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  have  been coerced into being involved:

Mr  Hira  Wharepapa  is  said  to  be  the  main  instigator.    However,  all defendants were prepared to go along with the plan.  As to Mr Paddy Wharepapa playing a lesser role and being coerced to become involved, at the end of the day he entered the house behind all the others and it cannot be said he was coerced into doing that.

[5]      Mr Simperingham, who appeared for Mr Wharepapa in the District Court and on appeal, told me that the issue of compulsion was not addressed for the purposes of the sentencing indication but merely signalled as a matter that would be advanced at any subsequent sentencing.   In particular, although Judge Bergseng was told of statements that Hira Wharepapa had made regarding Mr Wharepapa being coerced, there was no evidence before him on that issue.

[6]      Judge Bergseng indicated an appropriate starting point of three years six months with a discount for a guilty plea in the range of 15 per cent, leaving any other reductions for mitigating factors until after a pre-sentence report had been obtained.

Sentencing

[7]      On sentencing Judge Adeane had the benefit of the pre-sentence report, an affidavit from Hira Wharepapa, character references and a letter from Mr Wharepapa

himself.  In his affidavit Hira Wharepapa said that “In light of the brotherly nature of my relationship with Paddy, and our age difference, I expect that he would have felt pressured to come along with me”.  In addition, Mr Simperingham referred (without objection from the Crown) to statements made by Hira Wharepapa in his police interview, in which he described how he “stood over” Mr Wharepapa who “just listened and just followed like a sheep” and that he, Hira, threatened Mr Wharepapa so as to make sure that there was “no running and no flinching”.

[8]      The  pre-sentence  report  conveyed  Mr  Wharepapa’s  claim  that  he  “was somewhat forced to do what he did” because he felt threatened by his older family member (presumably Hira Wharepapa).   This  claim was made, somewhat more forcefully, in the letter Mr Wharepapa wrote to the sentencing Judge.  He said that he acted out of fear of being stabbed, his house being burnt down and  his family harmed.

[9]      Judge Adeane made no specific mention of the issue of compulsion.  He said that he had given the personal circumstances of the defendants “as much weight as the Court is able to give them” but was not persuaded that any further discount was justified.

Appeal: failure to recognise coercion as a mitigating factor

[10]   Although compulsion may be a mitigating factor,3  Mr Simperingham acknowledged that where an offender is reluctant, but nevertheless participates voluntarily there can be no basis for a discount.4   However, he submitted that in this case there was evidence of overt violence that should have been considered.   He suggested that the proper course would be to remit the matter for a disputed facts hearing in the District Court.

[11]     Ms Mitchell, for the Crown, submitted that there was simply no reliable evidence of the coercion in this case and that, had there been any concern with the way the issue was dealt with in the sentencing indication, a disputed facts hearing

should have been sought.

3      e.g. R v Taiaroa [2015] NZHC 2782.

[12]     It is not clear what view the Judge took of the issue or if he even gave it specific consideration; the Judge referred to the pre-sentence report but only to Mr Wharepapa’s “personal circumstances”.  A claim of coercion would not usually be  regarded  as  a  personal  circumstance.     There  was  no  reference  to  Hira Wharepapa’s affidavit, nor to Mr Simperingham’s submission about Hira Wharepapa’s statement to the police.

[13]     Possibly the Judge was under the misapprehension that the issue had been fully canvassed before Judge Bergseng and therefore did not consider it necessary to embark  on  a  specific  consideration  of  this  aspect  of  the  sentencing.    Clearly, however, it had not been raised for consideration before Judge Bergseng and it was therefore an error not to specifically consider it at sentencing.

[14]     Whether Mr Wharepapa was coerced to the extent he claims was a matter that ought to have been determined by a disputed facts hearing.  It is quite possible, as Ms Mitchell asserts that the suggested coercion has been fabricated or exaggerated by both Mr Wharepapa and Hira Wharepapa.  Certainly, Hira Wharepapa’s affidavit describes  a  much  less  serious  situation  than  his  statement  to  the  Police  and Mr Wharepapa’s letter to the Court, though there may be reasons for that.  However, from Mr Wharepapa’s perspective there was an evidential basis that, had it been made out, would have had to have been considered by the sentencing Judge.  Section

24(2) of the Sentencing Act 2002 was therefore engaged and the Judge ought to have indicated the weight likely to be attached to the fact, if it were found to exist, and its significance to the sentence.5

[15]     Under s 250 of the Criminal Procedure Act 2011 a first appeal Court must allow an appeal if it is satisfied that, for any reason, there is error in the sentence imposed on conviction and that a different sentence should be imposed.  An error may include failing to take a relevant factor into account.   Under s 251(2) if an appeal is allowed, one of the options is to remit the sentence to the sentencing Court with a direction that the Court impose another sentence or vary the sentence in

accordance with s 251(2)(a) or (b).  In Sionetuato v NZ Police,6 Collins J considered

5      Sentencing Act 2002, s 24(2).

that provision permitted the remission of a sentence to the District Court for the purposes  of a disputed  facts  hearing and  I agree that  that  is  a course  properly available and one that is appropriate in this case.

Result

[16]     The appeal is allowed.  The sentence is quashed.  The matter is remitted to the District Court for a disputed facts hearing.

P Courtney J