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Waikato-Tuhega v R

Waikato-Tuhega v R

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Case Copied 4 October 2021 30 min read

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA112/2021
[2021] NZCA 503

BETWEEN	ZION WAIKATO-TUHEGA Appellant
AND	THE QUEEN Respondent

Hearing:	26 July 2021
Court:	Goddard, Thomas and Wylie JJ
Counsel:	H M S Cheeseman for Appellant J E Mildenhall for Respondent
Judgment:	4 October 2021 at 11.00 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
BThe sentence of six years and four months’ imprisonment is quashed and substituted with a sentence of four years and five months’ imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Thomas J)

Introduction

Zion Waikato-Tuhega was sentenced to six years and four months’ imprisonment in the Auckland District Court following his conviction on two charges of aggravated robbery, two charges of theft, one charge of unlawfully using or taking a vehicle, one charge of possession of an offensive weapon and one charge of burglary.[1]
[1]R v Waikato-Tuhega [2021] NZDC 2506.
Mr Waikato-Tuhega appeals his sentence on the grounds the Judge erred in granting inadequate discounts for his personal circumstances, namely his youth and cultural background, and as a result, the sentence was manifestly unjust. The Crown response is that, given the scale of the offending, the end sentence was, if anything, lenient.

Background

Factual background

Mr Waikato-Tuhega was involved in four separate sets of offending which occurred between November 2018 and May 2020.
On two occasions in November 2018, when Mr Waikato-Tuhega was 17 years old, he arranged via Facebook to meet people who had advertised iPhones for sale. When he met each of them, he asked to look at the phone and, upon it being handed to him, he ran off with it. On the second occasion, Mr Waikato-Tuhega was apprehended by the police and was found to be in possession of both phones and a claw hammer. This resulted in the two charges of theft and one of possession of an offensive weapon.
In December 2018, six people, including Mr Waikato-Tuhega (still aged 17 and wearing a white cap at the time), entered a liquor store in Auckland, with their faces partially obscured. One of them pointed a pistol at the manager. The manager was struck several times in the head and body with a tennis racquet causing minor bruising but was able to escape the store. The offenders took the cash till and a quantity of alcohol which they transferred into a previously stolen vehicle parked outside the store and then drove away. The police located a white cap containing Mr Waikato-Tuhega’s DNA outside the store near where the vehicle had been parked. CCTV footage showed Mr Waikato-Tuhega entering the store twice wearing the white cap and a third time without it but pulling his hood over his head to conceal his face from view. This resulted in the first aggravated robbery charge.
In the early hours of 8 May 2019, Mr Waikato-Tuhega (then 18 years old) and three others entered a mall in Auckland by smashing through two sets of…

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: [2021] NZCA 503
Decision Date: 4 October 2021 at 11.00 am

CaseChat Overview and Summary

Zion Waikato-Tuhega appeals his sentence, arguing that the Judge erred in granting inadequate discounts for his personal circumstances and youth, resulting in a manifestly unjust sentence. The Crown contends that the sentence, while not severe, was appropriate given the scale of the offending. Waikato-Tuhega was involved in four sets of offending between 2018 and 2020, including two aggravated robberies, theft, unlawful taking of a vehicle, possession of an offensive weapon, and burglary. At sentencing, the Judge considered the aggravating factors of premeditation, the value of items stolen, the use of weapons, and the presence of multiple offenders. The starting point was set at five years and six months, with additional uplifts for the defendant's Youth Court notations and offending on bail. The Judge granted a total discount of 35 per cent, consisting of 25 per cent for a guilty plea and 10 per cent for youth and electronically-monitored bail. The Court agrees that the starting point was appropriate but found that the discount for youth and personal factors was inadequate. The Judge did not consider the impact of systemic deprivation on the defendant's offending and failed to adequately account for the defendant's youth, neurological differences, and potential for rehabilitation. The appeal against sentence is allowed, and the sentence is quashed and substituted with a sentence of four years and five months' imprisonment.

Orders