Whaanga v Police
[2019] NZHC 775
•10 April 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2019-485-11
[2019] NZHC 775
BETWEEN PETER IHAKA WHAANGA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 9 April 2019 Counsel:
M Anderson for Appellant D M Helm for Respondent
Judgment:
10 April 2019
JUDGMENT OF CHURCHMAN J
Introduction
[1] On 20 February 2019, Mr Whaanga was sentenced by Judge Thompson in the Hutt Valley District Court to two years and three months’ imprisonment on the following charges:1
(a)injuring with intent to injure;2 and
(b)burglary.3
[2] Mr Whaanga’s co-defendant, his son, received a sentence of six months’ community detention and 12 months intensive supervision.
1 New Zealand Police v Whaanga [2019] NZDC 3200.
2 Crimes Act 1961, s 189(2); maximum penalty five years’ imprisonment.
3 Section 231(1)(a); maximum penalty 10 years’ imprisonment.
WHAANGA v NEW ZEALAND POLICE [2019] NZHC 775 [10 April 2019]
[3]He appeals his sentence on the following grounds:
(a)the sentence is manifestly excessive in terms of comparable cases and lacks parity with the sentence of his co-defendant;
(b)the Judge placed insufficient weight on the appellant’s personal mitigating factors including his employment, family circumstances and his previous compliance with community-based sentences;
(c)the Judge was wrong not to consider any element of excessive self- defence in terms of the offending, particularly given that the appellant believed the victim to be holding a firearm;
(d)the Judge made an error of sentencing principle not to consider imposing an electronically monitored sentence;
(e)the Judge placed insufficient weight on the appellant having not previously completed a rehabilitative sentence such as supervision and his willingness to complete an anger management programme as recommended in the PAC report; and
(f)the Judge placed insufficient weight on the appellant’s willingness to engage in restorative justice and the informal apology he made directly to the victim.
[4] The Crown opposes the appeal, submitting that the starting point was within the range available to the sentencing Judge and that, in the circumstances, the end sentence was not manifestly excessive.
Factual background
[5] On 8 December 2018, Mr Whaanga and two associates went to the victim’s address to confront him about allegedly dealing in methamphetamine. Mr Whaanga had in his possession two metal tubes which were welded together, giving the impression that it was a firearm, which he carried for protection.
[6] After knocking for a number of minutes, Mr Whaanga repeatedly kicked the door, forcing his way into the victim’s home. He approached the victim who was standing above him on the stair holding an item Mr Whaanga believed to be a firearm. He grabbed the victim by the neck, throwing him to the ground and causing him to lose consciousness.
[7] Mr Whaanga then stood over the victim, pulling him from the ground and demanding to know where the “P” and the money was. Failing to get a response, he punched the victim once in the face with a closed fist. One of Mr Whaanga’s associates stomped on the victim’s neck while another took the victim’s television and toolbox to the vehicle.
[8] As a result of the assault, the victim suffered cuts, bruising and concussion and was admitted to hospital.
District Court decision
[9] In arriving at a starting point of “at least three years’ imprisonment”,4 the Judge took into account the following aggravating factors:5
(a)the “planned and deliberate” nature of the offending;
(b)the home invasion aspect of the offending;
(c)the presence of a weapon; and
(d)the use of significant violence.
[10] Applying a full guilty plea discount of 25 per cent, the end sentence arrived at was two years and three months’ imprisonment, bringing the sentence out of the jurisdiction for home detention. The Judge stated that, in any event, given
4 New Zealand Police v Whaanga, above n 1, at [8].
5 At [7].
Mr Whaanga’s offending, he would not have considered an electronically monitored sentence.6
Approach to appeal
[11] This appeal is brought under s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.7 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.8
Starting point
[12] Counsel for Mr Whaanga, Mr Anderson, took the Court carefully through cases he submitted were relevant and submitted that the sentence is manifestly excessive when compared to these other similar cases and when compared to the sentence received by the co-defendant. The cases which he refers to that are of relevance involve starting points of between two to three years’ imprisonment.9
[13] However, as the Court of Appeal stated in R v Taueki, where a guideline judgment exists, relatively limited assistance can be gained from references to various High Court judgments as each will turn on their own individual facts.10
[14] The applicable guideline judgment for injuring with intent to injure is Nuku v R, in which the Court of Appeal provided guidance on how the factors identified in R v Taueki could be adapted to apply to lesser charges:11
(a)Band one: where there are few aggravating features, the level of violence is relatively low and the sentencing judge considers the offender’s culpability to be at a level that might have been better
6 At [8]-[9].
7 Tutakangahau v R [2014] NZCA 279.
8 Ripia v R [2011] NZCA 101 at [15].
9 Pokaia v Police [2015] NZHC 1718; O’Docherty v Police [2014] NZHC 2312; Walker v Police
[2016] NZHC 597; Chambers v R [2015] NZHC 1590.
10 R v Taueki [2005] 3 NZLR 372 (CA) at [11]; recently emphasised in Kauvai v R [2017] NZCA 241 at [13].
11 Nuku v R [2012] NZCA 584 at [38].
reflected in a less serious charge, a sentence of less than imprisonment can be appropriate.
(b)Band two: a starting point of up to three years’ imprisonment will be appropriate where three or fewer of the aggravating factors listed at
[31] of Taueki are present.
(c)Band three: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band three, even if there are few other aggravating features.
[15] In terms of the aggravating factors identified in Taueki, it is my view that the following are present on the facts of this case:
(a)premeditation;
(b)attacking the head;
(c)multiple attackers;
(d)home invasion; and
(e)vigilante action.
[16] The sentedncing Judge also took into account the presence of a weapon but, as there is no suggestion of the weapon being used in the offending, it is my view that it is appropriate to exclude this as an aggravating factor.
[17] The presence of five aggravating factors would bring this offending within band three of Nuku where a starting point of at least two years’ imprisonment is available. Given that the analogous cases raised by Mr Anderson for the appellant provide a range of two to three years, the starting point of three years’ imprisonment adopted by the sentencing Judge cannot be said to have been unavailable. Particularly when an uplift for the burglary charge is added to the mix.
[18] There is, however, the issue of parity. Mr Anderson notes that Mr Whaanga’s son received a sentence of six months’ community detention. This sentence is obviously significantly less that that imposed on Mr Whaanga which Mr Anderson submits demonstrates a lack of parity. While the son was younger and has less of a criminal history, he contends that cannot fully explain the significant discrepancy in sentencing.
[19] The Crown accepts that the principle of consistency is a cornerstone of the sentencing process, however states that the Court should only intervene where there is an “unjustifiable and gross” disparity between co-offenders.12
[20] The Court of Appeal in R v Lawson stated that the question for the Court on appeal is:13
Whether a reasonably minded independent observer aware of all of the circumstances of the offence and of the offenders would think that something has gone wrong with the administration of justice.
[21] As noted in Mr Anderson’s submissions, in sentencing Mr Whaanga’s son, the Judge indicated a start point of between two and two and a half years and then applied a full discount for guilty plea, age and lack of significant criminal history. Mr Anderson submits that although the Judge identified Mr Whaanga as the lead offender, the violence inflicted was not significantly different. While Mr Whaanga threw the victim to the ground and punched him, his son stomped on his neck. It is submitted that a more appropriate start point for Mr Whaanga would therefore have been around two years. Mr Anderson notes that the High Court in Stone v R said:14
[W]hen considering parity between two co-offenders’ sentences, it is more important to consider parity of starting points rather than end sentences because as the Court of Appeal observed in R v Mako, “fixing the starting point is the mechanism for seeking consistency in sentencing”.
[22] Accordingly, Mr Anderson submits that, while the Judge could have ultimately imposed a more lenient sentence on the son by applying various discounts, the error
12 Sentencing Act 2002, s 8(e); R v Lawson [1982] 2 NZLR 219 at 22.
13 R v Lawson, above n 12, at 223.
14 Stone v R [2016] NZHC 1289 at [23] (citation omitted).
lies in the starting point. He submits that Mr Whaanga’s starting point should have been around the two-year mark which would have meant parity with his co-defendant.
[23] In response, the Crown submits that, while the aggravating factors are similar between the two offenders, Mr Whaanga instigated the offending and was correctly regarded by the Judge as having greater culpability. A higher starting point was, therefore, justified, and the difference of six months cannot be regarded as an “unjustifiable and gross” disparity.
[24] I accept the Crown’s submissions on this point. As the sentencing Judge noted, Mr Whaanga went to the victim’s address with the intention of confronting him, taking his son and one other with him for support. He was the lead offender and, in those circumstances, a reasonably minded observer would not think that a difference of six months in the starting point adopted meant that something had gone wrong in the administration of justice.
Mitigating factors
[25] For Mr Whaanga, Mr Anderson argues that he ought to have been given a discount for good character, having regard to his status as a valued employee, involvement within the community and family circumstances.
[26] The Crown submits that it was open to the Judge not to apply any discount for Mr Whaanga’s good character, having regard to his previous convictions for violence which were as recent as 2016.
[27] Mr Whaanga’s propensity for violence was a factor noted in his PAC report. He was convicted of assault on a police officer in 2016 and then again of assault on a police officer with a weapon and threatening to kill in 2011. For both of these instances of offending, he received sentences of community detention. This prior offending could be taken into account as an aggravating factor of the offender. In the circumstances of this case, it is my view that any weight for his employment, community involvement and family circumstances is cancelled out by these prior convictions for violent offending. He was not entitled to a discount for good character.
[28] Mr Anderson further submits that what he describes as “excessive self- defence” mitigates the offending, arguing that Mr Whaanga saw the victim holding something that he believed to be a firearm and, with that thought in mind, grabbed him and threw him to the ground, a reaction said to be reasonable in the circumstances.
[29] I do not accept that submission. Mr Whaanga went to the address to confront the victim, forced his way into the victim’s home, and himself had a weapon in his possession, although it was not used. Even if I were to accept that the initial grabbing and throwing the victim to the ground was in response to a belief that the victim had a weapon, this would not excuse Mr Whaanga’s actions in then raising the unconscious victim’s head off the ground and punching him. This was not a case of excessive self- defence. Indeed, it cannot properly be categorised as a case of self-defence at all. Mr Whaanga had no lawful business going anywhere near the victim.
[30] Mr Anderson further submits that the Judge placed insufficient weight on restorative justice. He notes that Mr Whaanga was willing to engage in the restorative justice process and sentencing was adjourned on occasions for the process to occur, but the victim did not engage. The victim has also not been available to provide any victim impact statement. Mr Whaanga, however, states that he has personally apologised to the victim outside of the Court process and accepts that he “handled it wrong”.
[31] Section 10 of the Sentencing Act 2002 provides that the Court must take into account restorative justice outcomes for sentencing purposes, including offers to make amends or apologise to the victim, if the Court views them as genuine. The Courts have recognised that, although discounts generally arise from the outcomes of a successful restorative justice process, a willingness to participate that did not proceed can indicate a positive attitude and remorse.15
[32] The Crown accepts that Mr Whaanga apologised to the victim and returned his property, however it is submitted that it was open to the Judge not to apply a discrete discount for genuine remorse, given the comments in the PAC report that he “did not express any significant remorse” and that “his remorse was of self-interest where he
15 Katoa v Police [2015] NZHC 1562 at [42]-[43].
can see the stress and grief to his family, but made little admission to the impact on the victim”.
[33] The comments in Mr Whaanga’s PAC report indicate that there was a basis for finding that his remorse could be reasonably viewed as not being genuine. He was also prepared to engage in the restorative justice process. There is an argument that he should have been given some credit for that willingness, albeit limited. However, such discount would have been minimal and the focus is on the end sentence. The Judge’s election not to give a separate discount for remorse did not result in an end sentence that was outside the range available.
Electronically monitored sentence
[34] Mr Anderson accepts that, for an electronically monitored sentence to be considered, the length of sentence must be two years or under. He also accepts that the decision to then impose an electronically monitored sentence is a judicial discretion, and that appellate courts would be reluctant to interfere with such a decision unless there is a demonstrated error of principle or where the sentence imposed is plainly wrong.
[35] Mr Anderson also noted that the PAC report included a recommendation that Mr Whaanga undergo supervision, which would have included a special condition that he attend an assessment for an anger management or violence prevention programme.
[36] Mr Anderson submits that, considering the purposes and principles of sentencing, an electronically monitored sentence together with supervision would have met the purposes of sentencing (in particular rehabilitation) and would have been an appropriate response in this case.
[37] However, given my finding that the end sentence imposed of two years and three months’ imprisonment was one that was available to the sentencing Judge, an electronically monitored sentence is not open for consideration.
Result
[38]For the reasons given above, the appeal is dismissed.
Churchman J
Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt for Appellant Crown Solicitor’s Office, Wellington for Respondent
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