Waihape v R - [2012] NZCA 425

IN THE COURT OF APPEAL OF NEW ZEALAND

CA105/2012
[2012] NZCA 425

BETWEEN SAUL WAIHAPE
Appellant

AND THE QUEEN
Respondent

CA131/2012

AND BETWEEN VINCENT JAMES MONIKA
Appellant

AND THE QUEEN
Respondent

Hearing: 13 September 2012

Court: Harrison, French and Simon France JJ

Counsel: N C H Hewat for Appellant Waihape
J C Mathieson for Appellant Monika
F E Cleary for Respondent

Judgment: 19 September 2012 at 11.30 am

JUDGMENT OF THE COURT

The appeals are dismissed.

REASONS OF THE COURT

(Given by French J)

Introduction

Mr Waihape and Mr Monika are both members of the Mongrel Mob. They were each sentenced in the High Court to a term of imprisonment for their part in a gun fight between rival gang factions.[1]
[1] R v Waihape [2012] NZHC 198.
They now appeal their respective sentences.
The sole issue on both appeals is whether the sentencing Judge gave a sufficient discount for the assistance that Messrs Waihape and Monika provided to the authorities.[2]

Factual background

[2]Mr Waihape’s notice of appeal contained a second ground relating to the Judge’s starting point but this was not pursued at the hearing.

The gun fight arose out of an internal power struggle in the Wairoa chapter of the Mongrel Mob.
Mr Waihape and Mr Monika were part of a group inside the gang headquarters when members of a rival faction arrived carrying firearms and wearing balaclavas. The group inside had anticipated trouble and were collectively armed with a .22 calibre pistol, a 20 gauge pump action shotgun and a 12 gauge double barrel sawn-off shotgun.
There was an altercation and those inside fired the first shot. The outside group returned fire.
In total at least 25 shots were fired and two gang members were injured, one seriously.
Both Mr Monika and Mr Waihape were actively involved in handling the firearms and both fired shots.
They were each charged with being a participant in an organised criminal group under s 98A of the Crimes Act 1961, three counts of unlawful possession of a firearm and one count of being a party to wounding with intent to cause grievous bodily harm.
Mr Monika pleaded guilty to the firearms charges approximately two months before trial, but defended the other charges.
Mr Waihape pleaded not guilty to all charges.
At trial, the jury acquitted both men of wounding with intent but found them guilty of being a participant in an organised criminal group and also found Mr Waihape guilty of the firearms charges.
Following their trial, Mr Waihape and Mr Monika gave evidence for the Crown against members of the rival faction who were tried separately. Without the cooperation of Messrs Waihape and Monika, the charges against those in the other group could not have been brought. The trial of the rival group resulted in convictions.[3]

The sentencing in the High Court

[3]The convictions have since been overturned on appeal and a retrial ordered. However that is not relevant for present purposes.

The sentencing Judge, MacKenzie J, considered the…

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 Waihape v R

Details

AGLC: Waihape v R [2012] NZCA 425
Case: [2012] NZCA 425
Decision Date: 19 September 2012

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appeals of Saul Waihape and Vincent James Monika against their sentences were dismissed. Both appellants were members of the Mongrel Mob and were sentenced for their involvement in a gunfight between rival gang factions. The appeals contested the discount given for their cooperation with the authorities. The sentencing judge had applied a one-third discount for their assistance, but the appellants argued that a greater discount was warranted.

The legal issue was whether the sentencing judge had appropriately discounted the sentences for the assistance provided to the authorities. The Court noted that while the absence of an early guilty plea meant a 60 per cent discount was not applicable, the appellants submitted that a 30 per cent discount was inadequate. They argued that the discount should have been around 45 per cent, considering the value of their assistance and the risks they undertook by testifying against fellow gang members.

The Court held that while it was possible to have given a greater discount, the judge's decision to apply a 30 per cent discount was within the range of acceptable outcomes. The sentencing judge had been well placed to assess the value of the assistance and the risk of harm, and had carefully weighed all relevant factors. The Court found that the sentences were within the appropriate range, and that the judge had not treated the appellants' previous convictions as an aggravating factor.

The appeals were dismissed, and no further appellate intervention was warranted.

Orders