R v Whaanga
[2019] NZHC 2427
•25 September 2019
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 I will first adopt a starting point for that. An uplift will be added to reflect the theft charge.
Starting point
[8] In sentencing you, Mr Whaanga, I first set a starting point to reflect the seriousness of the offending. There is no tariff case for demanding with menaces. However, I have considered a number of sentencing decisions for similar offending, including ones which both your counsel and counsel for the Crown have drawn to the Court’s attention.2 In a schedule that I will annex to the notes I will issue of this sentencing, I set out brief reviews of the circumstances of those other cases. I will not go through them all now. The range of sentences in those cases lies between two years and 14 months’ imprisonment. On the basis of those decisions, taking into account that actual violence was not a feature of your offending and that, although the language you used brought with it an implicit gang threat, you essentially acted alone (your companion does not appear to have been involved in the threatening behaviour as such), I have determined that the appropriate starting point for the demanding with menaces offending is 21 months’ imprisonment.
Adjustments to the starting point
[9] While your counsel argued that the theft of the motor vehicle justified an uplift of four months, I accept submissions for the Crown that an uplift of six months’ imprisonment is justified.
[10] In terms of your previous conviction history, it is worrying and I find it a significant aggravating factor as the 2010 robbery conviction and the 2013 aggravated robbery conviction were committed in similar circumstances. Your counsel acknowledges that these convictions align with your present offending and demonstrate a propensity to use intimidation and violence as a method to assert control over victims to hand over property. It is argued for you that an uplift of four to six months’ imprisonment is sufficient, while the Crown is contending for an uplift of six months. I treat that quite seriously and, in the circumstances, it is my view that an uplift of six months is appropriate.
2 Opetaia v R [2011] NZCA 621; R v Lee HC Auckland T002769, 18 January 2002; Regan v R [2012] NZCA 227; Emery v Police [2014] NZHC 430; Zheng v Police HC Auckland AP175/97, 11 November 1997.
[11] So, the total starting point is 21 months plus six months plus six months, which would make a total of 33 months.
[12] In mitigation, however, you pleaded guilty at a relatively early stage after the nature of the charges was altered and you are therefore entitled to a discount of approximately 20 per cent. So, the result is 26 months.
Final sentence
[13] Mr Whaanga, would you please stand. The effective sentence for the totality of your offending is two years and two months’ imprisonment, made up as follows:
(a)on the charge of demanding with menaces, I sentence you to two years and two months’ imprisonment; and
(b)on the charge of theft, I sentence you to six months’ imprisonment.
[14] These sentences are to be concurrent. I note that the report writer states that you would benefit from the Kaupapa Māori Pathway course, and I certainly hope that you can do that and that you participate positively in it.
[15] As this sentence is more than two years, you are not eligible for home detention. However, had I sentenced you to less than two years, I would not have recommended home detention, given your inability to abide by court-imposed sentence conditions as evidenced in your criminal history.
Dobson J
Solicitors:
Crown Solicitor, Napier Bramwell Bate, Hastings
Annexure
Schedule of comparable cases
Opetaia v R [2011] NZCA 621
Two individuals dressed in gang regalia had gone into a bar and grabbed the bartender by the shirt, demanding $1,200 in protection money and threatening to damage the property if their demands were not met. Starting point of two years was upheld by the Court of Appeal.
R v Lee HC Auckland T002769, 18 January 2002
Two defendants had met the complainant at a restaurant and demanded $10,000 from him. The defendants and their unknown associates had punched the complainant around the head and leg area when he attempted to leave. The complainant’s car was taken until the money could be paid, one of the defendants returning the vehicle later that day when the complainant promised to pay the money. Some days later, however, when the complainant advised he could not get the money until the following day, further threats were made and the complainant was assaulted with a weapon by an unidentified associate. Starting point of two years’ imprisonment for the demanding with menaces charge was adopted.
Regan v R [2012] NZCA 227
The offender had approached a bank teller and demanded money, getting away with $905. The Court considered Opetaia and distinguished the appellant’s offending on the basis that there was no actual violence or even an explicit threat of violence. The appellant had acted alone, during the day and in a commercial setting, and there was no suggestion of any gang affiliation. The Court of Appeal allowed an appeal against a sentence of 29 months’ imprisonment for one charge of demanding with menaces, substituting one of fourteen months’ imprisonment instead.
Emery v Police [2014] NZHC 430
Mr Emery, along with three other patched gang members, had gone to the complainant’s address. Having been invited in, Mr Emery told the complainant they were there to “chat” about some money the complainant was said to have owed. Mr Emery instructed the complainant to give him his Playstation 3 and controls, along with this EFTPOS card, telling him he would get the Playstation back once Mr Emery received $1,500. Starting point of two years’ imprisonment, taking into account that the offending occurred in the complainant’s home, upheld on appeal.
Zheng v Police HC Auckland AP175/97, 11 November 1997
Mr Zheng and a group of youths went to a restaurant, occupying most of its seats. The restaurateur, having heard of a similar situation where a restaurant had to close down when a group of young people occupied the seats and asked for money, thought he was being asked for protection money and asked Mr Zheng how much money he wanted. The group left after about 10 to 15 minutes, the restaurateur asking for a week to think about it. On the second visit, only three or four young men came and the restaurateur refused to pay. The group left. A two year sentence of imprisonment was upheld on appeal.