Whittaker v R
[2020] NZCA 241
•17 June 2020
| 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.
____________________________________________________________________
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 case did not identify which of those charged had used the firearms at the scene. The prosecution took the view that it could not prove beyond reasonable doubt which of the offenders fired the shots.
[2]Crimes Act 1961, ss 198(1) and 232(1)(a).
Mr Thomson pleaded guilty in June 2019. The other two appellants and a fourth participant, Mr Moke, went to trial. On the third day of trial, an agreement was reached resulting in the aggravated burglary charge against Caleb Whittaker being withdrawn and he pleaded guilty to a single, reduced, charge under s 198(2) of the Crimes Act 1961 of being a party to the discharge of a firearm with intent to injure.[3] At the conclusion of the trial, Mitchell Whittaker was found guilty on both of the charges he faced. Mr Moke also pleaded guilty on the third day of trial to one charge of discharging a firearm with intent, but he has not appealed the sentence imposed on him.
[3]The form of that charge had been reduced some months before trial.
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 three appellants bring their appeals on the ground that the sentences imposed were manifestly excessive.
Sentencing analysis
The Judge acknowledged the absence of a guideline judgment on sentencing for aggravated burglary and looked to this Court’s decision in R v Mako acknowledging that that addresses sentencing for aggravated robbery and the need to undertake an overall assessment of the culpability of the offending.[4]
[4]Sentencing notes, above n 1, at [20], referring to R v Mako [2000] 2 NZLR 170 (CA).
The Judge identified the number of participants in the offending as a first aggravating factor. It involved eight to 10 participants travelling to the scene in three vehicles. He found there to have been a good degree of planning, and a measure of pre-meditation, referring to text messages that had been produced. Arrangements would have been necessary to have three vehicles and the firearms available.[5]
[5]Sentencing notes, above n 1, at [22].
The Judge attributed to Mr Thomson and to Mitchell Whittaker knowledge of the property and the routines of people likely to be there. He considered that the time of 6.00 pm chosen for the confrontation meant it was almost inevitable that the house would be occupied.[6] The use of weapons was an aggravating factor, the Judge noting the ESR analysis which showed at least three shotgun rounds had been fired into the exterior of the building and at least two into the interior. One of the rounds discharged travelled in the direction of the adjoining pony club where activities were taking place. The Judge considered that it was only extreme good fortune that the discharge of the firearms had not resulted in any physical injuries.
[6]At [23].
The Judge elected to take the use of firearms into account in ranking the seriousness of the aggravated burglary, rather than uplifting the starting point to reflect the second charge on which Mr Thomson and Mitchell Whittaker were being sentenced.[7]
[7]At [24].
The Judge treated the offending as gang related because the attack was on a gang pad and it arose out of tensions between Mr Thomson and the gang of which he had previously been a member.[8]
[8]At [24].
After ranking the relative seriousness of the offending, as the Judge perceived it when compared with cases that had been cited to him, he adopted the starting point on the aggravated burglary of seven years and six months’ imprisonment for each of Mr Thomson and Mitchell Whittaker.[9]
[9]At [25]–[27].
In terms of personal aggravating and mitigating factors, the Judge uplifted Mr Thomson’s starting point by three months on account of relevant previous convictions and the fact that he was serving a sentence of community detention at the time.[10] He then allowed a discount of 14 months for time spent on restrictive electronically monitored bail and acceptance of responsibility for his offending, plus a degree of remorse and a willingness to address the factors that had contributed to the offending.[11] The Judge then allowed a further 20 per cent discount (16 months) for Mr Thomson’s guilty pleas, to arrive at the end sentence of five years and three months’ imprisonment.
[10]At [33].
[11]At [34].
In considering factors personal to Mitchell Whittaker, the Judge dismissed the need for any uplift for previous convictions, observing that those of a more serious nature were somewhat dated.[12] The Judge acknowledged a cultural report about Mitchell Whittaker, prepared under s 27 of the Sentencing Act 2002, which referred to drug and alcohol misuse and an upbringing of impaired well-being and diminished life choices.[13] He considered there was no identified link between the personal circumstances described and the offending. That limited the relevance of s 27 considerations which, on the Judge’s analysis, warranted a discount of four months, resulting in the end sentence for Mitchell Whittaker of seven years and two months’ imprisonment.
[12]At [36]
[13]At [37]–[38].
On the charge of discharging a firearm with intent to injure, the Judge assessed the starting point for Caleb Whittaker and Mr Moke by acknowledging the presence of the same aggravating features he had listed on the aggravated burglary assessment.[14] Again, the Judge ranked the seriousness of Caleb Whittaker’s offending against decisions that had been cited to him as comparators, and settled on a starting point of three years and six months’ imprisonment.[15] The Judge treated Caleb Whittaker as more distanced from the gang aspects of the offending than the other two and his lesser role was reflected in the fact that he was only facing one charge.
[14]At [29].
[15]At [30]–[31].
As to the circumstances personal to Caleb Whittaker, the Judge similarly dismissed the need for any uplift on account of previous convictions. The weight to be given to the s 27 cultural report prepared in his case was similarly seen as limited because it did not make out a distinct linkage between the deprived circumstances of his upbringing and the current offending. The same discount of four months as afforded his half-brother was allowed for Caleb Whittaker to reflect the content of the s 27 report.[16] Thereafter, a further discount of two months was allowed for acknowledgement of remorse and positive steps taken since his plea, leading to a sentence of three years’ imprisonment. From that, a 15 per cent discount was allowed for the late guilty plea entered on the third day of his trial, resulting in an end sentence of two years and six months’ imprisonment.
Grounds of appeal
Mitchell Whittaker
[16]At [39]–[40].
On Mitchell Whittaker’s behalf, Ms Pascoe submitted that:
· the starting point adopted for the aggravated burglary was too high;
· the final sentence failed to have regard to the parity reasonably required with sentences imposed on his co-offender, Caleb Whittaker;
· the Judge gave an inadequate discount for personal mitigating factors;
· the Judge had wrongly ranked the relative seriousness of this offending when compared with the facts in other cases cited to and by him; and
· a greater discount was required to recognise the material extent of inter‑generational cultural disconnect revealed in the s 27 cultural report.
Ms Pascoe adopted the submissions that were to be made by Mr Keegan on behalf of Mr Thomson as to the stark lack of parity in the very different end sentences imposed on those two offenders, when compared with Caleb Whittaker.
Mr Thomson
The major ground of Mr Thomson’s appeal, and that which was focused on by Mr Keegan in oral submissions, was what he characterised as the unacceptable extent of disparity between the sentences finally imposed on Mr Thomson and Mitchell Whittaker, when compared with the end sentence for Caleb Whittaker.
On the basis of this Court’s decision in R v Lawson,[17] Mr Keegan submitted that something had gone wrong in the sentencing process, creating an injustice. The price to be paid for the Crown’s error in withdrawing the aggravated burglary charge against Caleb Whittaker should be reflected in reductions in the sentences for the other two appellants to restore a level of parity that would provide assurance to fully-informed reasonable observers that justice had been done.
[17]R v Lawson [1982] 2 NZLR 219 (CA).
Mr Keegan made similar criticisms of the starting point to those made by Ms Pascoe. Arguably, the Judge rated the offending as more serious than was justified.
Caleb Whittaker
Perhaps unsurprisingly, on Caleb Whittaker’s behalf Mr Hannam did not challenge the starting point of three years and six months’ imprisonment. Instead, the end sentence was challenged as manifestly excessive because an insufficient reduction was given for Caleb Whittaker’s guilty plea, once a plea became possible to the reduced charge. Also, arguably insufficient credit was given for the cultural deprivation in Caleb Whittaker’s upbringing, as described in the s 27 cultural report about him.
Discussion
Starting point for aggravated burglary
Ms Pascoe took the lead in challenging the starting point set by the Judge for Mitchell Whittaker’s and Mr Thomson’s convictions for aggravated burglary. Ms Pascoe submitted that the Judge failed to stand back and make an overall assessment of the relative seriousness of this offending. She submitted that too much had been made of the number of participants involved in the confrontation, when it was only their presence at the site that constituted any intimidation by the majority of them, without any more aggressive actions. She submitted that the complainants were indifferent to the precise number of Mitchell Whittaker’s associates confronting them at the property, being unaware of the third car and its occupants which stayed outside the gate to the property. Ms Pascoe also argued that the offending should have been seen as less serious when only one of the firearms was discharged within the property.
Ms Pascoe submitted that the Judge was wrong to attribute to Mitchell Whittaker any detailed awareness of the layout of the gang pad or the domestic routine of those likely to be there. Certainly, that could be attributed to Mr Thomson but she submitted it was wrongly attributed to Mitchell Whittaker.
Ms Pascoe submitted that the Judge erred in treating this aggravated burglary as offending at a similar level to the aggravated robbery in Tiori v R.[18] In that appeal, this Court adopted a starting point of eight years’ imprisonment where there were aggravating features of pre-meditation, multiple offenders, weapons used and a home invasion with a risk of harm.[19]
[18]Tiori v R [2011] NZCA 355.
[19]At [22].
Ms Pascoe also submitted that the Judge had misapplied the observation of this Court in Mako. In the context of aggravated robberies, the Court had suggested starting points of seven years or more for forced entry into premises at night by a number of offenders seeking money, drugs or other property and including violence against victims where weapons are brandished, even if no serious injuries are inflicted.[20]
[20]R v Mako, above n 4, at [58].
Mr Keegan’s written submissions on Mr Thomson’s behalf raised similar concerns to those argued for Mitchell Whittaker that the Judge had ranked the offending more seriously than was justified. It was the loss of Mr Thomson’s gang patch that precipitated the tension, but that ought not to have carried material weight in attributing greater culpability to him for the offending. Mr Keegan also questioned the cases referred to as comparators by the Judge, submitting that other cases which he had cited in his sentencing submissions ought to have been taken into account.
The features of this offending included the use of cars to force entry to the property, intimidation and force by way of the presentation of weapons, which were discharged in circumstances that could easily have caused serious injury. The Judge was entitled to take into account that it was only by great good fortune that no one was seriously injured. One of the rounds from the .22 rifle passed through the property and towards the Waitara Pony Club premises adjoining it, where activities were taking place.
The level of intimidation was increased, or at least reinforced, by the number of people involved, which either made or supported a serious intimidatory presence. It was gang-related in the sense that it arose out of intra-gang ructions and occurred at an identified gang property.
In ranking the relative seriousness of the offending, we do not place any significant weight on Mr Thomson and Mitchell Whittaker being familiar with the layout of the property and the activities likely to be undertaken there at 6.00 pm. It may have added marginally to the level of fear and intimidation caused because the confrontation occurred in the early evening. However, the essence of the intimidatory impact would have been present whenever it occurred and was unlikely to be heightened by the appellants’ familiarity with domestic routines likely to be occurring at the property.
This is offending of a type that could not occur without a certain degree of planning. The Judge was entitled to rank it as involving a moderate level of pre‑meditation and planning given the text messages between the participants that preceded it and the organisation involved in gathering weapons, cars and multiple participants. The features we have considered comfortably place the offending a little above the half way point of available sentences where the maximum is 14 years’ imprisonment.
In urging a lower starting point, Ms Pascoe cited the High Court decision in Jones v R in which the starting point adopted in the District Court of six years and six months’ imprisonment for an aggravated burglary with somewhat similar features was not altered on appeal to the High Court.[21] However, as Mr Davie pointed out, the starting point was not in issue and not commented on in the appeal judgment. It is not persuasive in making out a lower starting point for this offending.
[21]Jones v R [2019] NZHC 1816.
Mr Davie submitted for the respondent that the starting point here of seven and a half years was appropriately six months less than that upheld by this Court in Tiori. The features are somewhat different. In Tiori, four offenders invaded a tinny house armed with a slug gun, a hammer and a crowbar. They wore balaclavas and robbed victims of money and drugs. Young children were present at the address and one offender hit an adult victim in the head with the slug gun.[22] The relative seriousness of those features are almost matched by those attributed to Mitchell Whittaker and Mr Thomson in the present case. The discharge of potentially lethal weapons involved a high risk of serious injury or death to the occupants, and the entry was forced by using cars to ram a locked gate.
[22]R v Tiori, above n 18, at [3].
We consider the starting point for the present offending of seven and a half years was consistent with the relevant example provided in Mako. Further, we cannot see any error in ranking this offending as requiring a starting point of six months less than that in Tiori.
Parity
Mr Keegan advanced submissions that applied both to Mr Thomson and to Mitchell Whittaker, criticising what he characterised as a stark and unjustified lack of parity between the starting points adopted for each of them, and that adopted for Caleb Whittaker. On an analysis of the actus reus comprising the immediate events in the confrontation at the gang pad, he argued that all three offenders played materially the same role. Each were charged as parties, the prosecution did not attempt to identify who discharged the two weapons that were used, and they all fled the scene at the same time. Mr Keegan cited text communications before the confrontation to which Caleb Whittaker was a party, showing that he was aware of what was being planned and was signalling his willingness to be involved. On this analysis, all the elements of aggravated burglary were similarly present in relation to all three offenders.
Mr Keegan acknowledged that Mr Thomson’s relatively early guilty plea to the aggravated burglary charge was appropriate, and there was no suggestion that he sought to resile from it. However, in terms of outcome, the relative contributions to the offending did not justify Mr Thomson being sentenced on the basis of a starting point more than twice the length of that adopted for Caleb Whittaker.
Mr Keegan relied on this Court’s approach to consideration of an apparent lack of parity between co-offenders in R v Lawson:[23]
It is not merely whether the offender thinks that he has been unfairly treated but whether there is a real justification for that grievance; whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.
[23]R v Lawson, above n 17, at 223.
In the course of his oral submissions, Mr Keegan focused his complaint more on what he characterised as an unprincipled and incorrect prosecutorial decision to withdraw the aggravated burglary charge against Caleb Whittaker part way through trial, and to accept a guilty plea to the lesser charge of discharge of a firearm with intent to injure. Mr Keegan conceded that the appropriate starting points for convictions for aggravated burglary, and for discharge of a firearm, justified the extent of the difference between the sentences imposed. However, what he described as the unprincipled and wrong decision by the prosecution still resulted in a gross and unjustified disparity to an extent that required intervention to substantially lessen the large difference between the starting points adopted for the respective offenders.
Mr Davie submitted that the difference in the sentences imposed was justified on the basis of the offences for which the respective appellants were being sentenced. He defended the prosecutor’s decision to withdraw the aggravated burglary charge against Caleb Whittaker as justified and appropriate. The background to, and preparation for, the confrontation at the gang pad was relevant to the offenders’ overall involvement. Mr Thomson was the prime mover as the aggrieved ex-member of the gang, and Mitchell Whittaker was much closer to him and more closely involved in the preparatory steps. Although Caleb Whittaker was aware of some of the background matters, he was not so involved. Mr Thomson and Mitchell Whittaker were older and had longer criminal histories than Caleb Whittaker and their circumstances reflected higher levels of pre-meditation and planning than could have been attributed to Caleb Whittaker.
At first blush, Mr Keegan’s characterisation of the disparity in sentences might trigger concern in the minds of reasonable observers that the sentencing process had gone awry. However a fully informed assessment, taking into account the different offences for which the sentences were imposed, removes the concern. Caleb Whittaker may have been fortunate to persuade the prosecution to withdraw the aggravated burglary charge against him, but it was an option open to the prosecutor in the circumstances as they presented themselves at the time. His good fortune in that respect cannot now be invoked by his co-offenders to procure a reduction in what are otherwise appropriate sentences that conform to established sentencing norms.
The reasonably-minded independent observer can be attributed with a full appreciation of all relevant circumstances.[24] Once judged by that standard, this is not a circumstance in which something can be said to have gone wrong with the administration of justice. As Mr Davie submitted, interference with a sentence on the ground of disparity is inappropriate unless the extent of disparity is unjustifiable or gross.[25]
Discounts for personal mitigating factors
Mitchell Whittaker — discount for cultural factors
[24]R v Lawson, above n 17, at 223.
[25]Macfarlane v R [2012] NZCA 317 at [24].
The s 27 cultural report prepared by Warren Nicholls describes a deprived upbringing in which Mitchell Whittaker’s parents appear to have spent all available money on alcohol and his early home was treated as the local party house. Mitchell Whittaker stole from an early age to put food on the table and was left in the company of older companions where risk-taking behaviours became a drug to him. He was subjected to physical abuse, violence was a part of his early life and he has misused drugs and alcohol. Mr Nicholls assessed Mitchell Whittaker as having had no early opportunity to develop strong cultural foundations. He is described as struggling to understand or value spirituality and having a lack of cultural awareness, including not being drawn to te reo Māori.
The pre-sentence report on Mitchell Whittaker stated that he denied involvement, having denied being in the area at the time the confrontation took place. The probation officer assessed his attitudes, friends and associates and violence as being offending-related factors. Mitchell Whittaker told the report-writer that he has no plans to leave the Crips gang of which he is a member.
Mitchell Whittaker was 32 at the time of sentencing. The cultural deficits described in the s 27 report provide some explanation as to why he is a repeat violent offender. However, that background does not in any way compel him to have offended in this way at this time.[26] The discount of four months represented approximately four per cent from the starting point for his sentence. In absolute terms, we consider the extent of acknowledgement of the matters raised by the s 27 report to be somewhat light, but not clearly outside the range that was available to the Judge.
[26]As observed by Whata J in Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [50], there must be some evidence identifying the presence of systematic deprivation in the offender’s background and linkage to the offending.
We have reflected on a separate criticism of lack of parity because Caleb Whittaker was also given a four month credit for the matters raised in the cultural report about him. The four month deduction from his much shorter sentence amounted to a discount of some 9.5 per cent. The Judge did not consider the weight of the respective cultural considerations raised by the report about each of the half‑brothers in any comparative way. They shared the same home environment for at least part of their early years, and similar cultural deprivation is described in the reports prepared by different authors about each of them. Accordingly, there is an expectation of an equivalent level of recognition of this as a mitigating factor in their offending.
Although they have been treated “the same” in that both were given a four month credit for mitigating circumstances described in their respective s 27 reports, in proportionate terms that avails Mitchell Whittaker to only half the extent that it did for Caleb Whittaker. It would be invidious to attempt any differential ranking in the relevance of mitigating circumstances described in the respective s 27 reports.
There can be no hard and fast rule requiring discounts for mitigating circumstances to be applied uniformly as a percentage of the starting point. In the context of discounts for guilty pleas, this Court has made an incidental observation that discounts on a percentage basis are preferable.[27] We note from a
survey of High Court decisions that discounts for cultural factors reflected in s 27 reports are routinely calculated on percentage terms.[28][27]McCreath v R [2014] NZCA 142 at [19]. Applying percentage discounts on their own is generally less likely to lead to error: Ferris-Bromley v R [2017] NZCA 115 at [16]–[18].
[28]For example R v Tauroa [2020] NZHC 376 at [46]; Hajnal-Huata v Police [2020] NZHC 468 at [49]; R v Heke-Gray [2019] NZHC 2841 at [50]; Solomon v Police [2019] NZHC 2668 at [33]; and R v Tamahou [2019] NZHC 2799 at [27].
In the unusual circumstances of appeals by these half-brothers, we consider the Judge’s approach was not the one to be preferred, and that this mitigating factor ought to have been calculated on a percentage basis. A 9.5 per cent deduction for Mitchell Whittaker would have been some nine months. We consider that warrants intervention, and allow Mitchell Whittaker’s appeal by reducing his end sentence by five months to address this disparity.
Caleb Whittaker — discount for cultural factors
Mr Hannam criticised as inadequate a discount of 9.5 per cent for the cultural factors raised in the s 27 report about Caleb Whittaker. Mr Hannam submitted that the extent of this discount compared unfavourably with others that he cited.[29] But entitlements to discounts on account of matters raised in s 27 reports are very much fact-specific in each case. Provision of guidelines would not be useful.
[29]Solicitor-General v Heta, above n 26 (30 per cent discount); R v Cuthbert [2019] NZDC 16558 (13 per cent discount); and R v Tauroa, above n 28 (15 per cent discount).
The report in Caleb Whittaker’s case describes a deprived background, parts of it shared with his half-brother, Mitchell. The report provides some explanation for the pattern of offending, which the s 27 report-writer (in common with the writer of the pre-sentence report) is hopeful may change after Caleb Whittaker has appreciated the consequences of the present offending. However, as with Mitchell, the offending on this occasion is not a consequence of those features of his upbringing. We agree that a modest discount such as was allowed was appropriate. We are not persuaded that it was inadequate in arriving at an appropriate end sentence for Caleb Whittaker.
Caleb Whittaker — discount for guilty plea
Mr Hannam submitted that the 15 per cent discount for Caleb Whittaker’s guilty plea after three days of trial was inadequate. He submitted that the firearms charge (which had been reduced prior to trial) was not realistically available whilst the aggravated burglary charge remained. The timing of the entry of his plea was not going to affect the length of the trial because Mitchell Whittaker maintained his defence. Arguably, the plea ought to have been seen as made at an earlier point in the trial process than is reflected in the 15 per cent discount.
We do not accept that point. Given that the form of the firearms charge had been reduced some months prior to trial from s 198(1) of the Crimes Act to s 198(2),[30] there were no new implications arising for that charge at trial. The extent of discount can take into account all the circumstances in which it arises. Here, Caleb Whittaker was prepared to take the case to trial for three days and had the benefit of the prosecution accepting that a distinction should be drawn between him and the other appellants on the more serious aggravated burglary charge.
Result
[30]Crimes Act, s 198(1) (alleged his being a party to intentional discharge of a firearm with intent to cause grievous bodily harm); and s 198(2) (alleged his being a party to reckless discharge of a firearm with intent to injure). The amended charge against Caleb Whittaker was expressed in terms “with reckless disregard for the safety of others did discharge …”.
The 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.
The appeal of James Thomson is dismissed.
The appeal of Caleb Whittaker is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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