Whichman v The Queen
[2021] NZHC 3463
•15 December 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-279
[2021] NZHC 3463
BETWEEN GEORGE WHICHMAN
Appellant
AND
THE QUEEN
Respondent
Hearing: 6 December 2021 (further memoranda 9 and 10 December 2021) Appearances:
S Lack for the Appellant
BCL Charmley for the Respondent
Judgment:
15 December 2021
JUDGMENT OF GAULT J
This judgment was delivered by me on 15 December 2021 at 3:00 pm.
Registrar/Deputy Registrar
……………………………………
Solicitors / Counsel:
Mr S Lack, Barrister, Auckland
Ms BCL Charmley, Crown Law, Wellington
WHICHMAN v R [2021] NZHC 3463 [15 December 2021]
[1] Mr George Whichman accepted a sentence indication and pleaded guilty on 3 September 2020 to one charge of aggravated robbery.1 Judge C M Ryan sentenced him to eight months and two weeks’ imprisonment the same day.2
[2] Mr Whichman appeals his conviction on the ground that a miscarriage of justice occurred because on the admitted facts he could not have been guilty of the offence of aggravated robbery.3
Summary of facts
[3] On 28 January 2020, the complainant received a text message from an unknown number which stated:
You owe my lil bro josh if payment hasn’t been made by and of night I will be coming to Morrie [Laing Ave] and trust me you don’t want that. Anything there will be tacking as payment. If ignored you will find out who I am.
[4] At about 1:20 pm on 2 February 2020, when the complainant was at his home address on Morrie Laing Avenue, Mount Roskill, Mr Whichman and his co-defendant, Mr Abdi, went to the complainant’s address and started banging loudly on the front door. Mr Abdi went to the complainant’s bedroom window. Mr Abdi started speaking to the complainant through the window as if he knew the complainant, saying “what’s up Abdul, long time no see”. The complainant did not recognise them and told them he did not know them.
[5] Mr Whichman stepped up to the window and pulled an Uzi style imitation firearm from his hoody front pocket and pointed it directly at the complainant’s face. Mr Whichman said “Did you go to fucking little homie’s house… Lynfield… Joshua?” Mr Whichman talked about seeing the complainant on CCTV footage and said “Bro don’t shoot around here again aye, or there will be some fucking real repercussions”.
[6] Mr Abdi demanded the complainant give him $20 for gas money. Fearing for his safety, the complainant gave Mr Abdi $20. Mr Abdi told the complainant to open
1 Crimes Act 1961, s 235(b); maximum penalty 14 years’ imprisonment.
2 R v Whichman [2020] NZDC 17871. Mr Whichman waived his right to a pre-sentence report.
3 Criminal Procedure Act 2011, s 232(2)(c). Mr Whichman’s notice of appeal only addressed his sentence but the respondent takes no issue with that.
the door because Mr Whichman needed to talk to him inside. The complainant refused to do so. Mr Whichman asked the complainant to give him $50. The complainant said he did not have the money. Mr Whichman and Mr Abdi left the scene.
[7] When subsequently interviewed by Police, Mr Whichman admitted that he threatened the complainant but said he had no intention to rob him.
Procedural history
[8] Mr Abdi pleaded guilty to aggravated robbery and was sentenced to six months’ imprisonment on 26 March 2020.4
[9] Mr Whichman pleaded not guilty. He filed an application for the aggravated robbery charge to be dismissed under s 147 of the Criminal Procedure Act 2011 (CPA). That application was due to be heard on 22 September 2020. Before that application was heard, however, he sought a sentence indication on 1 September 2020 (following his arrest and remand in custody on 18 August 2020).
Approach on appeal
[10] A conviction appeal must be allowed if a miscarriage of justice has occurred for any reason.5 A miscarriage of justice means any error, irregularity, or occurrence in, or in relation to, or affecting the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial or a trial that was a nullity.6 A guilty plea is included within the meaning of ‘trial’ for this purpose.
[11] It is only in exceptional circumstances that an appeal against conviction will be entertained following the entry of a guilty plea.7 Where the appellant fully appreciated the merits of his position, and made an informed decision to plead guilty, the conviction cannot be impugned.8 However, there are three broad categories where a miscarriage of justice may be found to have occurred following a guilty plea:9
4 Police v Abdi [2020] NZDC 8421.
5 Criminal Procedure Act 2011, s 232(2)(c).
6 Section 232(4).
7 R v Merrilees [2009] NZCA 59, at [4].
8 R v Le Page [2005] 2 NZLR 845 (CA), at [16].
9 At [17]-[19].
(a)where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge;
(b)where on the admitted facts, the appellant could not have been convicted of the offence; and
(c)where the guilty plea was induced by a ruling which embodied a wrong decision on a question of law.
Submissions
[12] Mr Whichman relies on the second situation identified above. His counsel on appeal, Mr Lack, submitted that it is clear on the admitted facts that Mr Whichman could not have been convicted of aggravated robbery. Mr Lack submitted the Crown was required to prove the following essential elements to convict Mr Whichman of aggravated robbery pursuant to s 235(b) of the Crimes Act 1961 (the Act):
(a)that Mr Abdi and Mr Whichman shared a common intention to take money from the complainant using their collective force;
(b)that it was Mr Abdi who took the $20;
(c)that Mr Abdi took the $20 dishonestly;
(d)that Mr Abdi took the $20 without claim of right; and
(e)that Mr Abdi took the $20 with the intention to permanently deprive the complainant of it.
[13] Mr Lack submitted that there was no evidence of any common intention between Mr Abdi and Mr Whichman to rob the complainant. A common intention can be proved either by words or conduct but mere presence at the robbery without active participation will not constitute an offence under s 235(b) of the Act.10
10 R v Feterika [2007] NZCA 526, at [32]-[34].
[14] Mr Lack submitted it cannot be inferred from Mr Whichman’s conduct that he had a common intention to rob the complainant. He submitted that Mr Whichman was acting in an intimidating manner due to a perceived slight to his friend and his purpose was to intimidate the complainant. Mr Lack submitted that while this was not a lawful purpose, it does not support a conviction of aggravated robbery.
[15] Mr Lack submitted that there were no overt demands for money made by Mr Whichman. While Mr Whichman did opportunistically ask for $50, this was after the asserted robbery of the $20 from the complainant. Therefore, Mr Lack submitted that the actus reus of the offence was complete before Mr Whichman made his request, a request which Mr Whichman did not pursue further once the complainant stated he had no money. Mr Lack submitted the Crown’s evidence at best establishes that Mr Whichman was present when Mr Abdi robbed the complainant of $20.
[16] Finally, Mr Lack submitted that this is one of those “rare cases” where it is appropriate for the Court to allow Mr Whichman’s appeal against conviction despite his guilty plea. He also submitted that no retrial should be ordered, but following the hearing obtained instructions to agree to substitution (under s 234 of the CPA) of a conviction for intimidation.11
[17] Ms Charmley, for the respondent, referred to Udy v Police and submitted that only in limited circumstances will a conviction appeal be allowed following a guilty plea where the appellant received competent legal advice.12 Ms Charmley also referred to R v Zhang where Hammond J stated “that it is incontrovertible that the entry of a plea of guilty admits the validity of the offence; and all the necessary elements of that offence.”13
[18] Ms Charmley submitted that on the summary of facts, which was accepted when Mr Whichman pleaded guilty, it can be established that Mr Whichman and Mr Abdi were part of a joint enterprise and shared a common intention to rob the
11 Summary Offences Act 1981, s 21(1)(a), maximum penalty 3 months’ imprisonment. Ms Charmley’s response memorandum dated 10 December 2021 submitted that conviction would not appropriately reflect the gravity of the offending and would be out of step with Mr Abdi’s conviction.
12 Udy v Police [1964] NZLR 235 (SC) at 238;
13 R v Zhang CA153/04, 13 July 2004, at [16].
complainant. Ms Charmley submitted it can be inferred that Mr Whichman sent the text message to the complainant on 28 January 2020. The text message alleged that the complainant owed money to “my lil bro Josh” and that if payment is not made, the text message sender will come to the complainant’s home and take anything there as payment. Ms Charmley submitted the inference that Mr Whichman sent the text message is supported by the facts that:
(a)Mr Whichman and Mr Abdi went to the complainant’s house only days after the text was sent;
(b)Mr Whichman was armed with an imitation firearm which he presented at the complainant; and
(c)when speaking to the complainant, Mr Whichman referenced “Joshua” to whom the complainant allegedly owed money.
[19] Ms Charmley submitted that if Mr Whichman sent the text message, then it can be inferred that he and Mr Abdi went to the complainant’s house with the intention to obtain property. She submitted that even if Mr Whichman did not send the text message, a common intention between Mr Whichman and Mr Abdi can be inferred from their conduct and how they worked in concert throughout the incident. Ms Charmley submitted that Mr Whichman was not merely present at the address when the robbery took place. She also submitted that it is implausible that Mr Whichman “did not really mean it” when he asked the complainant for $50 as he was holding an imitation gun at the time and acting in a threatening way.
[20] Ms Charmley submitted that the appeal should be dismissed as this is not a case where an element of aggravated robbery is not made out as a matter of law, rendering the charge unsustainable.
Analysis
[21] The starting point is that the entry of a plea of guilty admits the validity of the offence, and all the necessary elements of that offence.14 As indicated at [11] above, the relevant category where a miscarriage of justice may be found to have occurred following a guilty plea (with no issue raised as to the legal advice received) is where, on the admitted facts, the appellant could not have been convicted of the offence. The authorities cited within this category indicate that the relevant assessment is whether the appellant could not have been convicted, as a matter of law.15 That may include where as a matter of law the facts are insufficient to establish an essential ingredient of the offence.16 This assessment of whether the appellant could have been convicted of the offence is based on the admitted facts, not based on other evidence that may be available.17
[22] It is common ground that a summary of facts need not expressly state the elements of the offence provided they can reasonably be inferred from the facts alleged and that, where the summary of facts is admitted on a guilty plea, the relevant question is whether the elements of the offence can reasonably be inferred from the admitted facts. This question of law is whether the elements can reasonably be inferred, not whether they would surely have been inferred by the fact-finder.
[23] It is also common ground that Mr Whichman could only be guilty of aggravated robbery in respect of the $20 taken by Mr Abdi if they had a common intention to take money from the complainant; that is, each was complicit in the joint enterprise.18
[24] I accept the summary of facts does not explicitly state that Mr Whichman was complicit in Mr Abdi’s demand of $20 for gas money. But the admitted text message sent to the complainant in the days before the visit involved a threat in the context of money owing to a friend. While Mr Abdi’s subsequent demand for $20 was instead
14 R v Zhang CA153/04, 13 July 2004, at [16].
15 R v Mohammed CA415/96, 13 November 1996; McIntyre v R [2017] NZCA 579; and Rutherford v Canterbury Regional Council [2021] NZHC 1506.
16 R v Le Page [2005] 2 NZLR 845, at [18].
17 Ms Charmley accepted it might be different in exceptional circumstances such as if there were fresh evidence.
18 R v Feterika [2007] NZCA 526, at [32].
for gas money, the demand was made during their joint enterprise visiting the complainant and intimidating him. Moreover, Mr Whichman continued to participate in the joint enterprise following Mr Abdi’s demand for money while Mr Adbi took the money he had demanded, and then Mr Whichman also made his own demand. In these circumstances, it could reasonably be inferred that Mr Whichman and Mr Abdi had a common intention to rob the complainant.
[25] Thus, Mr Whichman could have been convicted of the offence of aggravated robbery under s 235(b) of the Act. No miscarriage of justice has occurred. This is not one of those rare circumstances where retraction of a guilty plea should be permitted.
Result
[26]The appeal is dismissed.
Gault J
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