R v Wharerau - [2024] NZHC 1200

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2020-063-4302

[2024] NZHC 1200

THE KING

v

CLIFF CHARLES WHARERAU

Hearing: 15 March 2024

Appearances:

R Annandale and P Hamber for the Crown C Muston for Mr Wharerau

Sentence:

15 March 2024

SENTENCING NOTES OF ROBINSON J

Solicitors/counsel:
Crown Solicitor, Whangārei C Muston, Auckland

R v WHARERAU [2024] NZHC 1200 [15 March 2024]

Introduction

[1] Mr Wharerau, you appear for sentence on seven offences having been found guilty by a jury of:

(a)participating in an organised criminal group (charge 1);1

(b)aggravated robbery (charge 2);2

(c)kidnapping (charge 3);3

(d)unlawful possession of a firearm (charge 4);4

(e)using a firearm against a law enforcement officer (charge 5);5 and

(f)arson x2 (charges 7 and 8).6

[2] You have advised those who have helped prepare the Court’s pre-sentencing material, and Mr Muston confirms on your behalf that you maintain your innocence, and that you intend to appeal your conviction. Of course, you are well within your rights to appeal, but you will understand that my task today is to sentence you in accordance with the jury’s verdicts.

[3] Sentencing is a two-stage process. First, I will set a starting point that this type of offending would attract. This involves identifying particularly relevant factors of your offending that make it more or less serious. I also need to consider whether this starting point should be adjusted for the totality of the offending, so that the term of imprisonment that is ultimately imposed is proportionate to the totality of your offending and your overall culpability.

1      Crimes Act 1961, s 98A. Maximum penalty of 10 years’ imprisonment.
2      Crimes Act, s 235(c) and 66. Maximum penalty of 14 years’ imprisonment.
3      Crimes Act, s 209(b) and 66. Maximum penalty of 14 years’ imprisonment.
4      Arms Act 1983, s 45(1); maximum penalty of 4 years’ imprisonment.
5      Crimes Act, s 198A(1). Maximum penalty of 14 years’ imprisonment.
6      Crimes Act, s 267(1)(b). Maximum penalty of 14 years’ imprisonment.

[4] In the second stage of the sentencing process I take into account your relevant personal circumstances. I must determine whether the starting point should be adjusted through uplifts or discounts because of those personal circumstances in order to reach an end sentence that is appropriate for you.

The offending

[5] In order to do all of that, I will describe your offending and the factual basis upon which I am sentencing you today.

[6] The offending took place in October 2020, shortly before and during Labour weekend. At various times over that weekend, and immediately before it, you were with your co-offenders, Mr Coe and Mr B.7 Prior to your trial Mr B pleaded guilty to all of the offences to which you have been convicted, apart from using a firearm against a law enforcement officer with which he was not charged. He was sentenced in September 2022 and as you know gave evidence for the Crown at trial.

[7] Mr Coe…

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 Wharerau

Details

AGLC: R v Wharerau [2024] NZHC 1200
Case: [2024] NZHC 1200
Decision Date: 15 March 2024

CaseChat Overview and Summary

Cliff Charles Wharerau was sentenced in the High Court of New Zealand for seven serious offences, including participating in an organised criminal group, aggravated robbery, kidnapping, unlawful possession of a firearm, using a firearm against a law enforcement officer, and arson. The court identified significant aggravating features such as the use of multiple firearms, violence, and the extreme vulnerability of the victim, Mr T. The court also considered the impact on law enforcement officer Ms V, who was shot at by Wharerau. Wharerau had a history of similar offending, including firearms possession and aggravated robbery, for which he had been imprisoned in 2015. The court imposed a sentence of 13 years and 7 months' imprisonment for the aggravated robbery and kidnapping, with concurrent sentences for the other charges, bringing the total to 13 years and 7 months, with a 40% minimum period of imprisonment. The court took into account Wharerau's criminal history and the need to protect the community and deter future offending. The sentence reflects the seriousness of the offences and the need for accountability and denunciation of Wharerau's conduct.

Orders