Thomas v The King - [2023] NZHC 444

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-461

[2023] NZHC 444

BETWEEN
WHIDDON THOMAS

Appellant

AND

THE KING

Respondent

Hearing: 14 February 2023

Counsel:

K Hogan for Appellant B So for Respondent (Via VMR)

(Appellant also present via VMR)

Judgment:

14 March 2023

JUDGMENT OF HINTON J

This judgment was delivered by me on 14 March 2023 at 10.00 am.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Meredith Connell, Auckland

THOMAS v R [2023] NZHC 444 [14 March 2023]

[1] On 14 April 2022, Mr Whiddon Thomas pleaded guilty to two charges of aggravated robbery, a week before the scheduled trial.1 He was sentenced to four years’ imprisonment by Judge Thomas in the Auckland District Court on 28 October 2022.2

[2] He now appeals his sentence on the grounds it is manifestly excessive and did not follow indicative statements made by Judge Mabey QC when he was arraigned on 14 April 2022.

The offending

[3] On 20 November 2020, the appellant and a co-offender entered the home of the complainants through an unlocked front door. The appellant was armed with a full-length double barrel shotgun with a wooden stock. He immediately approached the complainants, pointed the firearm at them and instructed them to sit down.

[4] While the appellant was pointing the shotgun at the complainants, his co- offender demanded cash. The complainants handed over a total of approximately
$750.

[5] The co-offender then demanded drugs, but the complainants said they did not have any. The co-offender began rummaging through the house and took several valuable items, including a tattooing kit, jewellery and a watch.

[6] The co-offender told the complainants that they would end up hurt if the Police were told about the incident and if they wanted their stuff back, they would need to pay for it. Following that, the appellant and the co-offender left.

The arraignment hearing before Judge Mabey

[7] The appellant pleaded guilty at an arraignment hearing on 14 April 2022 before Judge Mabey. He did not receive any sentence indication beforehand.

1 Crimes Act 1961, s 235(b), maximum penalty: 14 years’ imprisonment.
2 R v Thomas [2022] NZDC 23986.

[8] Judge Mabey entered the convictions. He then dealt with the appellant’s application for bail pending sentence. The appellant was on EM bail at the time. The Crown took a neutral position on the bail application.

[9] In accordance with s 13 of the Bail Act 2000, the Judge considered the likelihood of the appellant receiving a sentence of home detention. He noted that the appellant’s responsibility for his mother was not relevant, but the crucial factor was that the appellant appeared to have an addiction and was working on rehabilitation:

But looking at the facts and thinking where I, if I was sentencing, might land on a start point you may well have enough to get to two years. The crucial factor is this, there appears to be an addiction and it looks like Mr…

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 Thomas v The King

Details

AGLC: Thomas v The King [2023] NZHC 444
Case: [2023] NZHC 444
Decision Date: 14 March 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the appellant, Mr Whiddon Thomas, appealed against his sentence for two charges of aggravated robbery. Mr Thomas had pleaded guilty and was sentenced to four years’ imprisonment by the Auckland District Court. The appeal was heard on 14 February 2023, with the judgment delivered on 14 March 2023. The primary issue before the Court was whether the sentence imposed was manifestly excessive. The appellant argued that the starting point should have been lower and that greater weight should have been given to mitigating factors, including his guilty plea, time spent on electronic monitoring bail, and his rehabilitative efforts. The Crown opposed the appeal, asserting that the starting point was within the available range and that adequate weight was given to mitigating factors. The Court considered the starting point of six years’ imprisonment to be too high. The Court found that the case was less serious than examples provided in R v Mako and that a starting point of five years’ imprisonment was appropriate. Additionally, the Court found that the appellant should have received a higher discount for personal mitigating circumstances, resulting in a total discount of 45 per cent. The sentence imposed by the District Court was manifestly excessive, and the appeal was allowed. The Court substituted the sentence with three years and three months’ imprisonment.

Orders