Wharepapa v Police - [2015] NZHC 3280

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2015-416-000020 [2015] NZHC 3280

BETWEEN
PADDY WHAREPAPA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 14 December 2015

Appearances:

A M Simperingham for Appellant
M J M Mitchell for Respondent

Judgment:

17 December 2015

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 17 December 2015 at 3.00 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

WHAREPAPA v NZ POLICE [2015] NZHC 3280 [17 December 2015]

Introduction

[1] Paddy Wharepapa was sentenced in the District Court at Gisborne on

6 November 2015 on one charge of aggravated robbery. Judge Adeane imposed a sentence of two years 11 months’ imprisonment1 in accordance with the sentencing indication given by Judge Bergseng.2 Mr Wharepapa appeals that sentence on the ground that it is manifestly excessive as a result of the Judge failing to give appropriate discounts for:

(a) Mr Wharepapa’s claim to have been coerced by a co-offender; (b) genuine expressions of remorse;
(c) efforts at rehabilitation.

[2] I have concluded that there was error made in relation to the issue of coercion. As a result the appeal will be allowed on that ground and it is unnecessary to consider the other grounds.

The offending and sentencing in the District Court

The summary of facts

[3] On 3 May 2014 Mr Wharepapa and three others went to the home of the two victims, Messrs Collins and Hedge. One of the co-offenders was Mr Wharepapa’s older cousin, Hira Wharepapa, with whom he had a close relationship. The summary of facts on which Mr Wharepapa pleaded recorded that the four offenders arrived at the victims’ address, Hira Wharepapa having been invited there by one of the victims to discuss an allegation of theft the previous evening:

The defendant Hira John WHAREPAPA and defendant Jackson Hirini GRAY entered the address and were speaking with the victims COLLINS and HEDGE.

The victim COLLINS accused the defendant Jackson Hirini GRAY of stealing money the previous evening at which point the defendant Jackson Hirini GRAY said “fuck this give me the money and the shit”.

1 R v Gray [2015] NZDC 22047.
2 R v Wharepapa DC Gisborne CRI-2014-016-973, 21 August 2015.

The defendant Paddy WHAREPAPA and another male entered the dwelling.

The defendants Hira John WHAREPAPA and Jackson Hirini GRAY began assaulting COLLINS and HEDGE. The defendant Paddy WHAREPAPA and the unknown male have also begun assaulting the victims.
The defendants have assaulted COLLINS in the kitchen and dining area. During the assault COLLINS was kicked and punched in the body and head. The defendants assaulted HEDGE in the lounge area of the address during
which they kicked and punched HEDGE to the body and head.

One of the associates held HEDGE’s head on a coffee table while the other kicked him in the head. …

Sentencing indication

[4] In his sentencing indication Judge Bergseng described the respective roles of the co-offenders and also commented on Mr Wharepapa’s claim to…

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: [2015] NZHC 3280
Decision Date: 17 December 2015

CaseChat Overview and Summary

The case of Wharepapa v Police involves an appeal against the sentence of Paddy Wharepapa, who was convicted of aggravated robbery and sentenced to two years and eleven months' imprisonment by the District Court at Gisborne. The appellant argued that the sentence was manifestly excessive due to the sentencing judge's failure to consider certain mitigating factors, including the appellant's claim of coercion by a co-offender, expressions of remorse, and efforts at rehabilitation. The High Court of New Zealand was tasked with determining whether there was an error in the sentence imposed by the District Court.

The legal issue before the court was whether the District Court judge erred in not considering the appellant's claim of coercion by a co-offender as a mitigating factor in the sentencing process. The court noted that while the issue of coercion was mentioned in the sentencing indication, it was not specifically addressed or considered by the District Court judge, despite the existence of evidence suggesting that the appellant might have been coerced. The court also considered whether the appellant's claim of coercion, if proven, would have warranted a different sentence, and whether the sentencing judge should have indicated the weight likely to be attached to this fact and its significance to the sentence.

The High Court held that there was an error in the District Court's handling of the issue of coercion, as it was not specifically considered despite the existence of evidence suggesting the appellant might have been coerced. The court found that the failure to consider this mitigating factor constituted an error in the sentencing process. The appeal was allowed, the sentence was quashed, and the matter was remitted to the District Court for a disputed facts hearing to determine whether the appellant was, in fact, coerced by a co-offender.

The final orders of the court were that the appeal was allowed, the sentence imposed by the District Court was quashed, and the matter was remitted to the District Court for a disputed facts hearing to determine the extent of the coercion, if any, and its impact on the appellant's sentence.

Orders