Whare v R - [2014] NZCA 354

IN THE COURT OF APPEAL OF NEW ZEALAND

CA759/2013
[2014] NZCA 354

BETWEEN	RORY HENARE WHARE Appellant
AND	THE QUEEN Respondent

Hearing:	21 July 2014
Court:	Stevens, Lang and Clifford JJ
Counsel:	C D Bean for Appellant P D Marshall for Respondent
Judgment:	30 July 2014 at 3.00 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

The appellant, Mr Whare, pleaded guilty to four representative counts of offering to supply methamphetamine, four representative counts of supplying methamphetamine, one representative count of offering to sell cannabis, one count of possessing methamphetamine for the purposes of supply and one count of possessing a precursor substance. He was discharged on two further charges in relation to possession of a different precursor substance and possession of an airgun.[1] Mr Whare was sentenced to eight years’ imprisonment by Judge Macdonald in the District Court at Hamilton.[2] He appeals this sentence.
[1]Pursuant to s 347 of the Crimes Act 1961. This was expressly on the basis that the presence of the air pistol would “remain in the summary of facts utilised for the purpose of sentence”.
[2]R v Whare DC Hamilton CRI-2012-019-6891, 2 October 2013.
Mr Whare challenges his sentence in two respects. First, an uplift for the air pistol was wrong in principle. Second, the Judge gave an inadequate discount for remorse and his prospects of rehabilitation.

Background

On 1 August 2012, Mr Whare and a companion were stopped in Mr Whare’s car. A subsequent search revealed methamphetamine and associated items involved in its manufacture and dealing. Mr Whare’s mobile phone was then analysed, revealing 292 offers or sales of methamphetamine between 1 July 2012 and 1 August 2012. Where a quantity was identifiable in 163 of these communications, this totalled 201.8 grams, with an ascribed value of $84,000 specified in respect of 122.3 grams.
The police also found a .177 calibre air pistol under the driver’s seat; a tyre iron placed between the driver’s seat and middle console; a broom handle modified into a weapon in the boot; and a Stanley knife inside a bag. Mr Whare admitted he owned the air pistol, and the vehicle he was driving. He then pleaded guilty to various charges laid against him.

Sentencing

Judge Macdonald assessed the methamphetamine offending as falling within the top of band 2 or bottom of band 3 in R v Fatu.[3] He accepted the Crown’s proposed starting point of eight years’ imprisonment.[4] In considering an uplift in respect of the pistol, the Judge then noted the charge in relation to it had been removed but correctly observed the presence of the pistol was able to be treated as an aggravating factor. He therefore applied an uplift of three months’ imprisonment, half the uplift the Crown was seeking. A further uplift of nine months was applied on account of the additional offending and three months for prior…

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 Whare v R

Details

AGLC: Whare v R [2014] NZCA 354
Case: [2014] NZCA 354
Decision Date: 30 July 2014 at 3.00 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Rory Henare Whare, appealed against his sentence imposed by Judge Macdonald in the District Court at Hamilton. Mr Whare had pleaded guilty to various drug-related charges, including offering and supplying methamphetamine, and possessing methamphetamine and a precursor substance for supply purposes. The appellant was sentenced to eight years' imprisonment, which he now sought to challenge on appeal. Counsel for the appellant argued that the inclusion of an uplift for the presence of an air pistol was incorrect and that the discount for remorse and rehabilitation was inadequate. The Crown did not object to an extension of time for the appeal, which was subsequently granted. The court considered the legal issues raised by the appellant and concluded that the Judge's imposition of an uplift for the air pistol was appropriate, given the presence of firearms in a drug dealing context. The court also found that the discount for remorse and rehabilitation was reasonable, considering the appellant's prior convictions and the need for deterrence in commercial drug-related offending. The appeal against sentence was dismissed, and the original sentence was upheld.

Mr Whare's case involved serious drug-related offending, including significant dealing in both class A and class C drugs. The appellant was found in possession of materials used in the manufacture of methamphetamine, along with the air pistol and other weapons. The presence of firearms in such a context is a circumstance that can properly be taken into account at sentencing, even if firearms charges are not pursued. The court considered the overall criminality involved in the offending and determined that the starting point adopted by the Judge was appropriate. The appellant's personal factors, such as remorse and rehabilitation, were acknowledged by the Judge, but the court emphasised that these factors are "relegated in importance" to the need for deterrence in this class of drug offending. The discount applied by the Judge was within the available range, and the final sentence imposed could not be said to be manifestly excessive.

Orders