Whaanga v Police - [2019] NZHC 775

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…

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: [2019] NZHC 775
Decision Date: 10 April 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Peter Ihaka Whaanga appealed against his sentence of two years and three months' imprisonment imposed by the Hutt Valley District Court for injuring with intent and burglary. The appeal was brought under section 250 of the Criminal Procedure Act 2011, and the grounds for appeal included that the sentence was manifestly excessive, that the sentencing judge placed insufficient weight on personal mitigating factors, and that the judge did not consider imposing an electronically monitored sentence. The New Zealand Police opposed the appeal, arguing that the starting point was within the range available to the sentencing judge and that the end sentence was not manifestly excessive.

The High Court considered the starting point of the sentence and the aggravating factors present in the case, including the planned and deliberate nature of the offending, the home invasion aspect, the presence of a weapon, and the use of significant violence. The court found that the starting point of three years' imprisonment was within the available range and that the difference in sentencing between Whaanga and his co-defendant could be justified by the different levels of culpability and the fact that Whaanga instigated the offending. The court also found that Whaanga was not entitled to a discount for good character due to his previous convictions for violence and that his actions could not be categorised as excessive self-defence. While Whaanga had shown willingness to engage in restorative justice, the court found that the judge's decision not to give a separate discount for remorse did not result in an end sentence that was outside the range available.

For these reasons, the appeal was dismissed, and the sentence imposed by the Hutt Valley District Court was upheld.

Orders