Whatuira v Police - [2012] NZHC 1995

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2012-443-025 [2012] NZHC 1995

BETWEEN BRENDON PERNELL WHATUIRA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 7 August 2012

Counsel: J C Hannam for appellant
S A Law for respondent

Judgment: 9 August 2012

RESERVED JUDGMENT OF DOBSON J

[1] The appellant (Mr Whatuira) was sentenced in the District Court at New Plymouth on 16 May 2012 on charges, to which he had pleaded guilty, of two counts of assault with a blunt instrument, and one of common assault. Those convictions carried maximum penalties of five years’ and one year’s imprisonment respectively. Mr Whatuira was sentenced to one year and eight months’ imprisonment and now appeals that sentence.

[2] Mr Whatuira, who is aged 39, went to his parents’ house on the day of the attack and asked his elderly father for a ride into town later in the day to enable him to attend an appointment. His father agreed to take him but indicated that they would have to go at the time of the request rather than later, as Mr Whatuira’s father had other plans for that time. An argument developed and whilst the father was leaning into the boot of the car, Mr Whatuira punched him in the face. He then picked up a hammer from the boot and followed his father, who had begun to walk
away. He told his father he was going to kill him, then struck him on the elbow with

WHATUIRA v NEW ZEALAND POLICE HC NWP CRI 2012-443-025 [9 August 2012]

the hammer. The father grabbed the hammer so Mr Whatuira then picked up his mountain bike and also threw that at his father, hitting him on the arm. His father retreated and called the Police.

[3] Mr Whatuira’s father had concerns that previous instances of explosive behaviour by Mr Whatuira could be a consequence of his having suffered meningitis as a child. He apparently pressed the present charges in an attempt to get his son directed towards anger management assistance.

[4] Mr Whatuira has 37 previous convictions, 17 of them being in the nature of assault or threatening behaviour.

[5] In the District Court, the Judge assessed the relative seriousness of the assault without comparing the possible range of sentences and the guidance provided in relevant appellate decisions. That point is advanced as one of the criticisms supporting a submission that both the starting point, and end sentence, were manifestly excessive.

[6] The Judge took a starting point of two years for the assault with a weapon, and uplifted it by 25 per cent to two years and six months to take account of the other offending. He gave a seven month discount for the guilty plea, leaving a term of 23 months’ imprisonment. The Judge then gave a three month discount because of the father’s plea as to the manner in which Mr Whatuira ought to be dealt with. That led to the end sentence of one year and eight…

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: [2012] NZHC 1995
Decision Date: 9 August 2012

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Brendon Pernell Whatuira against his sentence for multiple assault charges. Mr Whatuira had pleaded guilty to two counts of assault with a blunt instrument and one count of common assault. He was sentenced to one year and eight months' imprisonment in the District Court at New Plymouth. The appeal focused on the proportionality and appropriate severity of the sentence. The court considered whether the starting point and the final sentence were excessive, particularly in light of the mitigating factors and the appellant's history of violent offending.

The legal issues in the appeal centered on whether the District Court judge had appropriately assessed the relative seriousness of the assault and applied the correct sentencing principles. The appellant's counsel argued that the six-month uplift should reflect the extent of the appellant's previous convictions and that the final sentence was manifestly excessive when compared to a similar case decided by the Court of Appeal. The respondent's counsel contended that the comparison with the case of R v Stone showed that the sentence was appropriate given the totality of the offending and the appellant's extensive history of violent behaviour.

The court, after reviewing the sentencing principles and the relevant case law, determined that the sentence should be comparable to the sentence upheld in R v Stone. While the attack in the current case was less severe, the appellant's more extensive history of violent offending justified a higher uplift. The court concluded that a prison term of 20 months was excessive and substituted a sentence of 17 months' imprisonment. The court also considered imposing a condition that the appellant attend anger management training, although it noted that it could not do so definitively without further information on any potential impediments.

The final orders of the court were to allow the appeal against sentence, reduce the sentence to 17 months' imprisonment, and indicate a conditional order for the appellant to undertake anger management training, pending resolution of any potential impediments.

Orders