R v Whaanga - [2019] NZHC 2427

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2019-020-280

[2019] NZHC 2427

THE QUEEN

v

ELIJAH AKEEM WHAANGA

Hearing: 25 September 2019

Counsel:

S B Manning for Crown R B Philip for defendant

Sentence:

25 September 2019

SENTENCING NOTES OF DOBSON J

[1] Mr Whaanga, you appear for sentence today having pleaded guilty to charges of demanding with menaces and theft.1

[2] As to your offending, in the early hours of 2 December 2018 you were attending a social gathering in Hastings when the complainant and three friends arrived in his vehicle. With a female friend, you walked up to the driver’s door and, before he was able to exit his vehicle, removed the keys from the ignition and said, “Sieg fucking heil, get the fuck out of the car”.

1 Crimes Act 1961, ss 239(2) and 223(b) respectively: maximum penalty seven years’ imprisonment for each.

R v WHAANGA [2019] NZHC 2427 [25 September 2019]

[3] Fearing for his safety, and for that of the other occupants of the vehicle, the complainant got out. You then got into the driver’s seat of the car and, in the company of your friend, drove off, leaving the area and driving to Wellington where you were stopped and arrested by Police three days later on 5 December 2018.

[4] A victim impact statement has been provided by the complainant. Your actions had a severe impact on him. He says that at the time of the incident he felt physically sick and was frightened, not only for himself but for his friends who were passengers in the car. He now drives around with his doors locked. Even though the car you stole from him was returned, it was, in his words, “thrashed” and needed a new gear box which he could not afford, so he was without a car for months. This meant he could not get to work so he had to leave his job.

Pre-sentence report

[5] In the pre-sentence report about you, your likelihood of re-offending was assessed as being at a medium level, although given your history of violence the risk you pose of harming others was assessed as high. It was also noted that you had previously breached community-based sentences on seven occasions and that there had been multiple bail breaches, so you were assessed as being at a high risk of failing to comply with Court-imposed conditions. The report writer, however, did note that you appeared willing to address your offending behaviour and considered that you exhibited genuine remorse.

[6] I have obviously read your letter addressed to the complainant that was provided yesterday, in which you have put yourself in the complainant’s position. That shows a measure of insight, and you should keep that thought process to stop you from doing this sort of thing ever again.

Sentencing approach

[7] Although both charges here have the same maximum penalty, the demanding with menaces is the lead charge and…

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 R v Whaanga

Details

AGLC: R v Whaanga [2019] NZHC 2427
Case: [2019] NZHC 2427
Decision Date: 25 September 2019

CaseChat Overview and Summary

In the case of R v Whaanga, the defendant pleaded guilty to charges of demanding with menaces and theft. The defendant attended a social gathering in Hastings on 2 December 2018. The defendant removed the keys from the complainant’s car and demanded that he leave the vehicle, saying, "Sieg fucking heil, get the fuck out of the car". The complainant left the vehicle, fearing for his safety and that of the other occupants. The defendant drove off with the complainant’s car, leaving the area and driving to Wellington. The defendant was arrested by police three days later on 5 December 2018. The complainant had a severe reaction to the incident and had to leave his job as he could not get to work without a car. The defendant had previously breached community-based sentences on seven occasions and had multiple bail breaches. The defendant exhibited genuine remorse and insight into his actions.

The legal issues the court had to decide were the appropriate starting point and any adjustments to the starting point for the defendant’s offending. The court considered sentencing decisions for similar offending and determined that the appropriate starting point for the demanding with menaces charge was 21 months' imprisonment. The court accepted that an uplift of six months' imprisonment was justified for the theft charge. The court found the defendant's previous conviction history to be a significant aggravating factor and accepted that an uplift of six months' imprisonment was appropriate. The court found that the defendant was entitled to a discount of approximately 20 per cent for pleading guilty at a relatively early stage. The final sentence was two years and two months' imprisonment, made up of two years and two months for demanding with menaces and six months for theft, to be served concurrently.

The court noted that the defendant would benefit from the Kaupapa Māori Pathway course and hoped that the defendant would participate positively in it. The court noted that the defendant was not eligible for home detention as the sentence was more than two years, and had he been sentenced to less than two years, the court would not have recommended home detention given the defendant's inability to abide by court-imposed sentence conditions as evidenced in his criminal history.

Orders