[1] Anthony Wheble, you have pleaded guilty to the attempted murder of Diego Marques.1 Because you have previously been convicted of serious violent offending, this is a second-strike offence. A warning to that effect was given to you at the time you pleaded guilty; and it means you must serve the full term of the sentence I impose on you without parole.2
Plea
[2] Your plea has concerned me. While you did not deny attacking Mr Marques, your initial not guilty plea was based on your assertion that you intended only to teach him a lesson, not to kill him. It was apparent that your request to change your plea to one of guilty was motivated by an irrational concern about your safety if you were required to return to the Otago Correctional Facility during your trial in Dunedin. The Court made it clear – on two occasions – that it would not transfer your trial to Christchurch. Mr More took instructions from you and said that you were prepared to acknowledge that you were guilty of attempted murder and to plead guilty. I accepted that plea on the basis that it was consistent with your claim that you attacked Mr Marques because he had threatened you and you were fearful.
[3] Since then, however, you have reverted to claiming to that you did not intend to kill Mr Marques. Mr More has again taken instructions from you and has assured me this morning that you do not deny that you are guilty of attempted murder and that you understand that you must be sentenced on that basis.
The facts
[4] The facts which, by your guilty plea, you accept as true, are these. Mr Marques and you were serving sentences of imprisonment at the Otago Corrections Facility in Milburn. At the time of the offending, you both resided in Wing H, Unit 33 at the facility. Unit 33 is a two-storey block with cells on both levels and a day room on the
1 Crimes Act 1961, s 173; the maximum penalty is 14 years’ imprisonment.
2 Sentencing Act 2002, s 86C(4).
ground floor. The day room is an open area with tables and chairs where prisoners are able to socialise.
[5] On the morning of 28 October 2018, Mr Marques and you were in the day room. Other inmates were present, playing cards and conversing amongst themselves.
[6] You had armed yourself and you were stalking Mr Marques around the day room. The weapon you had selected was a shank: a modified plastic knife approximately 10 centimetres long with a metal razor-blade fused to one end.
[7] At a…
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 Wheble
Sign in free to access the full text
Details
AGLC
R v Wheble [2019] NZHC 1301
Case
[2019] NZHC 1301
Decision Date
CaseChat Overview and Summary
Anthony Wheble has been convicted of attempted murder in the High Court of New Zealand at Dunedin. The defendant had pleaded guilty to the charge after initially pleading not guilty on the basis that he intended only to teach the victim a lesson and not to kill him. The defendant’s attack on the victim, Diego Marques, involved the use of a weapon, was premeditated, and was extreme in nature. The defendant’s attack caused serious injury to the victim. The defendant’s history of offending and the premeditation of the attack led the court to find that the case fell within band 3 of the guideline for sentencing, which involves a range of imprisonment from nine to 14 years. The court found that the case fell towards the lower end of band 3 and set a starting point of 10 years imprisonment. The court then considered personal circumstances and found that a 10 per cent discount was justified. The defendant’s guilty plea resulted in a 12-month discount. The court found that the defendant would have to serve his entire sentence without parole and applied the three strikes law, which meant that no further discount was given. The court then considered the principle of totality and applied a further 12-month discount. The court sentenced the defendant to seven years imprisonment to be served cumulatively with his existing sentence of four years and six months. The court also imposed a minimum period of imprisonment of two years and four months.