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Wharepapa v R

Wharepapa v R

Case [2021] NZHC 1011 7 May 2021

Appeal

Aggravated & Exemplary Damages

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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

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 Wharepapa v R

Details

AGLC: Wharepapa v R [2021] NZHC 1011
Case: [2021] NZHC 1011
Decision Date: 7 May 2021

CaseChat Overview and Summary

Ronald Sydney Wharepapa appeals his conviction for assault with a weapon and breaching a protection order, for which he was sentenced to two years and three months’ imprisonment. Wharepapa argues the starting point and uplift for previous convictions was excessive. The High Court finds the starting point was too high and the uplift was too great. The starting point of 24 months was based on the two aggravating factors: the attack on the victim’s head and the victim’s vulnerability. However, the risk of serious injury was subsumed by the aggravating factor of attacking the head. The court finds an appropriate starting point for both offences would be 20 months’ imprisonment. The uplift for previous convictions was also excessive. The pre-sentence report and sentencing judge erroneously recorded that Wharepapa’s last conviction for violent offending was in 2013. The last offence was in 2007, 13 years before the present offending. The uplift was six months. However, the pre-sentence report writer suggested the appropriate sentence would be one of intensive supervision, or a custodial sentence with release conditions. The pre-sentence report suggested plans were in place to enable safe contact between Wharepapa and his children. The High Court considers the appropriate starting point sentence for Wharepapa’s offending was 20 months’ imprisonment. Wharepapa received a credit of three months for his guilty pleas, resulting in a sentence of 17 months’ imprisonment. Wharepapa’s appeal is allowed. The District Court sentence is quashed and in substitution, Wharepapa is sentenced to imprisonment for 17 months on each charge, to be served concurrently. Wharepapa is to be subject to a range of release conditions.

Orders