy the requisite mens rea on the charge of wounding with reckless disregard. This submission was based on the following comment made by the Judge as highlighted below (the comment):[16]
[21] Secondly, and this is where the contest lies, the Crown have made you sure the defendant acted with reckless disregard for the safety of [the daughter] in that he recognised that if he drove directly at the van there was a real and substantial risk of causing serious injury or death to others but that he drove anyway. Note that the risk of causing serious injury or death will be real and substantial if it was a likely consequence of the defendant's actions. Frankly, ladies and gentlemen, if you drive a four by four directly head on into a van, what do you think is going to happen? A matter for you.
[16]Emphasis added.
Mr Braithwaite submitted that the comment conflated the actus reus and mens rea on the charge of wounding with reckless disregard. He contended that the comment erroneously negated the need for the Crown to prove the mental element of the charge and suggested that the act itself was enough to infer both elements were present.
Mr Braithwaite referred to the test for recklessness as requiring subjective foresight, unless the statutory context clearly requires that a different meaning be given to the concept.[17] For the purposes of wounding with reckless disregard under s 188(2) of the Crimes Act 1961, recklessness requires foresight of dangerous consequences that could well happen, together with an intention to continue with that course of conduct regardless of the risk.
[17]R v Harney [1987] 2 NZLR 576 (CA) at 579.
Mr Braithwaite submitted that the Crown was required to prove that Mr Wharerau foresaw the possibility of serious harm akin to the harm contemplated by the offence and was reckless as to that outcome when he committed the act. He submitted that the comment irreparably undermined Mr Wharerau’s defence against that charge. He acknowledged that the jury would have understood that the only dispute was as to Mr Wharerau’s mental state, and they had the benefit of both counsels’ closings and the question trail. He argued, however, that the jury would naturally look to the Judge as the final authority on how the law was to apply to the evidence they had heard.
In Mr Braithwaite’s submission the comment would have left the jury with the impression that the act of driving in the manner described in itself satisfied the mental requirement for the charge, thereby negating Mr Wharerau’s defence to that charge. Worse, that it would have given the jury the impression that the Judge was of the view that the charge had been proven. He says this was a powerful improper influence upon the jury — even with the words “[a] matter for you” tacked on at the end.
Mr Braithwaite argued that this error gave rise to a real risk that the jury would not properly consider the defence case on intent or recklessness in relation to any of the charges contested at trial. In Mr Braithwaite’s submission, the Judge’s comment meant that the jury was far more likely to reject Mr Wharerau’s defence in respect of all charges, both in terms of presuming knowledge of risk and an intention to cause harm, as they were misdirected to believe that such knowledge was established by the actus reus alone.
Discussion
In R v Keremete, this Court considered the obligations of a trial judge in summing up:[18]
[18] … A judge’s summing up must identify the fundamental facts in issue, be balanced in its treatment of opposing contentions with respect to those facts, and leave the jury in no doubt that the facts are for them and not for the judge. …
[19] The judge need not, and should not, strive for an artificial balance between the rival cases if the evidence clearly favours one side or the other … A judge is entitled to express his or her own views on issues of fact, so long as it is made clear that the jury remains the sole arbiter of fact … Any comment on the facts should be made in suitable terms without use of emotive terms or phrases which could lead to a perception of injustice. But provided the issues are fairly presented, the comment may be in strong terms … Inevitably these are ultimately matters of degree and judgment.
[18] R v Keremete CA247/03, 23 October 2003 (citations omitted). These comments were endorsed in B (CA182/2018) v R [2019] NZCA 18 at [55].
As Ms Cooke observed on behalf of the Crown, the ultimate question is whether the summing up, read as a whole against the factual background, the evidence given at trial, the charges themselves and the prosecution and defence cases, was unbalanced and unfair.[19]
[19]Waara v R [2010] NZCA 517 at [32].
We consider the Judge’s comment was neither helpful nor appropriate. We are nonetheless satisfied that no miscarriage has arisen with regard to the summing up. That is because, when the comment is considered in context, there is no basis for concluding that the jury was in fact misdirected for the reasons that follow.
First, the evidence presented to the jury had focused on Mr Wharerau’s state of mind. Likewise, both the Crown and defence closing addresses had appropriately summed up the Crown and defence cases, and again had focused on Mr Wharerau’s intention at the relevant times.
Secondly, as the summing up commenced, the jury was appropriately directed by the Judge on the functions of judge and jury, and were specifically advised:
[2] The function of a judge in a trial is to deal with matters of law and when I talk about matters of law I ask you to accept what I say is authoritative because the law is my business, but as the Judge I have no part to play in making decisions about the facts. That is entirely your business. So if [I] should say anything which you might interpret as a view about the facts you should ignore it, unless it coincides with your own independently reached view and frankly that goes for counsel’s submissions as well.
Thirdly, having given the jury a number of standard directions, the comment was made as part of an initial discussion of the three charges. By the time the comment was made, the Judge had already spent some time discussing the need for the jury to be sure that Mr Wharerau intended to cause grievous bodily harm in relation to the first of the charges at issue, including directing the jury about the drawing of inferences to ascertain that intention. The Judge also said that the “contest” at trial was Mr Wharerau’s disputed intention in relation to all three charges.
Fourthly, having completed the initial outline of the charges against Mr Wharerau, the Judge took the jury through the question trail that set out the components of each charge for the jury to consider. On the charge in issue the Judge’s directions on the question trail made it quite clear that Mr Wharerau’s intention remained very much in issue and was a matter for the jury. Specifically, on the wounding with reckless disregard charge, the Judge’s directions included:
[28] … If you are sure [the daughter] was wounded, you would go yes and go to question 3. Question 3: “Are you sure that when the defendant drove his four by four into the van occupied by [the daughter], you recognised that doing so would create a risk to [the daughter’s] safety?” This is the contest in that charge.
[29] If you are not satisfied he recognised there was a risk and your answer is no, you would find him not guilty. If you are sure he recognised there was a risk to [the daughter’s] safety, to the occupant’s safety, you would go yes and go to question 4.
The Judge went on to direct the jury on the requirement that they be sure that in the circumstances it was unreasonable to take the risk.
Lastly, The discussion on the question trail was followed by a detailed summary of the respective cases which again focused on Mr Wharerau’s intention and state of mind:
[33] Mr Wharerau has given evidence and has called evidence from his mother. He did not have to do that. The fact that he has given evidence does not change who must prove the charges. It is for the Crown and the defendant does not have to prove that he is not guilty. The question remains the same. Has the Crown proved the defendant’s guilt beyond reasonable doubt, are you sure? In this case Mr Wharerau has explained his version of events to you. He said that things got vague after he left home the evening before the incident, that he was driving but he felt he could not crash, that it was a dream, that he did not intend to hit anyone, that he did not intend to hurt anyone. Essentially, he was not aware of the danger his driving was causing.
[34] If you accept what he says then obviously the proper verdict is not guilty because he will not have the necessary guilty mind that the law requires, the intention. If he did not intend harm or he did not intend to drive recklessly, if what he says to you leaves you unsure then again, the proper verdict is not guilty because you will have been left with a reasonable doubt. If what the defendant says seems a reasonable possibility the Crown will not have discharged its task and you must find him not guilty. If you reach a point where you disbelieve a defendant’s evidence about his drink being spiked and therefore lacking the necessary intent, then do not leap from that assessment to guilt because to do that would be to forget who has to prove the charges. Instead, you assess all the evidence that you accept as reliable. Does that evidence satisfy you of the defendant’s guilt, the required standard, are you sure?
[35] Given the defendant has spoken about his drink being spiked, I need to say something to you about intoxication. I recall the defendant’s evidence was that when he said his drink was spiked, 100 per cent. Drugs sometimes have a disinhibiting effect so people, they do things when intoxicated that they would not do when sober but the law holds people responsible for their intentional acts, even if they are intoxicated by way of drink or drugs at the time. A drugged intent is still an intent for the purpose of the law. It follows that intoxication is not in itself a defence, however, it may be relevant to the state of mind of Mr Wharerau in particular as to his intentions and particularly in a case like this where the Crown are inviting you to infer his intentions from what he was doing at the time. Drugs can cloud judgement and something that would be obvious to someone who is sober might not be seen in the same way by the same person when they are intoxicated.
[36] The Crown case is that you can infer an intention to cause grievous bodily harm from the defendant’s driving and his actions before and after. In assessing whether that is an appropriate inference to draw, you must allow the drugs that the defendant says he consumed, if you accept he consumed drugs, and his explanation to you that when he drove was a dream and therefore without the necessary intention to either cause really serious injury to [the father], risk injury to [the daughter] or drive knowing of the risk to others.
Taking these matters together we are satisfied that it would have been very clear to the jury that the principal issue for them to decide was Mr Wharerau’s state of mind on each of the three charges before them. It is inconceivable that, notwithstanding the comment, the jury would not have understood that the Crown needed to prove Mr Wharerau’s intention beyond a reasonable doubt on each of the charges, and that ascertaining his intention was entirely a matter for the jury to determine based on the evidence they had heard and the inferences that could safely be drawn.
Overall, we are satisfied that the comment was at most a minor issue and the summing up did not cross the line into being unbalanced or unfair. The jury were clearly directed as to the trial contest and that it was for them to determine whether the mens rea was established. The was no real risk that the outcome of the trial was affected by the comment and no miscarriage of justice has therefore occurred.
Sentence appeal
In sentencing Mr Wharerau, the Judge considered the most relevant purposes and principles of sentencing were deterrence and denunciation due to the significant harm Mr Wharerau had caused the victims.[20] The Judge observed it was only good luck that there were no further victims of Mr Wharerau’s driving that day.[21] He noted the following aggravating factors:[22]
(a)the high extent of violence given the level of harm to the victims;
(b)the use of a two-tonne vehicle as a weapon;
(c)the offending against serving police officers;
(d)the vulnerability of the victims, who endeavoured to avoid Mr Wharerau but, due to Mr Wharerau copying their movements, had nowhere to go; and
(e)the potential presence of, albeit limited, premeditation, as Mr Wharerau had continued to drive after the first near miss and had run a further vehicle off the road before colliding with the father and daughter.
[20]Sentencing notes, above n 1, at [25].
[21]At [25].
[22]At [26]–[29].
After reviewing relevant legal authorities, the Judge adopted a starting point of seven years and six months’ imprisonment for what he saw as the principal offending — the first two dangerous driving charges, the two wounding charges, the failing to stop and ascertain injury charge and the aggravated assault of Constable Shelford.[23] This was uplifted by one year for the remaining six charges, which the Judge considered related to Mr Wharerau’s attempts to evade Police following the incident.[24]
[23]At [30].
[24]At [31].
From that adjusted starting point, the Judge gave a 15 per cent discount in total, consisting of:[25]
(a)five per cent for Mr Wharerau’s guilty pleas;
(b)five per cent for remorse; and
(c)five percent to acknowledge that the offending was out of character.
[25]At [32], [34] and [35].
The Judge rejected the defence’s submission that Mr Wharerau’s upbringing and associated trauma had any causative link with the offending.[26] The Judge also noted that Mr Wharerau had spent time on restrictive bail and, despite a breach, reduced the sentence by a further three months.[27]
[26]At [33]–[34].
[27]At [37].
The result was an end sentence of seven years’ imprisonment.[28]
Sentence appeal jurisdiction
[28]The Judge at [38] also ordered that Mr Wharerau be subject to an 18-month disqualification from driving from his date of release.
The Court must only allow the appeal if satisfied there was an error in the sentence and a different sentence should be imposed.[29] The concept of “manifestly excessive” in assessing sentence appeals is well-engrained.[30] Sentencing is not an exact science, and an appellate court will not ordinarily interfere unless the end sentence was outside the range available to the sentencing judge.[31]
The case for Mr Wharerau
[29]CPA, s 250(2). See Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
[30]Tutakangahau v R, above n 29, at [35].
[31]At [35]–[36].
Mr Braithwaite submitted the sentence imposed on Mr Wharerau was manifestly excessive. In his submission, the initial starting point was too high and the uplift for related offending was excessive. In addition, the Judge failed to provide a sufficient discount for time spent on restrictive bail.
Mr Braithwaite referred to several cases to support his submission that Mr Wharerau should have received a starting point of six years.[32] He submitted the present case involved less targeted offending than any of the cases referred to, and R v Mark in particular involved a significantly higher level of culpability, including gang violence and a higher degree of vulnerability on the part of the victim.[33] Mr Braithwaite also submitted that the related offending in the present case was less serious than in R v Mark — which involved deliberate evading of Police, the use of multiple third‑parties, and the intimidation of a young person into making a false confession. He argued that in the present case the evasive actions of Mr Wharerau were “spontaneous and temporally connected with what could be seen as a spree of offending”.
[32]Denney v R [2017] NZCA 80; R v Wilson [2015] NZHC 900; and R v Mark [2017] NZDC 11301.
[33]R v Mark, above n 32.
Overall, Mr Braithwaite submitted that the starting point adopted by the Judge did not take into account the spontaneous nature of Mr Wharerau’s offending — as opposed to cases where violence resulted from deliberate acts within the context of a dispute, gang involvement or family violence. He argued that the level of culpability allocated to Mr Wharerau should reflect cases where actions were not premeditated or deliberate which all attracted lower overall starting points.[34]
[34]See the cases cited above at n 29.
Mr Braithwaite further argued that the one-year uplift applied by the Judge breached the principle of totality. He said the evasion of Police offending and the aggression resulting from that context was closely connected with the overall offending. He again contrasted this with cases where evading justice involved further premeditated acts such as obstructing justice or other offending temporally remote from the violence charged. On this basis he said there should have been no more than a six‑month uplift.
Finally, and with reference to a number of cases, Mr Braithwaite submitted that Mr Wharerau spent a significant length of time on a 24-hour curfew (the “most restrictive form of bail”) and should therefore have received a 10 per cent discount rather than the three months or three per cent discount awarded by the Judge.[35] He submitted that the failure to apply an appropriate discount by itself resulted in a manifestly excessive end sentence.
Discussion
[35]R v Tamou [2008] NZCA 88; R v Gray [2008] NZCA 224; R v Aram [2007] NZCA 328; R v Latifi [2007] NZCA 372; and Hohipa v R [2015] NZCA 485.
We consider that overall the adjusted starting point was, as submitted by Ms Cooke, within range and appropriately reflected the seriousness of the offending. Although, as we discuss below,[36] we do consider a greater discount should have been provided in recognition of Mr Wharerau’s time spent on restrictive bail.
[36]See below at [42]–[47].
In particular, we conclude that the starting point of seven years and six months’ imprisonment for what Judge Paul identified as the principal charges was well within range, being in the middle of Taueki band 2 (five to 10 years imprisonment). Indeed, although band 2 is recognised as being appropriate for grievous bodily harm offending featuring two or three aggravating features, in this case, as the Judge identified, there were at least five clear aggravating features of the offending.[37]
[37]Sentencing notes, above n 1, at [26]–[29]. These features were set out above at [27].
We are satisfied that none of the cases cited by Mr Braithwaite are appropriate comparators, and that all involved significantly less serious offending in terms of both scale and duration. Each of the cases relied upon by Mr Braithwaite involved only a single victim and only R v Mark involved a subsequent attempt to cover up the principal offending.[38] In the present case, with regard to the principal offending identified by the Judge, we note Mr Wharerau targeted no less than three different vehicles. This led to one crash resulting in significant injuries to two victims, and another car forced off the road. Those incidents were then followed by the aggravated assault of Constable Shelford and the taking of the Police car. It is also important to note that the “less serious” offending was not limited to simply attempting to get away or to otherwise conceal the initial offending. It amounted to serious offending in its own right. It involved Mr Wharerau driving through the crash scene (the reckless driving conviction), running the sixth victim off the road (the third dangerous driving conviction) and undertaking a further aggravated assault of a Police officer (Sergeant Bollard), as well as the assault of a police employee at the Police Station (Mr Pakinga).
[38]R v Mark, above n 32.
We also accept Ms Cooke’s submission that not only was the one-year uplift for the remaining charges within range and reflected the seriousness of the offending but, as the Judge commented in his sentencing notes, Mr Braithwaite had accepted at sentencing that there must be a one-year uplift for the remaining charges.[39] In the circumstances, we are satisfied that the Judge did not err by not making any further adjustment for totality.
[39]Sentencing notes, above n 1, at [21].
We do, however, consider there is merit in Mr Braithwaite’s submission that a more significant discount should have been given for the time Mr Wharerau spent on restrictive bail.
In this case there is no dispute that Mr Wharerau was on bail with a 24-hour curfew for approximately two years. It appears clear from the material before us that compliance was not only onerous but significantly affected Mr Wharerau’s mental health during the period. Although Ms Cooke submitted that Mr Wharerau had breached bail on two occasions, there in fact appears to have been one breach of curfew — in February 2023 for which Mr Wharerau received a warning. Shortly before trial and after Mr Wharerau had what the Crown described as “a verbal and physical altercation with his partner and her father”, consent was revoked for Mr Wharerau to continue to reside at his bail address. There was no breach of bail as such, but in the absence of a bail address he was arrested and remanded in custody through to the commencement of his trial on 30 January 2024.
When assessing the extent of sentencing credit for restrictive bail conditions, an evaluative assessment of all the circumstances is required, although the factors listed in s 9(3A) of the Sentencing Act 2002 may be of assistance.[40] Usually the extent of the credit will depend on the restrictiveness of the bail, the length of time spent on that restrictive bail and the level of compliance by the offender.[41]
[40]Mathew Downs (ed) Adams on Criminal Law — Sentencing (online looseleaf ed, Thomson Reuters) at [SA9.25(8)], citing Keown v R [2010] NZCA 492 at [10]–[13] and R v Tamou, above n 35, at [19].
[41]Tuarae v R [2023] NZCA 229 at [26].
Here the curfew imposed on Mr Wharerau proved as restrictive as electronically monitored (EM) bail, perhaps more so because electronic monitoring largely removes the need for ongoing bail checks carried out by Police. Given it is well established that it is not uncommon for courts to give an allowance of up to 50 per cent of the time spent on EM bail we are satisfied that the nine-month discount sought, or approximately 10 per cent, was appropriate and should have been given.[42]
[42]Compare, for example, the five per cent discount in Kreegher v R [2021] NZCA 22 at [49] allowed for compliance with only moderately restrictive bail conditions for three years.
In recognising the time spent on bail in this way, we reject Ms Cooke’s submissions that a further discount was not warranted given what was termed as the Judge’s “lenient approach” as regards the granting of a five per cent discount for the guilty pleas given at the outset of the trial. That is because it is well within a trial judge’s discretion to recognise the guilty pleas with a minor discount of the type given by the Judge in this case. There can be no doubt, given the scope of the offending, that Mr Wharerau’s pleas not only reduced the length of the trial but meant a number of the victims were not retraumatised by being required to give evidence. In addition, and in any event, it is clear that a discount for time spent on bail falls into a different category reflecting a tangible loss of freedom pending trial that is appropriately deducted from the end sentence imposed.
This means that the appeal should be allowed in part by substituting the sentence of seven years’ imprisonment for the wounding of the father with a sentence of six years and six months’ imprisonment.
Result
The appeal against conviction is dismissed.
The appeal against sentence is allowed. The sentence of seven years’ imprisonment for the wounding of the father is quashed and substituted with a sentence of six years and six months’ imprisonment.
Solicitors:
Braithwaite Law Ltd, Rotorua for Appellant
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent
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