Wharewhiti v The King - [2023] NZCA 29

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA342/2022
[2023] NZCA 29

BETWEEN	TEWE-LANCE TOKOTAHI WHAREWHITI Appellant
AND	THE KING Respondent

Hearing:	16 February 2023
Court:	French, Ellis and Churchman JJ
Counsel:	J M Grainger for Appellant R K Thomson for Respondent
Judgment:	24 February 2023 at 10.30 am

JUDGMENT OF THE COURT

AThe appeal is allowed. The sentence of two years and one month’s imprisonment is quashed and replaced with a sentence of intensive supervision for 12 months subject to the following special conditions:
(a)To attend an assessment for Community Corrections Department Programme as directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer;
(b)To attend and complete an appropriate programme, counselling or treatment to address offence related offending to the satisfaction of a Probation Officer. The specific details of the appropriate programme shall be determined by a Probation Officer; and
(c)Not to associate or have any contact with Mongrel Mob members or associates unless prior approved by a Probation Officer.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

Following a guilty plea, Mr Wharewhiti was convicted in the District Court of aggravated robbery and sentenced by Judge O’Driscoll to a term of imprisonment of two years and one month.[1]
[1]R v Wharewhiti [2022] NZDC 5244 [Sentencing notes].
He appealed his sentence to the High Court but the appeal was dismissed by Mander J.[2] Mr Wharewhiti then sought and obtained leave to appeal to this Court.[3]

Background

[2]Wharewhiti v R [2022] NZHC 1367 [High Court decision].

[3]Wharewhiti v R [2022] NZCA 629 [Court of Appeal leave decision].

Mr Wharewhiti is a patched member of the Mongrel Mob. The victim of the aggravated robbery was a patched member of a rival gang, the Barbarian Stormtroopers.
On the evening of 21 August 2021 Mr Wharewhiti was in the company of two other patched members of the Mongrel Mob, his older brother Mr Eru and a Mr Buchanan. They came across the victim who appeared to be alone in a carpark working on a motorcycle. The three men approached the victim and attacked him in an effort to remove his patch. Mr Wharewhiti along with Mr Eru struck the victim repeatedly with punches and kicks aimed at the head and body. Mr Buchanan kept watch holding a glass bottle by its neck like a club.
Associates of the victim arrived at the scene and attempted to thwart the attack by driving their vehicle towards the attackers. At this point, Mr Wharewhiti and Mr Eru were dragging the victim along the ground while continuing to strike him and remove his patch. After several more blows to the head and body, Mr Buchanan hit the victim with the bottle and the patch was removed. The three then fled the scene.
When spoken to by the police, Mr Wharewhiti denied any involvement in…

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: [2023] NZCA 29
Decision Date: 24 February 2023 at 10.30 am

CaseChat Overview and Summary

The appeal was brought by Tewe-Lance Tokotahi Wharewhiti against his conviction for aggravated robbery and the sentence imposed by the District Court. The appeal was ultimately allowed by the Court of Appeal of New Zealand, which substituted the original sentence with one of intensive supervision for 12 months, subject to special conditions. The key legal issues revolved around the appropriateness of the starting point for the sentence, the applicability of discounts for certain mitigating factors, and the overall proportionality of the sentence in light of the offender's prospects for rehabilitation and youth. The Court of Appeal found that the District Court had overlooked some significant references in the cultural report, which highlighted the offender's close relationship with his brother, who had taken steps to distance himself from gang life. This, combined with the offender's limited criminal history, stable employment, and expressions of remorse, justified greater discounts than those given. As a result, the Court of Appeal concluded that a sentence of home detention would have been more appropriate, although given the time already served, an intensive supervision order was the most suitable alternative.

The Court of Appeal held that the District Court's starting point for sentencing was within an acceptable range, given the aggravating features of the offending, such as the extended group attack rooted in gang rivalry and the use of a weapon. However, the Court found that the District Court had not adequately considered the cultural report and the offender's prospects for rehabilitation. The cultural report revealed the strong bond between the offender and his brother, who had taken steps to distance himself from gang life, and the influence that this relationship had on the offender's decision to join the gang. Additionally, the offender had a limited criminal history, stable employment, and expressed remorse, which justified greater discounts than those given. As a result, the Court concluded that a sentence of home detention would have been more appropriate, although given the time already served, an intensive supervision order was the most suitable alternative.

Orders