Wharewhiti v The the King - [2022] NZCA 629

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA342/2022
[2022] NZCA 629

BETWEEN	TEWE-LANCE TOKOTAHE WHAREWHITI Applicant
AND	THE KING Respondent

Court:	French, Thomas and Mallon JJ
Counsel:	J M Grainger for Applicant C Ure for Respondent
Judgment: (On the papers)	15 December 2022 at 2.30 pm

JUDGMENT OF THE COURT

A The application for leave to appeal is granted.

BThe appeal is to be allocated an urgent oral hearing before a divisional court at the earliest available date in February 2023.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

Mr Wharewhiti was convicted in the District Court of aggravated robbery and sentenced to a term of imprisonment of two years and one month.[1] He seeks leave to appeal his sentence. Leave is required because the proposed appeal would be a second appeal, he having already unsuccessfully appealed to the High Court.[2]
[1]R v Wharewhiti [2022] NZDC 5244 [Sentencing notes].
[2]Wharewhiti v R [2022] NZHC 1367 [High Court decision].
In a minute dated 19 August 2022, Courtney J directed that the issue of leave should be determined separately from the proposed substantive appeal and that the leave application should be decided on the papers.

Background

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 and two other associates Messrs Eru and Buchanan came across the victim who was 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 the assault. The other two made no comment.
Following a sentence indication, both Mr Wharewhiti and Mr Buchanan subsequently pleaded guilty to the charge of aggravated robbery.[3]

Sentencing in the District Court

[3]The Judge declined to give a sentencing indication for Mr Eru because he was facing another unrelated serious charge.

Due to illness Mr Buchanan and Mr Wharewhiti were not sentenced at the same time.
In sentencing Mr Wharewhiti on 25 March 2022, Judge O’Driscoll adopted a starting point of three years and a half years’ imprisonment, relying on the decision of this Court in R v Mako.[4] He then…

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: [2022] NZCA 629
Decision Date: 15 December 2022 at 2.30 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application from Tewe-Lance Tokotahe Wharewhiti for leave to appeal his sentence, which was granted. Wharewhiti was convicted of aggravated robbery and sentenced to two years and one month in prison by the District Court. He had previously appealed to the High Court, which was unsuccessful. Wharewhiti seeks leave to appeal his sentence, which would be a second appeal.
The court was required to decide whether the proposed appeal involved a matter of general or public importance or whether a miscarriage of justice may have occurred or may occur unless the appeal is heard. The focus of the proposed appeal is the issue of a discount for youth, specifically the correct approach to determining youth discounts for young gang members. Counsel argued that the failure of both the District Court and the High Court to allow for Wharewhiti's youth and rehabilitation potential had created the risk of a miscarriage of justice and resulted in a manifestly excessive sentence.
The court was persuaded that the application for leave to appeal had been met on the basis that a miscarriage of justice may have occurred. Wharewhiti was the youngest of the three offenders and the only one of them to be sentenced to imprisonment. His role in the offending was not more serious and arguably slightly less. He has a very limited criminal history, has worked continuously since the age of 16 and has a supportive family. The court found that there was an argument worthy of ventilation on appeal that the High Court placed excessive weight on one statement in the pre-sentence report about being committed to the gang at the expense of other positive material. This material arguably should have justified discounts for rehabilitative prospects and youth, thereby rendering Wharewhiti eligible to be considered for home detention.
The application for leave to appeal is granted, and the appeal is to be allocated an urgent oral hearing before a divisional court at the earliest available date in February 2023.

Orders