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White v R

White v R

Case [2017] NZCA 322 27 July 2017

Appeal

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA413/2016
[2017] NZCA 322

BETWEEN	DEON MICHAEL WHITE Appellant
AND	THE QUEEN Respondent

CA444/2016
BETWEEN	TANIORA WAYNE ROPIHA Appellant
AND	THE QUEEN Respondent

CA481/2016
BETWEEN	CARL WILLIAM PATERSON Appellant
AND	THE QUEEN Respondent

Hearing:	1 May 2017
Court:	French, Mallon and Wylie JJ
Counsel:	A J D Bamford for Appellants White and Paterson S J Zindel for Appellant Ropiha I R Murray and J A Eng for Respondent
Judgment:	27 July 2017 at 10.30 am

JUDGMENT OF THE COURT

AMr Paterson’s application to extend the time for filing his conviction appeal is granted.
BMr Ropiha’s application to extend the time for filing his conviction and sentence appeal is granted.
CMr White and Mr Paterson’s applications to extend the time for filing their sentence appeals are declined.
DMr White, Mr Paterson and Mr Ropiha’s appeals against conviction are dismissed.
EMr Ropiha’s appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)

Introduction

The three appellants (Messrs White, Paterson and Ropiha), together with a fourth offender (Mr Peck), were convicted following a District Court jury trial before Judge Zohrab of a number of offences arising out of a home invasion.[1] The home invasion was of a “tinnie” house occupied by a number of people, and its purpose was to obtain money using threats and violence.
[1]One charge of aggravated burglary under ss 232(1)(a) and 66 of the Crimes Act 1961 (maximum penalty 14 years’ imprisonment); one charge of assault under ss 196 and 66 (maximum penalty one year’s imprisonment); one charge of threatening to do grievous bodily harm under ss 306 and 66 (maximum penalty seven years’ imprisonment); four charges of kidnapping under ss 209 and 66 (maximum penalty 14 years’ imprisonment); and one charge of aggravated robbery under ss 235(b) and 66 (maximum penalty 14 years’ imprisonment).
The appellants appeal against their convictions on a number of grounds. These grounds concern the Judge’s approach to two hostile witnesses, the prospect that a perception of witness intimidation may have influenced the jury, the contention that a mistrial should have been ordered, the Judge’s directions on party liability and the Judge’s directions on claim of right.
The four offenders were sentenced to the following terms of imprisonment: six years and 11 months (Mr White), six years and two months (Mr Paterson), six years and four months (Mr Ropiha), and six years and seven months (Mr Peck).[2] Mr Ropiha appeals his sentence. He contends his sentence was manifestly excessive because the starting point (six years and nine months, which was adopted for all the offenders) was too high and the discount afforded for time spent on electronically monitored bail was insufficient.
[2]R v White [2016] NZDC 13623 [Sentencing notes].
Mr Paterson’s conviction appeal and Mr Ropiha’s conviction and sentence appeal were filed late. They have explained why this happened. We accept an extension is appropriate.
Mr White and Mr Paterson belatedly sought to appeal their sentences having reviewed Mr Ropiha’s sentence…

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 White v R

Details

AGLC: White v The Queen [2017] NZCA 322
Case: [2017] NZCA 322
Decision Date: 27 July 2017

CaseChat Overview and Summary

The appellants, Mr Deon Michael White, Mr Taniora Wayne Ropiha and Mr Carl William Paterson, were convicted following a District Court jury trial for their involvement in a home invasion. The court was required to determine whether the Judge erred in his directions to the jury regarding the admissibility of two hostile witnesses' statements, the reliability of those statements, and the potential witness intimidation. The court was also required to determine whether the Judge's directions on party liability and the claim of right were adequate. Lastly, the court was required to determine whether Mr Ropiha's sentence was manifestly excessive.

The Court found that the Judge approached the matter correctly and fairly to the defence. The Judge's directions to the jury regarding the hostile witnesses' statements were adequate and the statements were not so unreliable that they should not have gone to the jury. The Court also found that there was no evidence to suggest that the appellants intimidated the witnesses. The Court found that the Judge's directions on party liability and the claim of right were adequate. Lastly, the Court found that the Judge's sentence for Mr Ropiha was not manifestly excessive.

Paterson's application to extend the time for filing his conviction appeal was granted, and Ropiha's application to extend the time for filing his conviction and sentence appeal was granted. White and Paterson's applications to extend the time for filing their sentence appeals were declined. The appeals against conviction were dismissed, and Ropiha's appeal against sentence was dismissed.

Orders