Whichman v The Queen - [2021] NZHC 3463

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…

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.

Continue reading Whichman v The Queen

Details

AGLC: Whichman v The Queen [2021] NZHC 3463
Case: [2021] NZHC 3463
Decision Date: 15 December 2021

CaseChat Overview and Summary

George Whichman appeals against his conviction for aggravated robbery, arguing that a miscarriage of justice occurred as he could not have been guilty of the offence on the admitted facts. The appeal raises the issue of whether, on the admitted facts, Mr Whichman could have been convicted of the offence of aggravated robbery. The court held that, based on the admitted facts, it could reasonably be inferred that Mr Whichman and Mr Abdi had a common intention to rob the complainant. Therefore, the court found that Mr Whichman could have been convicted of the offence of aggravated robbery and dismissed the appeal.

The case involved Mr Whichman and Mr Abdi going to the complainant's house and intimidating him, with Mr Whichman threatening the complainant with an imitation firearm and Mr Abdi demanding $20 for gas money. Mr Whichman argues that on the admitted facts, he could not have been guilty of aggravated robbery because there was no evidence of a common intention to rob the complainant. The respondent contends that it can be inferred from their conduct that Mr Whichman and Mr Abdi had a common intention to obtain property from the complainant.

The court found that the admitted facts could reasonably support an inference that Mr Whichman and Mr Abdi had a common intention to rob the complainant, as they were part of a joint enterprise visiting the complainant and intimidating him. The court held that, based on the admitted facts, Mr Whichman could have been convicted of the offence of aggravated robbery. The court dismissed the appeal as it did not find a miscarriage of justice.

The final orders of the court were that the appeal is dismissed.

Orders