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…

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 [2016] NZHC 2992
Case: [2016] NZHC 2992
Decision Date: 12 December 2016

CaseChat Overview and Summary

The case of R v Whaanga concerns the sentencing of Harley Guy Mallard Whaanga, who pleaded guilty to charges of assault with a weapon, arson, and unlawful taking. The offences arose out of a dispute with Mr Rope, leading to a series of violent incidents. Whaanga assaulted Mr Rope with a car and a steel pipe, set Mr Rope’s car on fire, and took the vehicle. The court had to determine whether the sentences for the offences should be imposed concurrently or cumulatively and, if so, the appropriate length of the sentence.

The court held that the sentences for the arson and unlawful taking offences should be imposed concurrently, but cumulatively on the assault with a weapon charge. The court first assessed the starting point for the assault with a weapon offence, considering the aggravating and mitigating factors. It found the use of a car as a weapon and the significant harm caused to the victim were particularly aggravating. However, the court also recognised elements of provocation and defence of another, and Mr Rope’s conduct as mitigating factors. The court adopted a starting point of two years and six months for the assault charge. For the arson and unlawful taking offences, the court found premeditation and vindictiveness to be aggravating factors but considered the overall gravity of the offending to be less severe than some comparable cases. It adopted a starting point of 12 months for these offences. After considering personal mitigating factors, such as time spent on restrictive bail, strong family support, and genuine remorse, the court reduced the total sentence by four months. It further reduced the sentence by 15 per cent for the guilty plea. The resulting sentence was two years.

The court considered home detention to be an appropriate sentence for Whaanga, given the out-of-character nature of the offending, lack of risk of re-offending, and compliance with bail conditions. The court imposed a sentence of nine months’ home detention for the assault with a weapon charge, and three months’ home detention for the arson and unlawful taking charges, to be served concurrently but cumulatively on the assault charge. The total sentence was 12 months’ home detention, subject to special conditions including abstaining from alcohol and illicit drugs, and attending a programme or counselling to address the offending.

Orders