Whichman v The the Queen
[2022] NZHC 1223
•30 May 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-102
[2022] NZHC 1223
BETWEEN GEORGE WHICHMAN
Appellant
AND
THE QUEEN
Respondent
Hearing: 27 May 2022 Appearances:
Appellant in person
H Brown for Respondent
Judgment:
30 May 2022
REASONS JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Monday, 30 May 2022 at 12:30 pm.
Registrar/Deputy Registrar
Solicitors: Meredith Connell (Office of the Crown Solicitor), Auckland
Copy to: Appellant
WHICHMAN v R [2022] NZHC 1223 [30 May 2022]
Introduction
[1] Mr Whichman appeals against his sentence of 11 months’ home detention imposed by Judge M Pecotic in the Auckland District Court on 23 March 2022.1 He had pleaded guilty to the following offending:
(a)burglary;2
(b)assault with a weapon;3
(c)strangulation;4 and
(d)injuring with intent.5
[2] He appeals on the ground that the sentence is manifestly excessive. In summary, he submits that the Judge gave inadequate discounts for his personal mitigating circumstances and failed to recognise the hardship caused to himself and his partner as a result of the sentence.
The offending
[3] Mr Whichman and the victim are partners. At the time of the offending, they lived together in an apartment at an address in Waterview.
[4] At 11:30 am on 17 June 2021, Police were called to a family harm-related incident at the address. A Police Safety Order was served on Mr Whichman, which was in force for 48 hours.
[5] At about 3:30 am on 18 June 2021, Mr Whichman returned to the address. He entered the apartment by climbing onto the second storey balcony and then opening a sliding door.
1 R v Whichman [2022] NZDC 5008.
2 Crimes Act 1961, s 231(1)(a). Maximum penalty 10 years’ imprisonment.
3 Crimes At 1961, s 202C. Maximum penalty five years’ imprisonment.
4 Crimes Act 1961, s 189A(b). Maximum penalty seven years’ imprisonment.
5 Crimes Act 1961, s 188(2). Maximum penalty seven years’ imprisonment.
[6] Once inside he punched his partner with a closed fist multiple times in her head and face. He picked up a chair and threw it at her. The chair struck her in the back as she was trying to get away from him.
[7] Mr Whichman then held his partner down in the bedroom, putting both his hands around her neck. He applied pressure to her neck so that she was unable to breathe. This caused her to lose consciousness for a short period.
[8] When she regained consciousness, she tried to escape into the bathroom. Mr Whichman followed her and struck her once more in the head. She again lost consciousness for a brief time before coming to and vomiting on the bathroom floor. The assault continued for approximately 15 minutes before she was able to leave the apartment. Mr Whichman chased her onto the street. She managed to wave down a passing Police patrol. He was located metres away from her and arrested.
[9] Mr Whichman’s partner was hospitalised as a result of the attack. She suffered open lacerations to her face and the back of her head, swelling to her jaw and eye area, swelling and bruising to her nose and lips, a fractured foot and a swollen windpipe.
[10] In explanation, Mr Whichman admitted to punching her but said he only did so four times.
District Court decision
[11] Judge Pecotic outlined the charges against Mr Whichman and summarised the facts. She turned to the victim impact statement, in which Mr Whichman’s partner said that she was impacted in many ways by what Mr Whichman did to her and she was “still healing”. She acknowledged Mr Whichman’s apologies to her and expressed her support for his engagement in programmes to address his anger issues and addiction. She had also written a letter of support and attended a restorative justice conference, leading the Judge to describe her as “a strong supporter” of Mr Whichman. The Judge stated that both parties clearly wanted to resume the relationship and key to that was the whānau safety plan agreed to at the conference. She noted that part of the agreement was for Mr Whichman to undertake rehabilitation with the Grace
Foundation, and that the Grace Foundation reported that there would be a bed available for him.
[12] The Judge referred to the letter Mr Whichman had written to the Court expressing his motivation to rehabilitate. She recognised that Covid-19 restrictions meant that he had been unable to participate in any programmes while in prison. She confirmed that she had received a letter from Moana House in Dunedin and that Mr Whichman could only attend their programme if he were sentenced to a sentence such as community detention.
[13] Next, the Judge turned to the “substantial and very detailed” cultural report. In it, Mr Whichman had described an unhappy childhood in which he witnessed violence between his parents as well as experienced violence from them. He said that at 14 years old he dropped out of school and began drinking. He suffered abuse while under the care of Oranga Tamariki. At 18 years old, Mr Whichman was sentenced to prison. He used methamphetamine from the ages of 19 to 23. He was a member of the Killer Beez gang for five years before leaving in 2016. He acknowledged that he had spent over 12 years in custody as part of a “continual treadmill of sentences”, and that he was now prepared to turn his life around. The Judge stated that it was positive to see that Mr Whichman wanted to break the cycle.
[14] In relation to the offending, the Judge noted Mr Whichman’s account — that he had smashed his partner’s phone after they had had an argument, and that he had drank a bottle of vodka and had no memory of assaulting her. She noted that he had paid his partner $10,000 by way of remorse. She considered it significant that he had given the bulk of the compensation he himself had received for the trauma he suffered under Oranga Tamariki to his partner to recognise her trauma.
[15] The Judge noted Mr Whichman’s extensive criminal history involving numerous Youth Court notations and 21 violence convictions. She confirmed that the responsibility lay with him to stop offending.
[16] In terms of the starting point for the offending, the Judge took the strangulation charge as the lead offence. She identified the aggravating features as: the fact actual
violence was employed; the multiple punches to the victim’s head and face; the fact a chair was thrown at the victim; the domestic context of the assault; the duration of the assault; the serious injuries sustained by the victim; the two instances of the victim falling unconscious; and the fact the offending occurred in breach of a Police Safety Order. The Judge considered that there were no mitigating features. She set a starting point on the strangulation charge of three years’ imprisonment,6 uplifted by nine months to take into account the remaining charges and increased that by five months for Mr Whichman’s prior convictions. This brought the overall starting point to four years and two months’ imprisonment.
[17] The Judge then applied several discounts for personal mitigating factors. These were a guilty plea discount of 25 per cent, 17 per cent for matters in the cultural report and rehabilitation completed so far, and 10 per cent for remorse and the reparation made to the victim. This reduced the sentence to two years’ imprisonment. She converted this to 11 months’ home detention (with a discount of one month from 12 months’ home detention to recognise the five months Mr Whichman spent in custody), with a condition that he complete rehabilitation with the Grace Foundation.
Approach on appeal
[18] To succeed on an appeal against sentence, the appellant must satisfy the appeal Court that there has been an error in the imposition of the sentence and that a different sentence should be imposed.7 The Court will not, ordinarily, intervene when the sentence is within the range that can be properly justified by accepted sentencing principles. The Court will only intervene and substitute its own view if the sentence is manifestly excessive or wrong in principle.8 The appeal Court's focus is on the final sentence imposed rather than its component parts or how the ultimate sentence was reached.9
6 Referring to T v New Zealand Police [2019] NZHC 3375, [2020] 2 NZLR 270; and Tuwhangai v Police [2020] NZHC 3428.
7 Criminal Procedure Act 2011, s 250(2).
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
9 Ripia v R [2011] NZCA 101 at [15].
Discussion
Submissions
[19] Mr Whichman is self-represented. He submits that the sentence is manifestly excessive, and an end sentence of five months’ community detention is appropriate. He argues that the Judge gave insufficient discounts. He submits that the appropriate reductions are 10 per cent for time spent on EM bail, 15 per cent for matters in the cultural report, 25 per cent for his guilty pleas, 12 per cent for participation in restorative justice, and 15 per cent for the $10,000 reparation payment. Mr Whichman argues that the Judge failed to acknowledge the hardship his sentence has caused to his partner, as he is unable to assist her financially or with household chores. He states that his partner supports him living with her and helping around the house, and especially with the care of their dogs. Mr Whichman submits that his sentence is too lengthy, and the conditions attached are excessive, and that they only act as a barrier to him advancing in life. He says that he appreciates being at the Grace Foundation, but he wants to have time to spend with family, save money and undertake his business endeavours.
[20] Ms Brown, for the respondent, contends that the starting point adopted by the Judge was within range,10 as was the uplift for the remaining charges. She argues that the uplift applied for Mr Whichman’s previous convictions was also appropriate. In terms of discounts, she submits that none is required for Mr Whichman’s four months on EM bail. In relation to time on remand, however, she submits that a credit of five months was necessary once the Judge converted the sentence into one of home detention (equivalent to the five months spent in custody). She submits that the Judge properly acknowledged the cultural report and the rehabilitation Mr Whichman had completed and the 17 per cent discount given for those matters was sufficient. As for restorative justice and emotional reparation, she argues that these were adequately recognised in the Judge’s 10 per cent remorse discount. Finally, she submits that notwithstanding Mr Whichman’s submissions about his and his partner’s personal circumstances, home detention was the least restrictive outcome in this case.
10 With reference to the aggravating factors of the lead offence and comparable authority: Ackland v Police [2019] NZHC 312, (2019) 29 CRNZ 179; T v New Zealand Police [2019] NZHC 3375, [2020] 2 NZLR 270; and Tuwhangai v Police [2020] NZHC 3428.
Analysis
[21] I first turn to the discounts given by the Judge. In terms of Mr Whichman’s guilty pleas, there can be no issue with the reduction of 25 per cent. Mr Whichman entered his pleas early and as such he is entitled to the maximum discount available for guilty pleas.11
[22] Next is the 17 per cent discount given for the considerations arising from the cultural report as well as Mr Whichman’s rehabilitative efforts. It is well established that an offender’s personal background of trauma or deprivation can warrant a discount where there is a causal nexus with the offending. This does not require the Court to be satisfied that those matters are a proximate cause of the offending.12 If there is persuasive evidence showing a causal nexus, the Court needs to balance this with the purpose and principles of sentencing.13
[23] The Judge highlighted Mr Whichman’s troubled childhood, including his experiences of violence at home and poverty growing up. She stated that “negative role models” in his life had shaped how Mr Whichman behaved toward his partners. She further acknowledged the relationship between the trauma he suffered under Oranga Tamariki and his becoming entrenched in the criminal justice system as a teenager. She called the report “sad reading” and rightly concluded that there was a connection between Mr Whichman’s background and his cycle of offending, which culminated in the present offending against his partner. She considered that Mr Whichman’s willingness to address his issues was encouraging and a combined discount was appropriate to take into account both his background and his four months of participation in the Pūwhakamua Programme in Rotorua.
[24] In my view, the Judge carefully and thoroughly considered the cultural report and the amount of discount she gave was appropriate. Where factors such as poverty and trauma contribute causatively to the offending by impairing choice and diminishing an offender’s culpability,14 Courts generally award discounts of between
11 Hessell v R [2010] NZSC 135.
12 Carr v R [2020] NZCA 357 at [64].
13 See Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [38]-[39].
14 See Zhang v R [2019] NZCA 507.
10 and 30 per cent.15 Weighing the matters in the report against the purposes and principles of sentencing in this case, 17 per cent was sufficient.
[25] Mr Whichman submits that a higher discount was necessary for his engagement with restorative justice and reparation to the victim. The Judge mentioned the restorative justice conference several times and how it reflected Mr Whichman’s regret at his actions and desire to resume a relationship with his partner. She also recorded that she was very impressed with his generous payment to his partner.
[26] Ms Brown submits that these matters are appropriately captured by a discount for remorse, which the Judge said was apparent from all of the documents before her. Courts typically give discounts of up to around eight per cent where the offender has demonstrated genuine remorse for their actions.16 I consider that a discount of 15 per cent is justified. This is to recognise Mr Whichman’s successful participation in restorative justice and the amount of reparation given to his partner — out of compensation he had himself received — in addition to his clear remorse and motivation to rehabilitate.
[27] Mr Whichman further argues that his sentence should have been reduced due to the time he spent on EM bail. Courts commonly give discounts equivalent to up to half of the time spent on EM bail.17 That said, such discounts are not mandatory. I agree with Ms Brown that none is required in this case given that Mr Whichman had to exit the Pūwhakamua Programme for misconduct.18 Insofar as there should be some recognition for his participation in the programme up until that point, this has already been included in the 17 per cent cultural report and rehabilitation discount.
[28] However, as Ms Brown accepts, Mr Whichman’s sentence should have been reduced by more than one month for the time he spent in custody. While time spent on remand is automatically factored in where an offender is sentenced to
15 See for example Paul v Police [2015] NZHC 2583 at [83]; Green v Police [2019] NZHC 2565; Waho v R [2020] NZCA 526; Poi v R [2020] NZCA 312; Minogue v R [2020] NZCA 515; and Kreegher v R [2021] NZCA 22.
16 See for example McArthur v R [2013] NZCA 600 at [13]–[14]; Rowles v R [2016] NZCA 208 at [18]; Watene v R [2014] NZCA 381 at [18]; and Poi v R [2015] NZCA 300 at [7].
17 Hall v R [2020] NZCA 183 at [37].
18 As referred to by Judge Spear in his notes on Mr Whichman’s EM bail application
imprisonment, a sentencing Judge must manually make a reduction for this time when imposing a sentence of home detention.19 Normally, this is the actual time the offender has spent in custody.20 It follows that Mr Whichman’s sentence should be reduced by a further four months (on top of the one month’s discount afforded by the Judge) to reflect the five months he remained in custody.
Conclusion
[29] Starting with the overall starting point of four years and two months or 50 months’ imprisonment, and applying discounts of 25 per cent for his guilty pleas, 17 pEr cent for factors set out in the cultural report and efforts at rehabilitation and 15 per cent for a successful restorative justice outcome, remorse and payment of
$10,000 to the victim (up from 10 per cent granted by the sentencing Judge), the initial end sentence is one of 21 and a half months’ imprisonment. This is then converted to a 10 months and three weeks sentence of home detention from which five months is to be deducted for time spent in custody (up from one month granted by the sentencing Judge) to reach a final sentence of five months and three weeks’ home detention.
[30] While I recognise the difficulties Mr Whichman and his partner may face as a consequence, I consider that the purposes and principles of sentencing are in favour of home detention as opposed to community detention. Denunciation, deterrence, rehabilitation, and acknowledgement of harm are particularly relevant in this case. The offending against his partner was serious. It was committed while Mr Whichman was subject to a Police Safety Order and resulted in his partner being hospitalised. It is necessary for Mr Whichman to address the drivers of his offending, and he should take advantage of the opportunity to do so with the Grace Foundation so that he can move forward with his life as he is clearly eager to do.
19 See Sentencing Act 2002, s 80X(1) and compare s 82; Longman v Police [2017] NZHC 2928 at [10].
20 Gotty v R [2020] NZHC 2035 at [18]; Longman v Police [2017] NZHC 2928 at [19]; Parkinson v
Police [2019] NZHC 1710.
Result
[31] The appeal is allowed. The sentence of 11 months’ home detention on all four charges is quashed and replaced with a sentence of five months and three weeks’ home detention on all four charges.
Woolford J
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