Waihape v R
[2012] NZCA 425
•19 September 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA105/2012 [2012] NZCA 425 |
| BETWEEN SAUL WAIHAPE |
| AND THE QUEEN |
| CA131/2012 |
| AND BETWEEN VINCENT JAMES MONIKA |
| AND THE QUEEN |
| Hearing: 13 September 2012 |
| Court: Harrison, French and Simon France JJ |
| Counsel: N C H Hewat for Appellant Waihape |
| 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 s 98A charge and the firearms charges collectively warranted a starting point of six years’ imprisonment for both men.
He then discounted that by two years (one third) on account of the assistance given to the authorities.
In the case of Mr Waihape, the Judge did not consider any further adjustments were required resulting in an end sentence for Mr Waihape of four years’ imprisonment on the s 98A charge and concurrent one year prison terms on each of the firearms charges.
As regards Mr Monika, the Judge found that he was entitled to a further discount of three months because of his guilty plea to the firearms charges. That reduced his sentence to three years, nine months’ imprisonment. Mr Monika was however also appearing for sentence on an unrelated drugs charge of offering to supply methamphetamine. He had pleaded guilty to that charge at the earliest possible opportunity. After taking into account the early guilty plea and making a further adjustment on account of totality, the Judge sentenced Mr Monika to a term of imprisonment of two years for the drug offending. This was expressed to be cumulative on the other sentence, making a total effective end sentence of five years and nine months.
Grounds of appeal
As already mentioned, the only ground of appeal relates to the discount given for cooperating with the police.
In R v Hadfield,[4] this Court allowed a combined discount of 60 per cent for a guilty plea and considerable assistance to authorities.
[4] R v Hadfield CA337/06, 14 December 2006.
Counsel accepted that in this case the absence of an early guilty plea meant that a 60 per cent discount would not be warranted. However, in their submission, MacKenzie J’s figure of 30 per cent was inadequate. They contended that it failed to give sufficient recognition to the value of the assistance that was provided and to the fact that by giving evidence the two men had put their personal safety in danger. Mr Hewat suggested it was probably the first time in Mongrel Mob history that a member has broken their code of silence and testified against fellow Mob members. A further aspect was that because Mr Waihape and Mr Monika were at risk in prison from their fellow inmates and/or required to serve their sentence in relative isolation, the sentence was more onerous than it would otherwise have been.
In counsel’s submission, the appropriate discount having regard to all these factors was in the vicinity of 45 per cent.
Discussion
In his sentencing notes, MacKenzie J referred to the decision of this Court in Hessell v R.[5]In Hessell, this Court had held that a guilty plea made at the earliest possible opportunity warranted a one third discount.[6] The Court also confirmed the approach of giving a combined “guilty plea/assistance to authorities” discount, and noted that a 60 per cent discount will only be warranted where the guilty plea is at the first reasonable opportunity and the assistance to authorities is substantial.[7]
[5] Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298.
[6]At [15]. This ruling was overturned on appeal to the Supreme Court: Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607. The Supreme Court held that no more than a 25 per cent discount should be granted in respect of a guilty plea.
[7] At [23].
The Court in Hessell did not say what the discount should be for assistance in the absence of a guilty plea[8] but MacKenzie J said he took from the comments that a discount for assistance standing alone without a guilty plea would not exceed 30 per cent.
[8]Counsel in this case were unable to find any authority which has expressly addressed the issue of assistance without a guilty plea.
While we understand the logic of MacKenzie J’s interpretation, we are not persuaded that there is necessarily such a hard and fast rule. Nor do we consider it desirable to have such a rule. We say that because of the need to preserve flexibility and discretion in sentencing as emphasised by the Supreme Court in Hessell.
In our view, it would have been possible in this case to have given Mr Monika and Mr Waihape more than a 30 per cent discount.
That said, we are not however troubled by a 30 per cent discount which we consider was open to MacKenzie J in the exercise of his discretion. As the trial Judge, he was well placed to assess the value of the assistance and the risk of harm which he expressly acknowledged was significant. His sentencing notes show that he was clearly cognisant of all the relevant factors which were identified and carefully weighed.
Further and importantly, we note that the end sentences were clearly within range and that if anything MacKenzie J was generous to Mr Waihape and Mr Monika in not treating their reasonably significant previous convictions as an aggravating factor.
Result
Appellate intervention is not warranted and the appeals are accordingly dismissed.
Solicitors:
Rishworth Wall & Mathieson, Gisborne for Appellant Monika
Crown Law Office, Wellington for Respondent
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