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 faced the same charges as you. The jury found him guilty of participating in an organised criminal group and unlawfully possessing a firearm. But he was found not guilty on the other charges.

[8]        As I have said, it is obviously important that the sentence that I impose on you today is consistent with the jury’s verdicts. It also needs as far as possible to be consistent with the sentences imposed on Mr B and Mr Coe. Being consistent with those sentences means that I need to take into account the similarities and the differences in the offending, and your overall culpability and each of your personal circumstances.

[9]        I accept that you, or I find that you and your co-defendant Mr Coe are patched members of the Rebels Motorcycle Club. At the time of the offending Mr B was your prospect.

7      That witness has permanent name suppression. In these notes I will refer to him as Mr B.

[10]      On the 22nd of October 2020, the Thursday before Labour weekend, you and Mr B drove from where you lived in Te Awamutu and Tokoroa and visited Mr Coe at his home in South Auckland. There you made a plan to drive to Northland to commit an armed robbery, perhaps of a bank or an Armourguard truck. Mr Coe provided the group with a shotgun for that purpose.

[11]      The three of you drove North on the 22nd of October 2020 and returned early in the morning of Saturday the 24th of October 2020. During that time, you stayed with whanau and attended a Rebels MC meeting. However, no further offending occurred during that trip.

[12]      After the first trip north, you returned home to Te Awamutu to gather some clothes and other supplies.

[13]      You and Mr B then returned to Northland in your Honda Odyssey looking to rob an Armourguard truck, or a bank. The Crown case at trial was that Mr Coe was also with you during that trip, but the jury’s verdicts were not consistent with that. By this stage you had at least two firearms. While up north you acquired a decoy car. You rehearsed how the robbery would take place, and you scoped out suitable areas where it might take place.

[14]      That appears to be what you were doing late in the evening on the 26th October 2020 when you came across Mr T in his Nissan Skyline parked at a rest area near Waipapa on State Highway 10.8 You drove into the rest area and went up to Mr T’s car. You were one of two who pointed firearms towards Mr T’s head whilst banging on the outside of his car. You dragged him out of his car, and you forced him at gunpoint to lie on the ground. Mr B searched the car, and you took Mr T’s phone and his wallet. You then forced Mr T to call his bank to arrange a transfer of funds from his savings account into an account which you could access through ATMs.

[15]      As I have said, a third person was with you at that time. The Crown case was that it was Mr Coe, but the jury’s verdicts do not support that.

8      That witness has permanent name suppression. In these notes I will refer to him as Mr T.

[16]      In any event, together with Mr B you took Mr T’s debit card. You drove his car to Kerikeri and around Kerikeri while forcing him to lie down on the backseat. You managed to withdraw approximately $2,400 cash from various ATMs. You then returned to the rest area. You tied Mr T’s hands together, blind folded him and put him in the boot of his car. You drove around for a period of time before ending up in Matauri Bay. You and the others in the car stopped to sleep, whilst Mr T remained in the boot. While you were sleeping Mr T managed to escape from the boot of the car. You awoke as he was doing so. Mr T was chased by either you or a co-offender, and a single shot was fired in his direction.

[17]      As you know, the Crown case was that you had two co-offenders in this offending. Mr T initially recollected there may have been four of you all together but for present purposes I don’t think anything turns on that. You and Mr B have been convicted of the offending, and I am satisfied that you had a leading role in it.

[18]Turning to the offending against Ms V.9

Ms V

[19]      Sometime after Mr T managed to escape you and Mr B and it appears somebody else, were driving along Puketona Road.

[20]      Ms V, then Constable V, drove up behind you in her Police car. You were one of two offenders who got out of the car. You were each wearing masks and carrying firearms. Ms V explains that one of the offenders went to the door on the driver’s side of her car, while the other stood on the passenger side of the car in front of the bonnet. You were both pointing guns at her. At that point the offender standing on the passenger side of the car discharged the firearm into that side of the windscreen. At least in that respect, it was fortunate that Ms V was on her own that night and the passenger seat was empty.

[21]      I am satisfied that the evidence shows that you were the offender who shot in the direction of Ms V’s vehicle and into the windscreen. Your DNA was found on

9      That witness has permanent name suppression. In these notes I will refer to her as Ms V.

shotgun cartridges located nearby. I also take into account Mr B’s evidence. In order to reach the verdicts it did, the jury must have accepted Mr B’s evidence that you were in the car with him and got out of the car with the firearm. He says that you left the vehicle from the passenger side, and that the weapon you were holding was warm when you gave it to him after you returned to the vehicle. Although Mr B also recalled you saying that you did not realise it was a Police car, but the jury must have found that you did, in order to have convicted you of this offence.

[22]      I have read Ms V’s victim impact statement. She did not want that read in Court, but you and Mr Muston I’m sure will have seen it. Sufficient to say that you’re offending against her was traumatic. She continues to suffer its consequences in different ways, that will likely continue for some time.

The arsons

[23]      Together with your co-offenders, you then drove to a rural address where the decoy car and Mr T’s Nissan Skyline were burned. Those cars were burned by your co-offenders, and you drove them away.

[24]I am going to now refer to the relevant purposes and principles of sentencing.

Purposes and principles of sentencing

[25]      In sentencing you today I must have regard to the purposes and principles of sentencing as set out in the relevant provisions of the Sentencing Act. I consider that the primary purposes of sentencing in your case are to hold you accountable;10 to denounce your conduct;11 to deter you and others from committing similar offences in the future;12 and to protect the community from your offending.13

[26]      In terms of the relevant sentencing principles, I also consider the gravity of your offending including the degree of your culpability;14 the seriousness of the type

10     Sentencing Act 2002, s 7(1)(a).

11     Sentencing Act, s 7(1)(e).

12     Sentencing Act, s 7(1)(f).

13     Sentencing Act, s 7(1)(g).

14     Sentencing Act, s 8(a).

of the offence in comparison with other types of offences;15 the desirability of consistent sentences;16 and the need to impose the least restrictive outcome appropriate in the circumstances.17

Cumulative/concurrent

[27]      You would have heard the submissions made by the lawyers this morning concerning sentencing including whether sentencing should be on a cumulative or a concurrent basis.

[28]      The Crown says, and I agree, that all seven offences are a connected series of offences.18 The Crown submits that a concurrent sentencing approach would be appropriate, and I agree with that. But the Crown says that it is also important that an appropriate overall starting point, when sentenced concurrently, cannot exceed a maximum penalty for any one offence – being 14 years in this case. So in these circumstances the Crown says that a cumulative sentence for the offence of using a firearm against a law enforcement officer is appropriate to reflect the overall culpability of the offending.

[29]      The Crown says that even when concurrent sentencing would be appropriate, where it is necessary to reflect culpability, the Court can use cumulative sentences to impose a sentence that adequately reflects culpability.19 The Crown submits that the Court should adopt a combined starting point of eight and a half – nine years imprisonment for the aggravated robbery and the kidnapping offending. It says an uplift of 15 to 18 months is appropriate for the arson offending, taking in to account the totality principle – that is the need to ensure that the end sentence is proportionate to the overall offending. This would result in a total starting point of between nine years - nine months to 10 years - six months.

[30]      On top of this the Crown says the Court should add a term of three years imprisonment for participating in an organised criminal group and the offence of

15     Sentencing Act, s 8(b).

16     Sentencing Act, s 8(e).

17     Sentencing Act, s 8(g).

18     Sentencing Act, ss 84(2) and 84(3).

19     The Crown relies on R v P [2008] NZCA 476 at [31] – [32].

possession of a firearm. And to this the Crown submits the Court should add a further nine to 10 years imprisonment for using a firearm against an enforcement officer.

[31]      This would produce a notional starting point in the range of 21 to 23 years and six months’ imprisonment. However, the Crown accepts – as it clearly must – that this would be disproportionate to the overall offending and that a significant downward adjustment is required. Overall, the Crown says a total starting point in the range of 16-18 years imprisonment is appropriate.

Defence submissions

[32]      On your behalf Mr Muston says that the lead charge is the aggravated robbery of Mr T. He submits that all of the offending arises out of the aggravated robbery of Mr T. And he says that the other offending should be treated as an aggravated feature of that offending before an appropriate sentence based on the totality principle is arrived at.

[33]      In relation to the discharge of the firearm at Ms V’s vehicle, Mr Muston refers me to a recent judgment20 (Crown v Heke) in which the Court adopted a starting point of eight years for offending which Mr Muston says was worse than your offending. He says that other cases referred to by the Crown21 were also worse than yours. He submits that if you were to be sentenced for the offence of using a firearm against Constable V as a standalone charge it would have a starting point of six years imprisonment.

[34]      I will deal with counsel’s submissions in relation to each charge below. Overall, Mr Muston submits that a starting point of no more than 12-14 years is appropriate.

20     R v Heke [2018] NZHC 3168.

21     R v Henry [2021] NZHC 3379.

Starting point

Aggravated robbery/kidnapping

[35]      In my view the correct approach is to set a starting point for the aggravated robbery and the kidnapping of Mr T as the lead charges. Those are two separate charges, but they are obviously inextricably linked.

[36]      In a case called R v Mako the Court of Appeal set out guidelines for judges who are imposing sentences for aggravated robbery.22 The criminality in an aggravated robbery offence is to be assessed with reference to various different factors and the particular combination of features present in any particular case.23

[37]      I accept the Crown submission that there are number of significant aggravating features relevant to the offending in this case:

(a)There were multiple offenders. At least two, and probably three.

(b)The aggravated robbery (and the kidnapping) took place over a number of hours as Mr T was driven around Northland while funds were withdrawn from his bank account.

(c)Mr T was vulnerable, sleeping in his vehicle on the side of the road when you and your co-offenders approached him with firearms. He was then tied up and blindfolded and kept in the boot of his car. I agree with the Court’s comments in sentencing a co-offender that Mr T was in a situation of extreme vulnerability.

(d)There was the use of violence, threatened violence and the presence of weapons. You and your co-offenders used the weapons to force Mr T to get out of his vehicle, and to get him to transfer money to enable it to be withdrawn. One of the firearms was discharged when Mr T managed to escape.

22     R v Mako [2000] 2 NZLR 170.

23 At [52].

(e)The target premises,24 which in this case was Mr T’s car. As I have said he was asleep in his car which was parked in a rest area. He should have been able to feel secure. The vehicle was then used to carry out an aggravated robbery as you drove round Northland to the ATMs.

(f)You robbed Mr T of his car, his phone, his belongings and $2,400 cash. And as I have said, his vehicle was eventually destroyed.

[38]      The effect of all of this on Mr T is obviously a relevant factor in sentencing. The impact on Mr T must have been horrendous, and that is a factor which aggravates your offending. What you and your co-offenders did was gratuitous and cowardly.

[39]      You have heard Mr T’s mother this morning bravely speak to him in Court today. She refers to the torment he continues to go through, and three years on he continues to struggle every day.

[40]      When sentencing Mr B, the Court observed that on a standalone basis a starting point of seven years imprisonment for the aggravated robbery charge could have been warranted. Mr Muston submits though that this case is analogous to those involving aggravated robbery of taxi drivers which attract sentences of four years, but he acknowledges this would need to be increased to take into account aggravating features.

[41]      As for the kidnapping there is no guideline judgment for kidnapping which as the Courts have observed has an infinite variety of circumstances which underly the crime.25 As I have said though in this case, the two charges are inextricably linked. On its own the kidnapping charge would attract a significant sentence. In this case it is appropriate the two charges are considered together.

[42]      I have considered the Court’s sentencing of your co-offender, the lawyers’ submissions and the cases that they have referred me to.26 Taking these into account

24     R v Mako, above n 22, at [40].

25     R v Hall CA296/05, 28 February 2006 at [26], citing R v Wharton CA374/02, 27 March 2003 at [11].

26     In particular Rickus v R [2021] NZCA 435 where a starting point of 8 years’ imprisonment was imposed.

I consider that a starting point of eight years and six months is appropriate for the aggravated robbery and kidnapping offences.

[43]      I turn now to consider the use of the firearm against the law enforcement officer.

Starting point – shooting at a police officer

[44]      As I have said, the Crown submits that on a standalone basis a starting point in the range of nine to 10 years imprisonment is appropriate. Mr Muston says six years.27 They each refer to various cases that I will refer to in a bit more detail in my written notes.28

[45]      Essentially, the Crown submits that a case called Kovalevski (where a sentence of nine years was imposed) and Kite (where eight years was imposed) are most helpful but says that your offending was worse because there were two offenders, it was night- time, and the offending took place on a rural road.

Discussion

[46]      As I have said, Mr Muston submits that on a standalone basis a sentence of six years would be appropriate. Taking into account all of the other cases that I will refer to, I do not consider the offending would have had a starting point in the range of nine to 10 years as submitted by the Crown, but I do consider it would have been higher than the six years submitted by Mr Muston. This was very serious offending against

27 R v Kite [2018] NZHC 409; R v Henry; and R v Heke.

28 R v Kovalevski [2022] NZHC 2654: the Court adopted a starting point of nine years and addressed the following aggravating features: the firearm was discharged in the direction of the officer, the officer was vulnerable because he was alone, there was an element of premeditation, and although the Police vehicle was not hit or the officer harmed, there was significant psychological damage; R v Ma’anaiama [2020] NZHC 551: a starting point of 10 years where the offender fled from Police for an extended period in a residential neighbourhood area before firing a shotgun twice in the direction of the Police. He did not hit anyone (and was shot by Police); R v Heke: the offender was sentenced after a Police chase where the offender exited his vehicle with a military style semi- automatic weapon and fired at a Police car while it reversed, hitting it, he then fired at other Police cars that had arrived to assist. In total seven shots hit Police cars. A starting point of 12 years’ 6 months; and R v Kite: the High Court adopted the lead offence of using a firearm against an enforcement officer and adopted a starting point of eight years imprisonment. The Court of Appeal opined that “we have not been persuaded that the starting point [of 8 years] was too high”.

a Police officer in which she might easily have been injured, even killed. She was alone, and she was doing her duty for the benefit of our community.

[47]      I also note again the detailed and moving victim impact statement from Ms V. She does not wish this to be read in Court, but she does describe the awful effects that your offending has had on her.

[48]      In my view the Kite decision is most relevant. A standalone starting point of around eight years would be appropriate. If this is to be sentenced on a concurrent basis, and taking into account the totality principles I would uplift your sentence of eight and half years by four years.

[49]Turning to the arson.

Arson

[50]      I accept there should be an uplift also to take into account those two charges. The Crown submits that an uplift of 15 to 18 months’ imprisonment is appropriate, taking into account totality principles.

[51]      In my view, taking into account that principle I consider an uplift of 12 months is appropriate.

Organised criminal group

[52]      I also consider it is appropriate to uplift your sentence to take into account the charge of belonging to an organised criminal group. As I have noted, the purpose of the criminal group was to rob an Armourguard truck or a bank. The offending that actually occurred, whilst obviously very serious, was something of an opportunistic side hustle but the original plan was still underway. The circumstances giving rise to convictions for participating in an organised criminal group can vary significantly and direct comparisons between one case and other are difficult and not always helpful.

[53]      When I sentenced Mr Coe I adopted a starting point of two years and eight months’ for that charge and the charge of possessing a firearm.

[54]      When sentencing Mr B the Court applied an uplift of one year for the charge of participating in an organised criminal group, and one year for two charges of possessing a firearm and one of possessing ammunition.

[55]      I accept the Crown submission that you had more of a lead role in the organised criminal group then Mr B. However, taking into account the principles of totality and consistency, I uplift your sentence by one year to take into account the charge of participating in an organised criminal group.

[56]      I do not uplift your sentence in relation to the charge of possessing a firearm. I consider that your criminal culpability for the possession offence has been adequately captured in the course of sentencing for the aggravated robbery; the kidnaping of Mr T, and also using that firearm against Ms V. Of course, as with Mr Coe, if I was sentencing you on a standalone basis, or if those were the lead charges, the sentence would be higher.

Overall starting point

[57]In summary, the starting points are:

(a)Aggravated robbery and kidnapping – a term of imprisonment of eight years and six months.

(b)Uplifted by four years for using a firearm against a law enforcement officer.

(c)A further uplift of one year for the arson charges.

(d)An uplift of one year for participating in an organised criminal group.

[58]      This brings us to an overall starting point of 14 years and six months imprisonment before personal factors.

[59]      I must, however, stand back and assess the issue of totality overall.29 Doing that, I consider that some adjustment is appropriate for what was largely a course of conduct or a spate of offending, albeit very serious offending, over the course of a few hours. I therefore reduce the sentence by six months which brings me to an overall starting point of 14 years imprisonment before personal factors.

Personal circumstances

[60]      I now reach the second stage of the sentencing exercise which involves determining whether the starting point requires adjustment to reflect either aggravating or mitigating factors personal to you.

[61]      First, I address your criminal history. You have a number of previous convictions, but most significantly convictions for possessing firearms and aggravated robbery for which you were sentenced to five years and three months’ imprisonment in 2015. You were also convicted of theft in 2013.

[62]      I agree with the Crown that an uplift is appropriate, particularly given the very similar nature of your offending in 2015, and that the offending for which you are being sentenced today occurred while you were still on release conditions. I uplift your sentence by three months to take this into account.

[63]Turning to any mitigating factors.

Mitigating factors

[64]      You pleaded not guilty to all of these charges and so obviously there is no discount for guilty pleas. You maintain your innocence and as I have said, you have indicated that you will appeal your convictions and no doubt this sentence. As I have said that is well within your rights, but of course it precludes any discount for remorse or in my view your prospect of rehabilitation.

29     Polaapau v R [2020] NZCA 227 at [44].

[65]      I received a report from Dr Jared Gilbert advising the Court of various matters that it might take into account pursuant to s 27 of the Sentencing Act. It is not easy to know what to make of this report.

[66]      You have described your childhood as “happy”. You report living with extended whanau who you have described as “good people”. On the other hand, the report refers to violence taking place in your family home and to your description of that as quite normal. You say that you were in youth court at the age nine for burglary. You first tired cannabis at nine years of age and started drinking alcohol at 14. You acknowledge that you are addicted to alcohol. You say you attended at least eight primary and intermediate schools in Auckland and Northland but you’re not sure why. You left school at 15 with no qualifications but you are able to read and write. You are also able to converse in Te Reo Maori, and you have for a time worked for your iwi on trust land.

[67]      You did not confirm to the report writer that you’re a member of the Rebels Motorcycle Gang, but as I have noted I am satisfied from other evidence that you are. Others have indicated that you joined the gang in 2014. At which time you were 37 or 38 years of age.

[68]      I need to consider the extent to which these various factors may have contributed to the offending for which I am sentencing you today.30 I think it’s significant that your criminal record shows that apart from a few relatively minor and unrelated offences, your first serious offending was in 2013 when you were 37 years of age. That is when you received your first term of imprisonment.

[69]      However, on balance I accept that there is some causal connection between the instability of your care and housing, and the violence and other factors you experienced and witnessed as a child and the offending that brings you here today. As a result of all of that you began drinking alcohol very young which has become problematic. However, that causal connection is not as strong as it is for many of the offenders that come before the Court. As I have said, your serious offending did not really begin until you were 37 years of age. In these circumstances I am prepared to

30     Berkland v R [2022] NZSC 143 at [109].

allow a discount but only of five per cent to take into account the factors referred to in the s 27 report.

[70]      This taken together gives rise to an end sentence of 13 years and seven months’ imprisonment.

Minimum period of imprisonment (MPI)

[71]      The Crown seeks a minimum period of imprisonment (MPI).31 The Crown submits that this is required in order to protect the community, to deter you and others, and to denounce your conduct. The Crown refers to the seriousness of the offending and the fact that you advised the pre-sentence report writer that you continue to deny the offending for which you were convicted in 2015 but to which you pleaded guilty.

[72]      Having reflected on all of this I am also satisfied that the one third default minimum is insufficient, particularly taking into account the need to hold you accountable, to denounce your conduct, to deter you and others, and to protect the community. In this regard, I take into account that the offending occurred while you were still subject to parole conditions for similar offending; and that your offending seems to be escalating in seriousness. I consider that a MPI of 40 per cent should be applied to the lead offence of aggravated robbery. And that this would be appropriate to reflect the risk to the community that at the moment you and your offending presents.

Final sentence

[73]Mr Wharerau would you please stand:

(a)On the lead charge of aggravated robbery and kidnaping I impose a sentence of 13 years and seven months’ imprisonment.

(b)On the charge of using a firearm against a law enforcement officer I impose a sentence of eight years to be served concurrently.

31     Sentencing Act, s 86.

(c)On the charge of participating in an organised criminal group I impose a sentence of two years and six months’ imprisonment to be served concurrently.

(d)On the charge of possession of a firearm I impose a sentence of six months to be served concurrently.

(e)On each charge of arson I sentence you to two years imprisonment to be served concurrently.

[74]Thank you Mr Wharerau, you may stand down.

Robinson J