R v Whaanga

[2016] NZHC 2992

IN THE HIGH COURT OF NEW ZEALAND

WHANGAREI REGISTRY

CRI-2014-088-3201

[2016] NZHC 2992

THE QUEEN

v

HARLEY GUY MALLARD WHAANGA

Hearing:	12 December 2016
Appearances:	M Smith and J Scott for the Crown C Cull for the Defendant
Judgment:	12 December 2016

SENTENCING NOTES OF EDWARDS J

Solicitors:           Crown Solicitors, Whangarei Counsel:  C S Cull, Kerikeri

R v WHAANGA [2016] NZHC 2992 [12 December 2016]

[1]    Mr Whaanga, you appear for sentence having pleaded guilty to one charge of assault with a weapon, one charge of arson, and one charge of unlawful taking. The maximum penalties for these offences are five years’ imprisonment for the assault charge, and seven years’ imprisonment for the arson and unlawful taking charges.1

Offending

[2]I now turn to the events which gave rise to the charges.

[3]    The offending occurred in the context of an ongoing dispute between you and your partner on the one hand, and Mr Rope on the other. Mr Rope’s former partner lived on your street and he would spend time there on occasion.

[4]    At about 8 pm on 30 November 2014, you and your partner travelled to an address in Whangarei in order to confront Mr Rope in relation to this ongoing dispute. At the address, you got into a fight with Mr Rope. You punched him numerous times in the face. You then got into Mr Rope’s vehicle and drove it to your address where you retrieved a petrol can. You then drove his car to another location, doused the car in petrol, and set it alight. Mr Rope estimates the value of his car at $4,000 and says that there was $2,000 worth of clothes in the vehicle. Those events give rise to the arson and unlawful taking charges.

[5]    The events  giving rise  to the assault with a weapon charge occurred  on      2 December 2014. At about midday on that day your partner was at home. Mr Rope’s ex-partner drove up to the front of your address in her car. She pleaded for help saying Mr Rope was coming after her. Your partner saw Mr Rope coming towards your address yelling and screaming abuse. She called the police and ran back to her home. Mr Rope continued to yell abuse at your partner from outside the address.

[6]    At this point in time, you returned home. You drove around the corner to see Mr Rope standing outside your place,  yelling at  your partner.  You  accelerated to  50 kilometres per hour and drove up onto the kerb. You accelerated towards Mr Rope, hitting him with the car, and causing him to fall down. You then turned the vehicle

1      Crimes Act 1961, ss 202C, 267(2) and 226.

around on the grass verge and accelerated towards Mr Rope again hitting him with the car. That caused Mr Rope to stumble to the side of the vehicle.

[7]    Mr Rope limped away towards another man present at the time. You got out of your vehicle and walked towards Mr Rope with a steel pipe. You told Mr Rope you were going to “smash his brains in”. The other man present handed a rifle to Mr Rope who fired a shot directly at you. You avoided the shot and ran back towards your address. Mr Rope reloaded the gun and fired two further shots at you.

[8]Mr Rope was admitted to hospital with serious internal bleeding.

[9]    When spoken to by police you stated that you had run Mr Rope over twice with the intention of killing him, and you had pulled out a steel pipe with the intention of smashing his brains in.

[10]   You were originally charged with attempted murder, arson and unlawful taking. The attempted murder charge was withdrawn and substituted with the assault with a weapon charge on the first day of trial. You pleaded guilty at that time.

Victim impact statement

[11]   Mr Rope filed a victim impact statement. He states that he is recovering from his injuries and still has shoulder and knee pain and is undertaking physiotherapy. He says he is remorseful for his part in the incident and would like to apologise to your family and to the police, and to his own family for letting them down. He states that he would like to get on with his life and has put the incident in the past.

Pre-sentence report

[12]I have considered the pre-sentencing report.

[13]   You are 28 years old. You have a partner of 11 years, and two sons who are seven and eight years old. You are currently living in Hikurangi and have good family support.

[14]   The report writer notes that you have an attitude of entitlement as evidenced by the taking of Mr Rope’s car and setting fire to it. But you are recorded as having accepted that what you did was wrong. The report writer notes that you have a protective attitude towards your family. You told the report writer that you drove the car at Mr Rope because you saw him arguing with your partner.

[15]   You have had steady employment for the last eight years, and have a good employment record. A former manager of your employer has spoken highly of you and provided a reference for the purposes of sentencing.

[16]   You have two minor offences from 2005. The pre-sentence report notes that there is nothing in your criminal history to suggest a risk of re-offending or a risk of danger to others. The report writer notes that your offending, and use of violence, appear to be very specific to the set of circumstances which arose.

[17]Home detention is recommended as an appropriate sentence.

Sentencing framework

[18]I now set out the sentencing framework adopted in sentencing you today.

[19]   In fixing a sentence, I take into account the principles and purposes embodied in ss 7 and 8 of the Sentencing Act 2002. Those purposes which are particularly relevant in your case include:

(a)holding you accountable for the harm done to the victim and community (s 7(1)(a));

(b)denouncing your conduct and deterring others from committing the same or a similar offence (s 7(1)(e) and (f)); and

(c)assisting in your rehabilitation and reintegration into the community  (s 7(1)(b)).

[20]The principles which are of particular relevance include:

(a)imposing the least restrictive outcome appropriate in the circumstances (s 8(g));

(b)taking account of your personal, family, whanau, community and cultural background (s 8(i)); and

(c)taking account any outcomes of restorative justice processes, including anything referred to in s 10 (s 8(j)).

Concurrent or cumulative?

[21]   An issue in your case is whether to impose concurrent or cumulative sentences for all three offences. The Crown accepts that concurrent sentences for the arson and unlawful taking charges are appropriate, but seeks a cumulative sentence for the assault with a weapon charge. That means the sentences would be served one after the other. Your counsel seeks concurrent sentences, which means you would serve the sentences for the three offences at the same time.

[22]   The arson and unlawful taking offences are different in kind to the assault with a weapon charge (s 84(1)). Although they form part of the ongoing dispute between you and Mr Rope, they are also distinct events in terms of both time and place.

[23]   Applying the statutory guidelines and applicable principles, I consider the sentence for assault with a weapon should be cumulative on the other two charges.

[24]   My approach to sentencing you today is to first assess the starting point for the assault with a weapon offence, and then consider the starting point for the arson and unlawful taking offences. Those two starting points will be added together to get a total starting point for your sentence. I will then go on to consider the adjustments to that total starting point for personal aggravating and mitigating features.

Starting point

Assault with a weapon

[25]The first step is to set a starting point for the assault with a weapon offence.

[26]   Crown counsel asks me to fix culpability with reference to the Court of Appeal guideline decision in Nuku v R.2 That judgment concerns different offences, and caution must be exercised when applying it by analogy.3 But that case has been applied to cases involving assault with a weapon charge.4 I consider it to be of assistance in assessing the gravity of your offending.

[27]   The sentencing bands set out in Nuku depend on a number of aggravating features present in your offending. There are three such features which apply in your case:

(a)First, extreme violence. You hit Mr Rope twice with a car causing him significant harm.

(b)Second, use of a weapon. Although the use of a weapon is part of the offence, the nature of the weapon must also be taken into account. Using a car as a weapon poses a lethal risk. You used it twice. You also threatened Mr Rope with a steel bar. These are particularly aggravating features of your offending.

(c)Third, the seriousness of the injuries. You caused Mr Rope to be hospitalised with internal bleeding. He reports having ongoing pain in his shoulder and knee requiring physiotherapy.

[28]   I do not consider your offending to be premeditated, or to involve vigilante action. Rather, it is consistent with you reacting impulsively when you perceived your partner to be threatened by Mr Rope.

[29]   I accept that there are elements of provocation and defence of another involved in your offending which mitigates your culpability. The Crown also accepts that Mr Rope’s conduct is a significant mitigating feature (s 9(2)(c)).

2      Nuku v R [2012] NZCA 584, [2012] 2 NZLR 39.

3      Waitohi v R [2014] NZCA 614 at [16]; and Hannay v New Zealand Police [2014] NZHC 2015 at [22].

4      Hurinui v R [2014] NZCA 290 at [26]–[27].

[30]   Taking all these factors into account, I agree with Crown counsel that the combination of the aggravating and mitigating factors places you on the cusp between band 2 and band 3 in Nuku. Band 2 offending attracts a starting point of up to three years’ imprisonment. Band 3 attracts starting points from two years up to the statutory maximum, which in your case is five years’ imprisonment.5

[31]   The Crown has referred me to a number of cases which it says are comparable.6 However, those cases involve offending more serious than yours as reflected in the more serious charges. Starting points in excess of the statutory maximum in this case were adopted in some of those cases. Your culpability is to be assessed with reference to the summary of facts which you have agreed, and the charge to which you pleaded guilty. I do not regard those cases as comparable to your offending.

[32]   Your counsel refers me to Hurinui v R and Edmondson v Police. They establish starting points of between 14 months and 18 months for assaults with weapons.7 The cases are not directly analogous however as they do not involve the use of a car.

[33]   The cases of Manuel v Police,8 and Hinton v Police,9 both involve the use of a car as a weapon. Starting points of 18 months and 12 months were found to be within range in those cases. I consider your offending to be more serious than both these cases however. You deliberately used a car as a weapon on two occasions. You also caused more significant injury to the victim. There was also the threat with the steel pipe. Those features justify a much higher starting point than adopted in either Manuel or Hinton in my view.

[34]   The Crown seeks a starting point of between three to four years’ imprisonment for this offending. Your counsel proposes a starting point of between 12 to 14 months’ imprisonment.

5      Nuku v R, above n 2, at [38].

6      R v Bolt HC Rotorua CRI-2009-077-1497, 23 October 2010; R v Clarke HC Auckland CRI-2010- 090-1184, 7 April 2011; and R v Goyen CA285/05, 1 May 2006.

7      Hurinui v R, above n 4; and Edmondson v Police [2015] NZHC 3184.

8      Manuel v Police [2014] NZHC 2648.

9      Hinton v Police [2015] NZHC 560.

[35]    Taking into account the gravity of your offending with reference to Nuku, and the starting points adopted in other comparable cases, I adopt a starting point of two years six months for the assault with a weapon offence.

Arson and unlawful taking

[36]   The next step is to consider the starting point for the arson and unlawful taking charges.

[37]   I do not consider the cases relied on by the Crown to be comparable.10 Both cases involved arson charges under s 267(1), which attracts a maximum sentence of 14 years’ imprisonment. The more serious charge reflects the more serious level of offending involved in both those cases. Cox v R involved at least two fires being lit and greater financial loss than in your case. McDowell also involved two separate incidences and the aggravating features included the vulnerability of the victims who were in bed asleep, and the appellant’s unlawful presence at the property at the time. Those particular features are not present in your case.

[38]   In Keen v R an arson was committed in the course of committing other burglary offences. The appellant had entered a campervan and removed a box of beer and then set the campervan on fire. The campervan was damaged beyond repair and $34,598 worth of damage was caused. The District Court Judge considered the aggravating features of the arson were the extent of the loss and damage, the inherent danger to the public, and the fact that the arson was committed in the course of committing another crime. The Judge considered the offending could attract a starting point of two years, but adopted 12 months bearing in mind totality principles. That starting point was upheld on appeal.11

[39]   In your case, there was premeditation in your offending as shown by you taking the car, retrieving the petrol can, and driving it to another location before setting it alight. Your offending was also vindictive in that it responded to Mr Rope’s own

10     Cox v R [2013] NZCA 194; and McDowell v R [2014] NZHC 3310.

11     Keen v R [2014] NZCA 299.

behaviour, although, as the Crown accepts, Mr Rope’s behaviour was also reprehensible.

[40]   Your counsel proposes an uplift of three months for this offending. The Crown considers a starting point of between three to four years’ imprisonment would be appropriate for this charge, but taking into account totality proposes a 12 month starting point.

[41]   Taking into account all aggravating and mitigating features of your offending, and having regard to totality principles, I adopt a starting point of 12 months for the arson and unlawful taking offences.

Totality

[42]   The total of the two starting points is three years six months’ imprisonment. I am satisfied that this accurately reflects the overall gravity of your offending and no further adjustment is required to the starting point to reflect totality principles.

Personal aggravating and mitigating factors

[43]   The next step is to consider any adjustments to be made for personal aggravating and mitigating factors.

[44]   The Crown accepts that there are no personal aggravating factors in your case. Whilst you do have two minor convictions they are not relevant and no uplift is required.

[45]   Your counsel suggests that some credit should be given for the time spent on restrictive bail. Although you have not been on EM bail, time spent on restrictive bail can nevertheless justify a separate discount. An evaluation of all the circumstances is required in assessing how much credit to give you for that factor.12

[46]   You have been on a 24 hour curfew for close to two years. Your bail conditions have allowed you to leave the house to attend work provided you are driven by a driver

12     Schuster v R [2011] NZCA 343 at [10]. See also R v Gray [2008] NZCA 224 at [14].

approved by the police to and from the address. There have been no issues with compliance whilst on bail. In these circumstances I consider a discount of 10 months would be appropriate to recognise the restrictive bail conditions for the past two years. That brings your sentence to two years, eight months or 32 months.

[47]   In terms of other personal mitigating factors, I note that you have very strong social and family support. You also have an excellent employment record and the prospects of future employment look good. I have read a number of character references and letters in support. They suggest that your offending was out of character. That bodes well for rehabilitation and reintegration into the community.

[48]   You have also accepted responsibility for your actions. I consider your regret and remorse to be genuine. The effort you have made to engage in restorative justice supports that view.

[49]   Because of your prior convictions I cannot give you a separate discount for previous good character. However I consider these other factors justify a discount of four months from the starting point. That brings your sentence to two years four months or 28 months.

[50]   The last factor to consider is a discount for the guilty plea. The Crown submits that no more than 10 to 15 per cent is warranted given the reduced charge, and the strength of the Crown case. Your counsel submits that something close to the full 25 per cent is required because an offer to plead to a reduced charge was made on 5 March 2015.

[51]   The downgrading of the charge from attempted murder to assault with a weapon can be a concession in itself.13 The case against you looked relatively strong given your admissions to the police. However, you offered to plead guilty to this reduced charge on 5 March 2015. That offer was not accepted by the Crown at the time, and the charge was not amended until the morning of the trial. You pleaded guilty at that time. Taking into account all of those circumstances, I consider a 15 per cent discount for the guilty plea, or approximately four months, would be appropriate.

13     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [62]

[52]This would result in an end sentence of two years.

Home detention

[53]The end sentence I have reached is one where home detention is an option.

[54]   The sentence of home detention is the second most restrictive sentence next to imprisonment. It is not a soft option and brings with it a considerable measure of deterrence and denunciation. The sentence of home detention must be served in full and it is not equivalent to a sentence of imprisonment.

[55]   I consider home detention to be an appropriate sentence in your case. The offending appears to be out of character as confirmed in the pre-sentencing reports and letters of support. On that basis you do not pose a risk of harm to others or of re-offending. Your compliance with bail conditions for the past two years adds further reassurance of that. Conditions which would allow you to continue employment whilst on home detention would serve the principles of reintegration and rehabilitation in my view. The proposed special conditions in the pre-sentence report would also assist with your rehabilitation and reintegration.

[56]   When I stand back and consider the gravity of your offending as a whole, I am satisfied that a sentence of 12 months’ home detention is proportionate to the gravity of your offending and meets the principles of sentencing identified at the outset.

Sentence

[57]Mr Whaanga, please stand.

[58]   On the charge of assault with a weapon I sentence you to nine months’ home detention.

[59]   On the charges of arson and unlawful taking, I sentence you to three months’ home detention.

[60]   The sentences for the arson and unlawful taking are to be served concurrently, but those sentences are to be cumulative on the offence of assault with a weapon. That makes a total end sentence of 12 months’ home detention.

[61]   The sentence of home detention is to be subject to the standard conditions and the following:

(a)You are not to purchase, possess or consume any alcohol or illicit drugs for the duration of the home detention sentence.

(b)You are to attend and to complete an appropriate programme or counselling to address your offending to the satisfaction of a probation officer. The specific details of that programme shall be determined by the probation officer.

[62]Mr Whaanga, you may stand down.

Edwards J