The Queen v Wharepapa - [2009] NZCA 544

IN THE COURT OF APPEAL OF NEW ZEALAND
CA441/2009
[2009] NZCA 544
THE QUEEN
v
KINGI HONE WHAREPAPA
Hearing:5 November 2009

Court:William Young P, Chisholm and Priestley JJ
Counsel:S J Gill for Appellant

T Epati for Crown

Judgment:18 November 2009 at 3.30 pm

JUDGMENT OF THE COURT

A            An extension of time for appealing is granted.
B            Appeal dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Chisholm J)
[1]        After pleading guilty to one count of aggravated robbery and two counts of breaching release conditions, the appellant was sentenced to a total of six years and three months imprisonment by Judge Garland in the District Court at Palmerston North. He appeals against that sentence.
[2]        Initially three grounds of appeal were advanced:
(a)          The starting point was too high.
(b)An uplift to reflect aggravating features personal to the appellant was excessive.
(c)The discount for mitigating features was inadequate.

At the hearing of the appeal the first ground of appeal was abandoned.
[3]        Although the appeal is out of time, no opposition to an extension of time was advanced by the Crown. The time for appealing is extended accordingly.
Facts
[4]        At about 11pm on 4 August 2008 the appellant, aged 21 years, went with one of his co-offenders, Cedric Tanoa, aged 15 years, to a flat occupied by the victims. When the door was opened by the first victim the appellant demanded to speak to the second victim about a drug debt. Then both offenders pushed past the first victim and went to the bedroom of the second victim.
[5]        In the bedroom the offenders confronted the second victim and demanded money from him. Mr Tanoa turned over the victim’s bed and went through his drawers, demanding money and drugs. The appellant threatened to shoot the victim’s kneecaps if he did not give them money and he told the victim that he was in the Nomads gang. Then the appellant took the victim’s wallet and demanded the PIN number for his Eftpos card, which was supplied.
[6]        The first victim then offered to obtain money from an ATM machine and the appellant went with that victim to an ATM machine where $100 was withdrawn and handed to the appellant. While they were walking back to the flat the appellant talked about doing this job to get his Nomad’s patch.
[7]        In the meantime Mr Tanoa had obtained a large knife from the kitchen in the flat and held it at the second victim’s throat, telling him that this is how he is going to get his patch and not to “fuck with the Nomads”. Later he held the knife at the throat of a third occupant. At one point two other co-offenders who had been waiting in the street below came into the flat and began searching the bedrooms, drawers and cupboards in the flat, before leaving again with a CD player, a cellphone and a beanie.
[8]        After returning to the flat with the first victim, the appellant took…

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.

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Details

Case: [2009] NZCA 544
Decision Date: 18 November 2009

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal against sentence brought by Kingi Hone Wharepapa, who had pleaded guilty to aggravated robbery and breaching release conditions. The appellant appealed against a sentence of six years and three months imprisonment, imposed by Judge Garland in the District Court at Palmerston North. The appeal was out of time, but no opposition to an extension of time was raised by the Crown. The appellant argued that the starting point was too high, the uplift for aggravating features was excessive, and the discount for mitigating features was inadequate. The first ground of appeal was abandoned at the hearing. The Court found that the starting point was appropriate, the uplift for aggravating features was within the available range, and the discount for mitigating factors was adequate. The Court concluded that the sentence of six years and three months was not manifestly excessive and dismissed the appeal. The appeal is dismissed, and the time for appealing is extended accordingly.

Orders