R v Whata - [2008] NZCA 204

IN THE COURT OF APPEAL OF NEW ZEALAND
CA169/2008
[2008] NZCA 204
THE QUEEN
v
MALCOLM WHATA
Hearing:24 June 2008

Court:Baragwanath, Rodney Hansen and Harrison JJ
Counsel:R Vigor-Brown for Appellant

K J Glubb for Crown

Judgment:3 July 2008 at 3pm

JUDGMENT OF THE COURT

A        THE APPEAL IS ALLOWED.
B        The sentence of two years and three months imprisonment is quashed.
C        A sentence of 18 months’ imprisonment is substituted.

____________________________________________________________________
REASONS OF THE COURT
(Given by Rodney Hansen J)
[1]       Mr Whata pleaded guilty in the District Court at Rotorua to one count of assault with intent to rob under s 236(1)(c) of the Crimes Act 1961 and one count of common assault under s 9 of the Summary Offences Act 1981. He was sentenced by Judge J J Weir to a term of two years and three months’ imprisonment. He appeals against the sentence.
The offending
[2]       Mr Whata and his co-offender, Justin McFarland, approached the complainant, Maxwell Sutherland, at 6am on 14 September 2007. Mr Sutherland is 58 years of age and was walking his dog in suburban Rotorua. Mr Whata and Mr McFarland had been drinking alcohol since 4pm the previous day. Mr Sutherland saw them and, from their behaviour, suspected they were drunk. He crossed the road to avoid them.
[3]       The offenders followed Mr Sutherland. They commented on his dog and demanded he return to where they were. He demurred and hurried on. They then crossed the road and threatened that if he did not give them his dog, they would “kick your head in”. Mr McFarland then approached Mr Sutherland, kicked his dog in the head and punched Mr Sutherland. He was joined by Mr Whata. Together they punched him in the head, shoulders and arms about twelve times.
[4]       Mr Sutherland eventually escaped and ran away. When he realised he was not being followed, he back-tracked to see where the offenders were going. They caught sight of him and chased after him. He sought refuge at a Shell service station and asked the forecourt attendant to ring the police. The offenders arrived and renewed their attack, taking turns to punch him in the head for about one minute. The assault came to an end only after a customer at the service station intervened.
[5]       Soon afterwards Mr Whata confronted a second man who was walking home wearing headphones. He was unable to hear what Mr Whata said before he was punched in the shoulder. He managed to deflect other blows and Mr Whata soon ran off.
[6]       Mr Sutherland’s injuries fortunately were fairly minor. He suffered bruising to his head, forearm and shoulder and a bleeding nose. He was, however, traumatised by the incident. As a former policeman, he said he had been in frightening situations but had seldom, if ever, experienced the fear he felt on this occasion. There is no indication that the second victim was injured.
The appellant
[7]       Mr Whata is 30 years old. He has had mental…

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 Whata

Details

AGLC: R v Whata [2008] NZCA 204
Case: [2008] NZCA 204
Decision Date: 3 July 2008

CaseChat Overview and Summary

Malcolm Whata appeals against his sentence of two years and three months' imprisonment, imposed by Judge J J Weir in the Rotorua District Court for assault with intent to rob and common assault. The appeal was heard by Baragwanath, Rodney Hansen, and Harrison JJ in the Court of Appeal of New Zealand. The appellant's counsel, Mr Vigor-Brown, argues that the sentence was manifestly excessive and that the sentencing judge failed to take sufficient account of the mitigating factors, including the appellant's mental health and lack of prior convictions. The Crown, represented by Ms Glubb, contends that the starting point was within the appropriate range and that the sentence was proportionate to the seriousness of the offending.

The Court of Appeal considers whether the District Court judge appropriately balanced the aggravating and mitigating factors in arriving at the sentence. The Court observes that while the starting point was within the range mandated by the Court's previous decisions, the appellant's mental health and its impact on his offending warranted greater discount than the sentencing judge allowed. The Court finds that the appellant's mental illness and its consequences, along with his otherwise clean criminal record, should have led to a lesser sentence. By comparing the present case with similar cases in which more lenient sentences were imposed, the Court concludes that a sentence of 18 months' imprisonment is more appropriate.

The Court of Appeal allows the appeal, quashes the original sentence, and substitutes a sentence of 18 months' imprisonment. Home detention is not considered an option as the appellant's mother refused to consent to it under s 80A(2) of the Sentencing Act.

Orders