Wharepapa v R
[2021] NZHC 1011
•7 May 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-409-000040
[2021] NZHC 1011
BETWEEN RONALD SYDNEY WHAREPAPA
Appellant
AND
THE QUEEN
Respondent
Hearing: 28 April 2021 Appearances:
E J Forster for the Appellant
J E Lancaster for the Respondent
Judgment:
7 May 2021
JUDGMENT OF NATION J
Introduction
[1] Mr Wharepapa was convicted of assault with a weapon and breaching a protection order. Judge Garland sentenced him to two years and three months’ imprisonment.1
[2]Mr Wharepapa appeals that sentence.
Facts
[3] The victim is Mr Wharepapa’s ex-partner. They were together for 20 years and share three children, an adult daughter and two younger sons.
1 R v Wharepapa [2021] NZDC 1300.
WHAREPAPA v R [2021] NZHC 1011 [7 May 2021]
[4] On 20 December 2019, a protection order was issued against Mr Wharepapa in relation to the victim. On 15 February 2020, Mr Wharepapa was detained following a family harm incident. A 10 day police safety order was issued and served on Mr Wharepapa. The victim was named as the protected person.
[5] The day after the safety order was issued, Mr Wharepapa was at an address in Fitzgerald Avenue, Christchurch with the victim. They got into an argument. Mr Wharepapa became angry and verbally abused the victim. At the time, they were on opposite sides of a vehicle. Mr Wharepapa threw a full glass bottle at the victim. The bottle struck the top of her head, causing a laceration, and smashed. Mr Wharepapa continued to verbally abuse the victim until he was driven away by an associate.
District Court decision
[6] Judge Garland set out the facts of the offending. He then turned to the pre- sentence report.
[7] The Judge recorded Mr Wharepapa was 49 years of age with a criminal history spanning nearly four decades. He noted prior offending has been strongly linked to Mr Wharepapa’s membership of the Mongrel Mob.
[8] The Judge considered the pre-sentence report writer’s comments that Mr Wharepapa seems to be on a desistence pathway. He said Mr Wharepapa’s last convictions of significance were for violence-related offences and resulted in a term of imprisonment in 2013. The Judge noted Mr Wharepapa has, since then, been convicted of less serious matters which have been dealt with largely by fines or community work.
[9] The Judge referred to the fact that Mr Wharepapa refused to discuss his drug and alcohol issues with the probation officer. The Judge noted Mr Wharepapa’s anti- authority and anti-social attitudes, sense of entitlement, externalisation of blame and justification of his offending. With respect to the breach of the protection order, the Judge considered Mr Wharepapa’s explanation, that nothing would stop him seeing his children, to be inadequate.
[10] The Judge noted Mr Wharepapa refused to provide an address for electronic monitoring in his own region (Hastings).
[11] In setting a starting point, the Judge referred to the statutory purposes and principles of the Sentencing Act 2002 and the guideline decision of Nuku v R.2 He outlined the circumstances of the hearing, noting Mr Wharepapa had dispensed with two lawyers and elected to represent himself.
[12] On the assault charge, the Judge found the following aggravating factors were present:
(a) Mr Wharepapa threw a bottle at the head of the victim, the most vulnerable part of a person’s body;
(b) it was thrown with substantial force and did cause injury;
(c) Mr Wharepapa breached the police safety order and protection order;
(d) the victim was vulnerable; and
(e) it is highly likely the victim suffered psychological harm.
[13] The Judge found these factors justified a starting point at the upper end of band two of Nuku and imposed a starting point of two years’ imprisonment.
[14] The Judge turned to the aggravating and mitigating factors personal to Mr Wharepapa. He imposed an uplift of six months (25 per cent) for Mr Wharepapa’s previous convictions, set off by a three month (12.5 per cent) reduction for Mr Wharepapa’s very late guilty plea.
[15]That led to an end sentence of two years and three months’ imprisonment.
2 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
Principles on appeal
[16] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and a different sentence should be imposed.3 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.4 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.5
Submissions
Appellant’s submissions
[17] Mr Forster, for Mr Wharepapa, argued the combination of a starting point that was too high and excessive uplift for previous convictions led to a manifestly excessive sentence.
[18] Mr Forster provided numerous cases as authority for his submission that the starting point was too high. He submitted the case of Keegan v Police was the most analogous.6 Additionally, Mr Forster submitted the Judge erred in his assessment of aggravating factors of the offence.
[19] Mr Forster argued neither a bottle thrown to the head nor the risk of serious injury are aggravating factors under the case law. He submitted the two factors are properly subsumed by the aggravating factor “attack to the head”.
[20] Mr Forster submitted an uplift of a month or two was all that was needed to recognise the breach of a protection order.
3 Criminal Procedure Act 2011, ss 250(2) and 250(3).
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
5 Ripia v R [2011] NZCA 101 at [15].
6 Keegan v Police [2020] NZHC 489.
[21] Mr Forster strongly contested the aggravating factor of inferred psychological harm. He accepted that the harm suffered by a victim is relevant but submitted procedural fairness would require notice and an opportunity to question, call evidence or make submissions about any alleged harm. He did, however, acknowledge that there is no statutory standard of proof if the Judge asserts a sentencing fact.
[22] Mr Forster pointed out Mr Wharepapa had not been to court for six years, and his last conviction for violence was 13 years ago. He submitted the age of these convictions meant no uplift, or at least a lesser uplift should have been imposed. He noted 25 per cent was a very sizable uplift in the circumstances.
Respondent’s submissions
[23]For the Police, Ms Lancaster argued the Judge’s sentence was within range.
[24] Ms Lancaster submitted the starting point was reasonable and could have been higher. She justified this by reference to the five aggravating factors identified by the Judge including, in particular, the breach of the protection order.
[25] Ms Lancaster acknowledged the uplift for previous convictions could be regarded as stern, but submitted it was open to the Judge.
Analysis
[26]I begin by determining the appropriate starting point for the offending.
[27] In Nuku v R, the Court of Appeal considered the appropriate starting point bands for wounding with intent, aggravated wounding or injury, and injuring with intent.7 In Hurinui v R, the Court of Appeal affirmed that the same methodology is applicable to assault with a weapon.8
7 Nuku v R, above n 2.
8 Hurinui v R [2014] NZCA 290.
[28] The starting point bands in Nuku are assessed by reference to the aggravating factors listed in R v Taueki, another decision of the Court of Appeal.9 Two factors are present here:
(a) attacking the head; and
(b) vulnerability of the victim.
[29] The victim was vulnerable due to an evident physical and circumstantial power imbalance. Although the vehicle was between them, she was only a short distance from Mr Wharepapa. The bottle must have been thrown with considerable force to break as it did. The victim would have had very little time to react and avoid injury. The vulnerability of a victim in a domestic violence case was noted in Taueki as a significant factor.10 The particular circumstances of this domestic violence and the need to protect the victim and deter Mr Wharepapa from offending in a similar way against her in the future were particularly important matters in assessing the gravity of the offending.
[30] In throwing the bottle as he did, Mr Wharepapa had reacted irrationally, with extreme anger, in a way that was most dangerous for the victim, consistent with his anti-authority and anti-social attitudes, sense of entitlement, externalisation of blame and justification which the pre-sentence report writer said he had revealed during the interview.
[31] I do not treat the use of a weapon as an aggravating factor. Although it is listed in Taueki, it is an element of the offence of assault with a weapon.
[32] The Judge also considered the risk of serious injury an aggravating factor. I find that factor subsumed by the aggravating factor of “attacking the head”. There was a risk of serious injury because the bottle was thrown at the victim’s head, and that is what is contemplated by the “attacking the head” aggravating factor.11
9 R v Taueki [2005] 3 NZLR 372 (CA) at [31].
10 At [33].
11 At [31].
[33] The Judge found it highly likely the victim would have suffered psychological harm in addition to the laceration to her head. I acknowledge Mr Forster’s submission that there was no victim impact statement or chance for Mr Wharepapa to contest this. However, the Judge’s comments were a reasonable assumption. Serious psychological harm was likely to result, especially so when it was apparent from the summary of facts and the pre-sentence report that the victim had moved from Hastings to Christchurch following her obtaining of a protection order.
[34]In any event, the two aggravating factors justify a starting point in band two of
Nuku for the assault with a weapon. Relevantly:12
Band two: a starting point of up to three years’ imprisonment will be appropriate where three or fewer of the aggravating factors listed at [31] of Taueki are present.
[35] The Court of Appeal has said that, in instances such as these, it is appropriate for the court to either arrive at a starting point for the assault and add an uplift for the breach of a protection order, or to arrive at a starting point for both offences.13
[36] Of the cases Mr Forster helpfully referred to, the most relevant were those where the courts were also concerned with domestic violence and violent partners, and associated with breaches of protection orders.14 In Goodman v R, the offender had grabbed his partner by the throat and thrown her across the room. She got up but he pushed her over. He then head-butted her and pushed her outside. He kicked her in the shoulder causing her to fall over. She suffered redness, soreness and a cut to her forehead. The starting point of 28 months’ imprisonment for charges of assault with intent to injure and male assaults female was approved by the Court of Appeal.
[37]Here, there was not sustained violence nor was it premeditated.
12 Nuku v R, above n 2, at [38].
13 Enoka v R [2012] NZCA 435; Davidson v R [2020] NZCA 230.
14 Thompson v Police [2017] NZHC 3039; Samuel v R [2012] NZCA 376; Paraone v Police [2016] NZHC 2549; Goodman v R [2016] NZCA 64; Holdem v R [2014] NZCA 546; Wati v R [2015] NZHC 2064; Still v Police [2019] NZHC 2730; Keegan v Police, above n 6.
[38] Mr Wharepapa told the pre-sentence report writer he had not intended the bottle to hit the victim in the head. Despite that, he obviously intended to throw the bottle forcefully at the victim.
[39] The courts must firmly respond to protection order breaches. Because of the high risk of serious violence from Mr Wharepapa towards the victim, there was a particular need to deter him from further breaches and to ensure the protection order would protect the victim from further violence. There is no tariff for breach of a protection order, ultimately each case will rest on its own facts.
[40] Unfortunately, the Judge was provided with very little information as to the circumstances which led the Family Court in Hastings to make a temporary protection order or as to how Mr Wharepapa had responded to the making of that order.15
[41] It was however apparent from the pre-sentence report, and clearly not in dispute, that the protection order had been made in Hastings and the victim and the parties’ children had moved from Hastings to Christchurch. Mr Wharepapa told the report writer he had used his gang connections to find where the victim and their children were residing. The report referred to the victim having left the North Island due to family harm fears and Mr Wharepapa seemingly being critical of her for doing this, describing the move as “taking them away from their gang family”. There was information as to Mr Wharepapa’s attitude and conduct after the breach of protection order for which he had to be sentenced. The summary of facts mentioned that, on Saturday 15 February 2020 at about 5.45 pm, Mr Wharepapa was detained following a family harm incident. The report writer noted it was a condition of his bail that Mr Wharepapa not enter the South Island. Mr Wharepapa had clearly breached that condition and told the probation officer “he had been “arrested seven times” in his efforts to “see my children”.”
[42] This was Mr Wharepapa’s first sentencing for breaching a protection order. He was wanting to see his children. There is little information to suggest he endeavoured
15 The District Court is now attempting to avoid this sort of information vacuum through giving effect to protocols which should mean that, when an offender appears before the District Court on a charge such as these, relevant background information will be obtained from the Family Court at least where there is a bail application.
to remain with the victim after she must have made it clear she did not want to be engaging with him. There is no suggestion he had forced his way into a building where the altercation took place. I infer from the summary of facts that they were in fact outside the house where a car was parked when they were arguing.
[43] I consider an appropriate starting point for both offences would be 20 months’ imprisonment. This is consistent with the starting point adopted for combined domestic violence and breach of protection order offences in cases I was referred to.
[44] This is less than the sentencing Judge adopted. I consider it likely he arrived at his starting point of 24 months for both offences because of particular concerns for the safety of the victim, the need to deter Mr Wharepapa from further violence towards her and to promote respect for the protection order. Those were also likely considerations in his decision to uplift the starting point sentence by six months on account of Mr Wharepapa’s previous convictions. I now consider the uplift.
[45] There was an error in the pre-sentence report. It referred to Mr Wharepapa last being imprisoned for violent offending in 2013. This was repeated by the Judge. However, the last violent offending on his criminal record was in 2007. As Mr Forster submitted, until this offending, Mr Wharepapa had not been to prison for 13 years. He had been sentenced to community work on two charges of behaving threateningly in 2010. His last offence for violence was in 2007 when he was sentenced to nine months’ imprisonment for assaulting a person with a blunt instrument. Prior to that, he had a raft of convictions for a range of offending, including an assault in association with threats to kill or do grievous bodily harm in 1993, wounding with intent to injure/reckless disregard in 1995 and kidnapping in association with the commission of a crime with a firearm in 2001. The pre-sentence report indicated Mr Wharepapa’s record was strongly linked to his gang association. The pre-sentence report however rightly recognised that, since 2013, Mr Wharepapa had been on a desistence pathway. His offending since 2007 had not been for offences of violence. The sentences imposed had been either community work or fines.
[46] For reasons carefully and fully detailed under the heading “key considerations” in the pre-sentence report, Mr Wharepapa was assessed as being at a high risk of
reoffending in the context of family harm and was assessed to pose a particularly high risk of causing future harm to the victim. This was especially so given Mr Wharepapa’s statement that nothing would stop him from seeing his children, and the anger and hostility he directed towards the victim when speaking to the report writer of his belief (not necessarily justified) that she had chosen to live at an address close to where a rival gang was based.
[47] The uplift the Judge arrived at was six months. The Crown accepts this was stern. An extended period of imprisonment of six months will not however, of itself, protect the victim from further offending when Mr Wharepapa is released from his sentence.
[48] The pre-sentence report writer must have recognised this. In the report, the writer referred to various steps that could be taken, either through a sentence of intensive supervision or through the imposition of release conditions that might provide protection for the victim but enable Mr Wharepapa to have contact with his children. The victim remains extremely fearful of Mr Wharepapa but acknowledges the love he has for their children. She also acknowledges that their children want to see him in a way that is safe for their mother. There is a plan for agencies working with the family to facilitate safe and supervised access for Mr Wharepapa.
[49] In my view, effective longer term protection for the victim is more likely to be achieved through giving effect to those plans than through uplifting the appropriate starting point sentence for Mr Wharepapa’s offending. I do not consider it was appropriate to add six months to the prison sentence on account of Mr Wharepapa’s previous offending.
[50] Accordingly, I consider the appropriate starting point sentence for Mr Wharepapa’s offending was 20 months’ imprisonment.
[51] The Judge gave Mr Wharepapa a credit of three months for his guilty pleas. That was generous given the pleas were entered less than a week before the trial was due to commence. The discount of three months remains appropriate. That would accordingly result in an end sentence of 17 months’ imprisonment.
[52] It was not suggested that a sentence of home detention should be substituted. He did not provide Corrections with an address at which such a sentence could have been served. Mr Forster advised that Mr Wharepapa is currently serving his prison sentence in Hawke’s Bay.
Result
[53] Mr Wharepapa’s appeal is allowed. The sentence imposed in the District Court is quashed. In substitution for the original sentence, on each charge he is now sentenced to imprisonment for 17 months, those sentences to be served concurrently.
[54] Mr Wharepapa is to be subject to a release condition that he reside at an address approved by a probation officer, and on the further conditions as set out in the pre- sentence report as follows:
1. To attend and complete an appropriate Stopping Violence Programme to the satisfaction of a probation officer. The specific details of the appropriate programme shall be determined by a probation officer.
2. Attend and complete any recommended intervention for alcohol and drug use to the satisfaction of the probation officer.
3. Not to possess, consume or use any alcohol or drugs not prescribed to him.
4. To submit to electronic monitoring in the form of Global Positioning System (GPS) technology as directed by a probation officer in order to monitor his compliance with any condition(s) relating to his whereabouts.
5. To comply with the requirements of electronic monitoring and provide access to the approved residence to the probation officer and representatives of the monitoring company for the purpose of maintaining the electronic monitoring equipment as directed by the probation officer.
6. Not to leave the North Island and not to travel south of Waipukurau or in any way more than 70 km south of Heretaunga Street, Hastings without prior approval of a probation officer.
7. Not to associate with or contact the victim, or his children without the prior written approval of a probation officer.
[55] With time served, Mr Wharepapa may have to be released from that prison sentence quite soon. As a further release condition, he is not to be released from prison until all steps have been taken to ensure that, on his release, he is subject to electronic monitoring as ordered.
[56] The pre-sentence report referred to the attitude Mr Wharepapa displayed in much of his interview with the report writer. The report referred to the aggression he has displayed towards prison staff and others while on remand in prison. Mr Wharepapa needs to recognise that, unless he takes steps to alter his thinking, he will be at risk of causing violence to the victim. She was his partner for around 20 years and is the mother of his children. He has said he does not want to hurt her in this way. Mr Wharepapa’s children want to be able to see him but only if they know their mother will be safe. To achieve this, Mr Wharepapa will have to take advantage of the programmes and assistance which will be available to him on his release from prison. He must also recognise that, if he does not do this, there will be a risk not just for others but also for himself in that it could lead to further offending of the sort he had moved away from after 2007. Further violent offending would likely lead to a further sentence of imprisonment which would only make life harder for Mr Wharepapa and his children. This Court hopes Mr Wharepapa can benefit from the programmes available to him on his release from prison.
Solicitors:
E J Forster, Barrister, Hastings Crown Solicitor, Christchurch.
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