| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA675/2019 [2020] NZCA 241 |
| BETWEEN | MITCHELL HADLEY WHITTAKER |
| AND | THE QUEEN |
| CA30/2020 | ||
| BETWEEN | JAMES ANDERSON THOMSON | |
| AND | THE QUEEN | |
| CA9/2020 | ||
| BETWEEN | CALEB EDWIN WHITTAKER | |
| AND | THE QUEEN | |
| Hearing: | 14 May 2020 |
Court: | Kós P, Venning and Dobson JJ |
Counsel: | K R Pascoe for Appellant M Whittaker |
Judgment: | 17 June 2020 at 10 am |
JUDGMENT OF THE COURT
AThe appeal of Mitchell Whittaker is allowed. His sentence of seven years and two months’ imprisonment is quashed and substituted with a sentence of six years and nine months’ imprisonment.
BThe appeal of James Thomson is dismissed.
CThe appeal of Caleb Whittaker is dismissed.
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REASONS OF THE COURT
(Given by Dobson J)
These appeals are brought by the three appellants against the sentences imposed on them by Judge Barkle in the District Court at New Plymouth on 13 December 2019.[1]
Background and circumstances of offending
[1]R v Thomson [2019] NZDC 25366 [Sentencing notes].
James Thomson (Mr Thomson) had previously been a member of the Highway 61 gang and had been excluded from the gang after differences with other members. He did not accept his exclusion. As a friend of Mr Thomson’s, Mitchell Whittaker became involved in negotiations with Highway 61 gang members to resolve aspects of Mr Thomson’s exclusion. Ten days before the confrontation that subsequently took place, text communications between Mitchell Whittaker and his half-brother, Caleb Whittaker, alluded to the prospect of a physical confrontation with members of the gang. On the day of the confrontation, Mr Thomson and Mitchell Whittaker were communicating with each other to arrange that they meet up, armed with a shotgun in a guitar case.
At approximately 6.00 pm on 5 December 2017, Mr Thomson, Mitchell and Caleb Whittaker and others were in two cars that crashed through a locked gate at a residential property on the outskirts of Waitara. The property was being used as a gang pad for members of the Highway 61 gang. Both cars then rammed into the external metal walls of the building on the property. The occupants of the cars got out, and shots were fired at the building from a shotgun. Shots were also fired from the gate of the property from a .22 rifle, and police later found four spent .22 cartridges near that gate.
Having fired numerous shots at and around the building, the appellants and those accompanying them fled the scene in one of the two cars that had crashed through the gate. A third vehicle had remained outside the gate with others in it, and was used to help carry some of those present away from the scene.
All three appellants were initially charged as parties to the discharge of firearms with intent to do grievous bodily harm, and to aggravated burglary.[2] The prosecution…
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- AGLC
- Whittaker v The Queen [2020] NZCA 241
- Case
- [2020] NZCA 241
- Decision Date
CaseChat Overview and Summary
The offending in question involved eight to ten participants travelling to a residential property in Waitara, crashing through a locked gate, ramming cars into the walls of the building, and firing shots at the building from a shotgun and a.22 rifle. The property was being used as a gang pad for members of the Highway 61 gang. The appellants and those accompanying them fled the scene in one of the two cars that had crashed through the gate. The prosecution could not prove beyond reasonable doubt which of the offenders fired the shots. The sentences imposed by the Judge were: Mitchell Whittaker — seven years and two months’ imprisonment; James Thomson (with a 20 per cent discount for guilty plea) — five years and three months’ imprisonment; Caleb Whittaker (with a 15 per cent discount for guilty plea) — two years and six months’ imprisonment.
The Court found that the starting point for aggravated burglary was appropriate, but that the discount allowed for cultural factors in the s 27 cultural report about Mitchell Whittaker was inadequate. The Court held that a 9.5 per cent deduction for those factors would have been appropriate, amounting to a nine-month deduction from the starting point. The Court allowed the appeal of Mitchell Whittaker and substituted his sentence of seven years and two months’ imprisonment with a sentence of six years and nine months’ imprisonment. The appeals of James Thomson and Caleb Whittaker were dismissed.
Orders
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