Whittaker v R

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.