Legal Research
Cases
Whittaker v R

Whittaker v R

Case [2020] NZCA 241 17 June 2020

Type to search within this case.

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA675/2019
[2020] NZCA 241

BETWEEN	MITCHELL HADLEY WHITTAKER Appellant
AND	THE QUEEN Respondent

CA30/2020
BETWEEN	JAMES ANDERSON THOMSON Appellant
AND	THE QUEEN Respondent

CA9/2020
BETWEEN	CALEB EDWIN WHITTAKER Appellant
AND	THE QUEEN Respondent

Hearing:	14 May 2020
Court:	Kós P, Venning and Dobson JJ
Counsel:	K R Pascoe for Appellant M Whittaker P M Keegan for Appellant J Thomson J C Hannam for Appellant C Whittaker M R L Davie for Respondent
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.

____________________________________________________________________

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…

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 Whittaker v R

Details

AGLC: Whittaker v The Queen [2020] NZCA 241
Case: [2020] NZCA 241
Decision Date: 17 June 2020

CaseChat Overview and Summary

This appeal concerns the sentences imposed by Judge Barkle in the District Court at New Plymouth on 13 December 2019 on the three appellants, Mitchell Whittaker, James Thomson and Caleb Whittaker. The appellants challenge the sentences imposed on them for aggravated burglary and the discharge of a firearm with intent to injure, arguing that the sentences imposed were manifestly excessive. The appeal of Mitchell Whittaker was allowed in part and the sentence imposed on him was substituted with a sentence of six years and nine months’ imprisonment. The appeals of James Thomson and Caleb Whittaker were dismissed.

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