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Whaanga v The King

Whaanga v The King

Case [2024] NZCA 29 13 February 2024

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA586/2023
[2024] NZCA 29

BETWEEN	HARRY HIRIWI WHAANGA Appellant
AND	THE KING Respondent

Hearing:	12 February 2024
Court:	Collins, Woolford and Mander JJ
Counsel:	T Epati for Appellant M J M Mitchell for Respondent
Judgment:	13 February 2024 at 10.30 am
Reasons:	22 February 2024 at 10.30 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
BThe sentence of 26 months’ imprisonment is quashed and substituted with a sentence of 22 months’ imprisonment.
CWe direct that a pre-sentence report as to the suitability of the proposed residence for home detention is prepared.
DLeave is granted to Mr Whaanga to apply to this Court under s 80K of the Sentencing Act 2002 to substitute the sentence of 22 months’ imprisonment with one of six months’ home detention.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

On 13 February 2024, we allowed Mr Whaanga’s appeal against a sentence of 26 months’ imprisonment imposed following his convictions for possession of cannabis and synthetic cannabis for the purposes of sale.[1] We put in place a sentence of 22 months’ imprisonment and granted Mr Whaanga leave to apply to have that sentence substituted for one of six months’ home detention provided a proposed address was deemed suitable for home detention by the Department of Corrections. We now explain our reasons for allowing the appeal.

The offending

[1]Whaanga v R [2024] NZCA 14 [Results judgment].

On 26 January 2022, police executed a search warrant at Mr Whaanga’s family address at Opoutama which is near Mahia. During the search, the police located 411.7 grams of cannabis and 339.7 grams of synthetic cannabis. The police also found $31,760 in cash, the majority of which was inside a safe. The safe could only be opened by using the password “shop”.
On 15 September 2022, police executed a second search warrant at Mr Whaanga’s address. At that time Mr Whaanga was on bail in relation to two charges that had been laid following the execution of the first search warrant. During the second search the police located 249.1 grams of cannabis and 131.7 grams of synthetic cannabis. The police also found $13,848.30 in cash as well as Ziploc bags and scales.
Approximately 3,000 messages on Mr Whaanga’s phone were examined by the police. None of those messages related to drug dealing. Nor did the police locate a “tick” book, an item commonly associated with sales of cannabis and synthetic cannabis.

Mr Whaanga

At the time of the offending Mr Whaanga was 33 years old. He and his wife met when they were teenagers. They have four children whose ages range from 4 to 15 years.
In her affidavit filed in support of the appeal, Ms Whaanga explains that her husband is a dedicated parent who has played an active role in bringing up their children. In early 2023, Mr Whaanga became the primary caregiver for the children so as to enable…

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 Whaanga v The King

Details

AGLC: Whaanga v The King [2024] NZCA 29
Case: [2024] NZCA 29
Decision Date: 13 February 2024 at 10.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from Harry Hiriwi Whaanga, who was convicted of possession of cannabis and synthetic cannabis for the purposes of sale. The appeal was against the 26-month imprisonment sentence imposed by the District Court. Whaanga was represented by counsel, T Epati, while M J M Mitchell represented the respondent, the King. The appeal was heard on 12 February 2024, with reasons for the judgment provided on 22 February 2024.

The legal issues the Court was required to decide were whether there was insufficient recognition given to Mr Whaanga's personal use of and addiction to cannabis and synthetic cannabis, if the District Court Judge erred by not providing any discount to reflect the impact of incarceration on Mr Whaanga's children, and if a further discount should have been granted to reflect the forfeiture of the money found at Mr Whaanga's property.

The Court found that a discount had been given for Mr Whaanga's addiction and troubled upbringing, but an additional discount should have been made for the impact of incarceration on his family. The Court also determined that no further discount was required for the forfeiture of the money found at Mr Whaanga's property, as the forfeiture order was supplementary to the sentence imposed. The Court of Appeal allowed the appeal against sentence, substituting the 26-month imprisonment sentence with a 22-month imprisonment sentence, and granted leave to Mr Whaanga to apply to the Court for a substitution of the sentence with one of six months’ home detention, provided the proposed address was deemed suitable for home detention by the Department of Corrections.

The final orders of the Court were: (a) The appeal against sentence is allowed; (b) The sentence of 26 months’ imprisonment is quashed and substituted with a sentence of 22 months’ imprisonment; (c) A pre-sentence report as to the suitability of the proposed residence for home detention is to be prepared; and (d) Leave is granted to Mr Whaanga to apply to this Court under s 80K of the Sentencing Act 2002 to substitute the sentence of 22 months’ imprisonment with one of six months’ home detention.

Orders