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 months’ imprisonment.   The sentence was ordered to be served concurrently with a same and lesser sentence for the other convictions.   Home detention was not considered, and that aspect is not under challenge.

[7]      Both  counsel  on  the  appeal  invited  analogy  with  the  Court  of Appeal’s decision in R v Harris.[1]     That appeal set out bands of relative seriousness with appropriate starting points for categories of offending comprising injuring with intent to injure.  That offence has the same maximum penalty of five years’ imprisonment as the more serious of the charges resulting in the present sentencing.

[1] R v Harris [2008] NZCA 528.

[8]      Counsel on the present appeal agree that Mr Whatuira’s offending fits into band  two  as  proposed  in  Harris,  namely where the injuries  are moderate, then sentences of up to two years’ imprisonment can be justified before allowance for personal aggravating and mitigating factors.

[9]      Here, the Judge adopted that as the starting point for the most serious charge of assault with a weapon.  He then added an uplift of six months to reflect the totality of the offending, on the premise that he would be imposing concurrent sentences on all three convictions.

[10]     In challenging the sentence, Mr Hannam argues that the six months’ uplift should be taken as also reflecting the extent of Mr Whatuira’s previous convictions, implicitly on the basis that the starting point of two years was an adequate sentence to reflect the totality of the offending in all three convictions.

[11]     I  treat  the  Judge’s  reasoning  as  not  including  any  uplift  for  previous convictions, having treated two years as the appropriate starting point for a single conviction,  and  considering  a  need  to  uplift  that  to  reflect  the  totality  of  the offending in the three convictions.

[12]     Both counsel also referred to a further Court of Appeal decision in R v Stone.[2]

Mr Hannam argued that by comparison with the sentence confirmed in Stone, the present  sentence  was  manifestly  excessive.    There,  Mr Stone  had  consumed  a considerable  amount  of  alcohol  at  a  party  and  became  increasingly  aggressive towards some guests.  He was involved in an argument with the victim and struck him about the head with a paling from a wooden fence, which still had a nail protruding out of it, causing localised bruising and wounds.  He later attacked the same victim with a knife, one blow almost severing the victim’s right arm.  He threw two glass bottles at the vehicle collecting the victim, smashing its front windscreen and side window.  The sentencing judge treated the assault with a weapon as the lead offence, attracting a starting point of 13 months’ imprisonment, uplifted by three months to take account of Mr Stone’s previous convictions, and then imposed a final sentence of 18 months’ imprisonment.

[2] R v Stone [2011] NZCA 558.

[13]     The arithmetical error in this sentencing was treated by the Court of Appeal as   reflecting   an   intention   by   the   sentencing   judge   to   impose   18 months’ imprisonment.   Aggravating features were Mr Stone’s propensity for violence and the additional charge of intentional damage, so that the end sentence was appropriate to reflect the totality of the offending.  The Court of Appeal endorsed the sentencing judge’s approach and was not satisfied that he had erred in settling on 18 months’ imprisonment.

[14]     Mr Hannam argues that the offending in Stone was worse and that therefore, by comparison, Mr Whatuira ought to attract a lesser end sentence than 18 months.

[15]     However,  Ms Law  does  not  accept  that  the  overall  sentencing  prospect presented by Mr Stone was different because he had only four previous violence convictions, and was before the Court on only one charge of assault with a weapon. In contrast, Mr Whatuira had relatively a much worse record of previous violence convictions, and was being sentenced on one common assault and two convictions for assault with a blunt instrument.

[16]     The seriousness of the attack in Stone is certainly worse than that involved in the present appeal, but that is offset to an extent by the larger uplift justified to reflect the relatively more serious extent of Mr Whatuira’s previous convictions for violent offending than was the case with Mr Stone.  If those two considerations more or less cancel each other out, then an outcome the same as the sentence upheld in Stone appears appropriate.

[17]     I am wary of finding this sentence manifestly excessive on the basis of the competing arguments of comparison with the Court of Appeal’s reconsideration of sentencing in one case.   Counsel did offer other comparators, in particular the unsuccessful appeal to the High Court in R v Blondell.[3]    There, a challenge to a sentence of 11 months’ imprisonment for assault with a weapon and four other convictions was unsuccessful.  Factual differences and the nature of the points taken on appeal may deprive it of any material utility in considering the present appeal.

[3] R v Blondell [2012] NZHC 533.

[18]     Each sentencing will have its own particular combination of factual matters. Having considered everything raised on the appeal, it is appropriate in this one to go back to the bands in Harris as a starting point, and be guided by the approach, as much as the particular outcome, in Stone.

[19]     In the end, I am persuaded that the sentence here ought not to be any more than in Stone and, because of the less serious nature of the attack on his father and the extent of injuries inflicted, that there ought to be a modest differential between the length of prison sentences imposed.  That difference would be greater had it not been for the uplift justified on account of Mr Whatuira’s previous convictions.  I am satisfied that a prison term of 20 months is excessive.  The appeal against sentence is allowed and I substitute a sentence of 17 months’ imprisonment.

[20]     A troubling aspect of the appeal is that Mr Whatuira Senior had complained to the Police in part to seek help for his son’s explosive behaviour.  That was not reflected in any conditions imposed on his sentence.  Both counsel accepted that a condition he be considered for and attend any anger management training would be appropriate, unless there were reasons unknown to them as to why it should not occur.

[21]     Mr Hannam acknowledged that an initiative of that type was ordered in 2005. Mr Whatuira has offended again since then, and would seem to be eligible.   I am therefore minded to make it a condition of the reduced sentence that Mr Whatuira undertake such a course.   However, I am less than fully informed and can do no more than indicate that I would impose such a condition, if I were satisfied that there was no regulatory or institutional impediment to my doing so.  Obviously, I hope that

there is not, and that such training will be provided for him.

Solicitors:

J C Hannam, New Plymouth for appellant

Crown Solicitor, New Plymouth for respondent

Dobson J