The Queen v Winikerei - [2008] NZCA 407

IN THE COURT OF APPEAL OF NEW ZEALAND
CA348/2008
[2008] NZCA 407
THE QUEEN
v
QUANDO WINIKEREI
Hearing:22 September 2008

Court:O'Regan, Gendall and Fogarty JJ
Counsel:A M M Schulze for Appellant

M T Davies for Crown

Judgment:8 October 2008 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.
REASONS OF THE COURT
(Given by Fogarty J)
Introduction
[1] On 21 May 2008 the appellant was sentenced to two and a half years imprisonment for aggravated robbery, having been convicted on that charge following trial at the District Court at Rotorua. A co-offender, Mr O’Brien, was sentenced to nine months home detention with 200 hours of community work.
[2] The appellant appeals against his sentence on the grounds it is manifestly excessive and relies on two points:
1.That considered alone the appeal is manifestly excessive; and
2.That there is an unjustified disparity in the sentences received.

Factual background
[3]       In February 2007 the appellant and Mr O’Brien were on a property at Taupo. Four teenagers arrived in a car with the intention to buy cannabis. One of them got out of the vehicle and approached Mr O’Brien. Mr O’Brien told that young man that his father owed him some money and became aggressive towards him. The young man ran off. Three or four other persons then arrived at the property in another car, parking it immediately behind the first car. The persons in this car were associated with the Mongrel Mob. One appeared to have been wearing a patch. The appellant himself was wearing a leather jacket with red strips and displaying the word “Mighty”. There was a reference to the dogs (the Mob) in conversation.     Mr O’Brien, the appellant, and those other persons from the second car surrounded the first car. A variety of thefts then took place. The appellant was involved in these. He took $15 cash from a wallet. He demanded of one of the teenagers that they hand a cellphone to him and took the battery out of the phone to prevent them ringing the police. Together with Mr O’Brien he removed Sony sub-woofer speakers, an amplifier, and two boogie boards from the rear of the car.
Starting point
[4]       It was common ground at the sentencing in the District Court and before us that the appropriate starting point for this level of offending was between 18 months and three years, being akin to the “street robbery” example provided in
R v Mako [2000] 2 NZLR 170.
[5]       The sentencing remarks of Judge Weir were brief. He did not follow the steps of setting a starting point for the culpability of the offending and then adding on additional time for aggravating features. He went straight to two and a half years. Judge Weir’s sentence of two and a half years is justified by the aggravating features of the offending and the criminal history of the appellant who had just been released from a sentence for aggravated robbery. Mr Schulze had to agree…

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 The Queen v Winikerei

Details

AGLC: The Queen v Winikerei [2008] NZCA 407
Case: [2008] NZCA 407
Decision Date: 8 October 2008

CaseChat Overview and Summary

The appeal in The Queen v Winikerei was heard by O'Regan, Gendall, and Fogarty JJ in the Court of Appeal of New Zealand. The appellant, Quando Winikerei, was appealing against his two and a half year imprisonment sentence for aggravated robbery. Winikerei argued that the sentence was manifestly excessive and that there was an unjustified disparity between his sentence and that of his co-offender, Mr. O’Brien, who received a lighter sentence of nine months home detention with 200 hours of community work. The court was required to determine whether the appellant's sentence was excessive and whether there was an unjustifiable disparity between the sentences of the co-offenders.

The court found that the starting point for the level of offending was between 18 months and three years, which was similar to the "street robbery" example in R v Mako. The court noted that the judge had considered the aggravating features of the offending and the appellant's criminal history in passing sentence. The court held that the sentence was within the range available to the judge and could not be regarded as excessive. The court also found that the disparity in sentences between the co-offenders was justified, as the sentencing judge had taken into account the personal circumstances of each offender and the mitigating factors affecting them. The court held that a marked difference in the sentences imposed on co-offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute.

The appeal was dismissed, and the appellant's two and a half year imprisonment sentence for aggravated robbery was upheld.

Orders