R v Whare - [2023] NZHC 1719

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2021-070-4221

[2023] NZHC 1719

THE KING

v

FREDERICK WHARE

Hearing: 29 June 2023

Appearances:

C A Bourke for the Crown W T Nabney for Mr Whare

Judgment:

29 June 2023

SENTENCING REMARKS OF HARLAND J

Introduction

[1] Mr Whare, as I said at the outset, there is a process and I am going to have to go through quite a few things in my sentencing decision so I just ask you to bear with me while I do that. And because of the distance, it is hard to engage with you directly but these remarks are addressed to you and you will get, of course, a copy of my written remarks in due course.

[2] Mr Whare, you appear before the Court today for sentence, having pleaded guilty to 57 charges arising out of the Police operation codenamed Operation Silk.

[3]The charges comprise:

R v WHARE [2023] NZHC 1719 [29 June 2023]

(a)        15 charges of conspiring to supply methamphetamine,1 those charges carry a maximum penalty of 14 years’ imprisonment on each charge;
(b)       8 charges of possessing methamphetamine for the purposes of supply,2 those carry a maximum penalty on each charge of life imprisonment;
(c)        18 charges of supplying methamphetamine,3 which also carry a maximum penalty of life imprisonment;
(d)       three charges of conspiring to sell cannabis,4 which have a maximum of seven years’ imprisonment;
(e)        one charge of supplying cannabis,5 that has a maximum penalty of eight years’ imprisonment;
(f)         one charge of unlawfully possessing a prohibited firearm,6 which carries of penalty of five years’ imprisonment, maximum;
(g)       one charge of unlawfully possessing a pistol,7 the maximum penalty for that is three years and/or a $4,000 fine;
(h)       two charges of possessing cannabis for sale,8 that has an eight year maximum imprisonment available;
(i)          two charges of possession of cannabis9 which has a maximum of three months or a $500 fine;

1      Misuse of Drugs Act 1975, s 6(2A) - Charges 56, 57, 98, 102, 103, 113, 118, 138, 145, 155, 161,
164, 166, 169 and 198, Crown Charge Notice for resolution purposes dated 18 July 2022.
At sentencing it was noted there were 16 charges, when there were in fact 15. A charge withdrawn at arraignment was inadvertently included. This has no impact on the sentence delivered.
2      Misuse of Drugs Act, ss 6(1)(f) and 6(2) - Charges 58, 62, 72, 73, 93, 104, 147 and 167.
At sentencing it was noted there were nine charges, when there were in fact 8. A charge withdrawn at arraignment was inadvertently included. This has no impact on the sentence delivered.
3      Misuse of Drugs Act, ss 6(1)(c) and 6(2) - Charges 59, 63, 74, 94, 115, 116, 117, 120, 121, 123,
130, 146, 158, 159, 160, 162, 165 and 168.
At sentencing it was noted there were 21 charges, when there were in fact 18. Charges withdrawn at arraignment and at…

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 Whare

Details

AGLC: R v Whare [2023] NZHC 1719
Case: [2023] NZHC 1719
Decision Date: 29 June 2023

CaseChat Overview and Summary

Frederick Whare appeared before the High Court of New Zealand in Tauranga for sentencing after pleading guilty to multiple charges related to drug supply, firearms possession, and other offenses. The court heard that Whare was involved in the activities of the Mongols Motorcycle Club, specifically dealing in methamphetamine and cannabis, and was part of a retaliatory attack involving firearms. The legal issues centered on determining the appropriate sentence for Whare's involvement in these serious criminal activities, considering the principles of the Sentencing Act 2002 and the specific circumstances of the offenses.

The court assessed the seriousness of Whare's methamphetamine and cannabis offenses, noting his active role and the quantities involved. The starting point for his methamphetamine offenses was set at 10 years' imprisonment, acknowledging his significant role and the amount of drugs he dealt. The court also considered Whare's involvement in firearms offenses and other minor charges. Various mitigating factors were taken into account, including Whare's early guilty plea, his addiction issues, and his efforts at rehabilitation while on electronic monitoring bail. The court imposed a sentence of seven years and eight months' imprisonment, with all sentences running concurrently, aiming to reflect the seriousness of the offenses while considering Whare's personal circumstances and potential for rehabilitation.

Orders