Whittaker v The Queen
[2019] NZHC 1227
•31 May 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2019-409-000052
[2019] NZHC 1227
BETWEEN SHAUN FRANCIS WHITTAKER
Appellant
AND
THE QUEEN
Respondent
Hearing: 30 May 2019 Appearances:
M Zintl for Appellant
J H Whitcombe for Respondent
Judgment:
31 May 2019
JUDGMENT OF GENDALL J
WHITTAKER v R [2019] NZHC 1227 [31 May 2019]
[1] On 24 January 2018 Judge Garland in the District Court at Christchurch sentenced the appellant Shaun Whittaker to six years and six months’ imprisonment on a number of charges. Mr Whittaker was sentenced following his guilty plea on one charge of aggravated robbery, four charges of dishonestly using a credit card to obtain property or to obtain a pecuniary advantage, one charge of possessing an offensive weapon in a public place, one charge of dishonestly and without claim of right getting into a vehicle, one charge of driving while disqualified third or subsequent, and one charge of common assault.
[2]Mr Whittaker now appeals that sentence.
[3] The appellant’s Notice of Appeal here was filed slightly out of time and he now seeks leave to extend the time for filing of his Notice of Appeal. There is no opposition from the respondent to the granting of this leave. Leave extending the time for filing this appeal is appropriate in the circumstances outlined by the appellant here and is granted. I now turn to consider the substantive appeal.
Facts
[4] As to the background facts relating to this appeal, on 7 July 2006 the appellant was convicted of driving whilst disqualified and disqualified from driving indefinitely. Despite this, in the morning of 3 September 2017, the appellant unlawfully took and drove away a white Ford Fiesta motor vehicle from a driveway in Templeton, Christchurch.
[5] At approximately 7.15 pm on that day, 3 September 2017, Mr Whittaker entered the residential address of people he knew, Owen and Joanne Stenton in Templeton. The Stentons are aged 67 and 64 respectively. The appellant aggressively pointed what he represented to be a short-barrelled firearm at the Stentons and shouted, “[g]et the money, get it out of the safe, I know there is a safe”. He pointed the firearm at Mrs Stenton and tapped the barrel on her chest as she backed away. She then picked up her phone to call 111 which caused Mr Whittaker to shove her arm causing her to stumble and drop the phone. Mr Stenton then told Mr Whittaker there was no safe or
money. The appellant then presented a small bullet in a threatening manner and told Mr Stenton he would shoot him. The pair began struggling and Mr Whittaker stabbed Mr Stenton’s hand with a screwdriver causing a graze to his hand and then, again, the appellant threatened him. Shortly after, Mr Stenton told Mr Whittaker he only had
$30 and went to remove it from his phone case. Mr Whittaker grabbed the phone and took it along with the $30 and four bank cards which were inside the phone case. Mr Whittaker then left the address in the vehicle that he had unlawfully taken earlier that day, before he dumped the vehicle on the side of the road nearby. These events, it appears from material before the District Court, were frightening and traumatic in the extreme for the Stentons.
[6] At 7.34 pm that evening, Mr Whittaker then entered the Tappers Bar in Hornby. He used the victim’s Westpac credit card to ask for $500 in cash. He tried unsuccessfully a number of times to complete the transaction by pressing enter without entering a PIN. He then left the Bar.
[7] Approximately five minutes later Mr Whittaker entered the Caltex service station in Hornby. He successfully used the (PIN-less) payWave function of the Westpac credit card to purchase two packets of cigarettes for $65.
[8] Shortly after that, Mr Whittaker went to an ATM outside the Z service station at Hornby and attempted to withdraw $300 in cash using the credit card, but this was unsuccessful. He then attempted to use the card to make a transaction of $92.05 over the counter in Z but that was declined. A further transaction of $60 was then attempted and also declined.
[9] Two days later, on 5 September 2017, Mr Whittaker drove his own Honda car down Colombo Street and parked opposite Bailey’s Bar in Edgeware. He jumped out of the car and took a crossbow out of the boot. He pointed the unloaded crossbow at a man sitting outside the bar and yelled at him. He put the crossbow back in the boot and then ran across the road towards the man, punched him once causing him to land on the ground after falling over some tables. As he was trying to get up Mr Whittaker pushed him over again.
Principles on appeal
[10] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.1 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “…court will not intervene where the sentence is within the range that can be properly be justified by accepted sentencing principles”.2 The focus is on the correctness of the end result, not the process by which the sentence was reached. It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.3
District Court decision
[11] In his sentencing decision in the District Court Judge Garland referred to Mr Whittaker’s pre-sentence report. He noted this indicated his offending-related factors as including a harmful pattern of drug use, a propensity for violence, his general attitude, antisocial peers and his lifestyle. His Honour recorded that the pre- sentence report also indicated that Mr Whittaker was genuinely remorseful for his offending, particularly in relation to the aggravated robbery which had targeted a couple known to him personally. His Honour accepted that Mr Whittaker had a very difficult childhood and upbringing which had “no doubt” contributed to his behaviour.
[12] The Judge acknowledged R v Mako as the tariff case for aggravated robbery.4 His Honour then identified as the relevant aggravating features of the offending here: the stolen property consisting of a cellphone, the small amount of cash and four bank cards; use of an imitation firearm and production of the bullet; stabbing of the victim’s hand with a screwdriver causing some injury; the home invasion (“described as a serious aggravating factor”); and the substantial impact on the victims and the high level of emotional harm caused to them.
1 Criminal Procedure Act 2011, ss 250(2) and 250(3).
2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
3 Ripia v R [2011] NZCA 101 at [15].
4 R v Mako [2000] 2 NZLR 170 (CA).
[13] In his sentencing, Judge Garland adopted a starting point of seven years’ imprisonment on the aggravated burglary charge. He applied an uplift of six months for the unlawfully getting into a motor vehicle charge and the credit card offending. A further uplift of six months was imposed with respect to the driving whilst disqualified third or subsequent charge and an uplift of three months was made for the charges of possession of an offensive weapon and the assault. The final starting point, therefore, was one of eight years and three months’ imprisonment.
[14] Judge Garland then applied a six months uplift for personal aggravating features, being the appellant’s many previous convictions. He then allowed a full 25 per cent discount (in fact slightly above the 25 per cent in his calculation) of two years and three months for the appellant’s early guilty pleas on all the charges except for the charge of unlawfully getting into a motor vehicle and driving whilst disqualified. The end sentence imposed therefore was one of six years and six months’ imprisonment. The appellant was also disqualified for driving for two years.
Submissions
Appellant’s submissions
[15] In relation to the substance of the appeal, counsel for the appellant, Mr Zintl, submits that the starting point adopted of seven years for the aggravated robbery charge was too high. He cites a number of cases involving sentencing for aggravated robbery that, in his submission, tend to support his argument that the sentence in this case was manifestly excessive:
(a)Landon v R:5 where a starting point of only six years was adopted. This case involved an ambush outside the property in question, the victim then taken inside the property and subjected to degrading homophobic abuse before multiple items of property were stolen.
(b)Reid v R:6 where a starting point of four years was upheld. Here, after a knock at the door of the victim known to the defendant, he was
5 Landon v R [2018] NZCA 264.
6 Reid v R [2017] NZCA 451.
allowed inside. Once inside the defendant produced a knife and threatened violence if the victim did not give him $2,000. The knife was held knife against the victim’s throat leaving a mark. The Court of Appeal there described the starting point of four years, however, as lenient.
(c)R v Schuster:7 a case involving aggravated burglary on which a six year starting point was adopted. The defendant had entered a flat with a shotgun. He fired a shot into a television then went into a bedroom, pointed the shotgun at one of the occupants of the flat and fired a shot at the wall behind her bed. He stood in the doorway preventing her and her partner from leaving the room. The defendant then pointed the shotgun at the occupant and demanded she undertake a Google search and demanded her partner’s shoes, however, he managed to escape. The defendant then pointed the shotgun back at the occupant and demanded she drive him somewhere. She refused, he said he would “blow [her] fucking head off” and then he demanded the keys to her vehicle. He left the address in her vehicle.
(d)Tereora v R:8 where a six years and six months starting point was said by the Court of Appeal to be “within range”. Here, the defendant and two associates wearing balaclavas smashed a window and gained access to an address. The complainant arrived home, parked his car, and then was grabbed by one of the men and dragged into the lounge. He had his hands tied behind his back and was forced to lie down on the floor. One of the men threatened him with a firearm. They then took the complainant’s wallet, his car keys, cigarettes and cellphone before they left.
(e)R v Edwards:9 also involved a six years starting point. In this case, the defendant broke into the complainant’s house through window. The
7 R v Schuster [2015] NZHC 2833.
8 Tereora v R [2015] NZCA 120
9 R v Edwards CA67/00, 18 April 2000.
complainant confronted him and the defendant brandished a butcher’s knife and then ran at the complainant, preventing him from shutting his bedroom door when he tried to escape. The defendant then left.
[16] Before me Mr Zintl suggested that, though the Court of Appeal in the tariff case of Mako had indicated that a starting point of seven years was appropriate when the aggravated robbery involved the entering of a dwelling place by night, that particular finding may be no longer good law.10 And, in any event, Mr Zintl noted that Mako referred to a night-time forced entry of premises by several offenders, as was the position in the cases he has outlined above, whereas, in the present case, the appellant acted alone. But on all of this, I do note that Mr Zintl is not entirely accurate. The Court of Appeal did say in Mako at [58], in the case of an aggravated night-time burglary by several offenders involving home invasion, that a starting point of around ten years would be appropriate, not seven:11
[58] Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of 7 years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around 10 years.
(emphasis added)
[17] Mr Zintl endeavoured to suggest too that Mako may no longer be good law on this point, because the case was decided under the now-repealed home invasion provisions of the Crimes Act 1961. I disagree, however. These provisions had increased the penalty for (amongst other offences) aggravated robbery where the offence involved a home invasion.12 The maximum penalty in such cases was lifted from 14 years to 19 years’ imprisonment. Because the provisions had been repealed since the Court of Appeal’s decision in Mako, Mr Zintl submits a seven year starting point in simple one party home invasion cases is not appropriate. I acknowledge that both the Crown here and Judge Garland in his decision accepted that despite Mr Whittaker’s offending involving a home invasion, the decision of the Court of Appeal in Mako was reached when there was legislation that required higher sentences
10 Mako, above n 1.
11 Mako, above n 4
12 Crimes Act 1961, s 17C(1)(n); inserted by Crimes (Home Invasion) Amendment Act 1999 (1999 No 75); repealed by s 164 Sentencing Act 2002.
for offending involving home invasions. Notwithstanding this, the Court of Appeal has since confirmed that Mako still remains relevant in determining a sentencing starting point.13
[18] Mr Zintl suggests that, in light of the circumstances of the cases he cited, a starting point in the vicinity of six to six years and six months ought to have been adopted here.
[19] Mr Zintl further submits that Judge Garland erred in not adjourning the proceedings to enable enquiries to be made to determine whether a restorative justice process was appropriate as Mr Zintl says he was required to do under s 24A Sentencing Act. He says the circumstances under s 24(1) were satisfied, thus requiring the Judge to adjourn the matter. However, there is no evidence before the Court currently to suggest that the “Registrar ha[d] informed the [C]ourt that an appropriate restorative justice process [could] be accessed” pursuant to s 24(1)(e). Thus, Mr Zintl’s submission that the Judge was required to adjourn the matter under s 24A can be taken no further. And, as I note later in this judgment, the appropriateness of restorative justice in all the circumstances of this case must be questioned in any event.
[20] Finally, the appellant suggests that Judge Garland’s failure to discount his sentence on the basis of genuine remorse was a further error. On this, the pre-sentence report did suggest there was remorse. Further, Mr Whittaker had written letters of apology to the sentencing Judge and the victims of the aggravated robbery, which Mr Zintl argues are entirely genuine. They show, he says, that Mr Whittaker has accepted full responsibility for his offending here and acknowledges too the effect it had on all his victims.
Respondent’s submissions
[21] For the Crown, Mr Whitcombe maintains that the end sentence reached here was not out of range and therefore the appeal should be dismissed.
13 Hemopo v R [2016] NZCA 242.
[22] He cites two cases which he maintains do show that the starting point of seven years in this case was well within range:
(a)R v Armstrong: 14 In this case, a starting point of seven years and nine months was adopted. Here, three offenders entered the complainant’s address and demanded money. The starting point for Mr Armstrong, who was carrying an army-style knife, reflected in this case a threat to kill made by him. The lead offender who was holding a .22 firearm had already received a starting point indication of eight years and none months (R v Vagaia)15.
(b)Hemopo v R:16 In this case, a starting point of nine years was adopted. Here, two offenders had demanded drugs from a male complainant at the door of his home and then forced their way inside. The offender in this case noticed the female complainant was attempting to call police so he grabbed her phone from her. Subsequently, a third unidentified man entered the address, grabbed a knife from the kitchen and threatened the complainants with it. The men ransacked the address and took electronic items before leaving in the complainants’ car.
[23] Mr Whitcombe submits that while both Armstrong and Hemopo involve the additional feature of multiple offenders which is perhaps a further aggravating matter, they broadly share with the present case the other aggravating features. In the present case, Mr Whittaker invaded the home of the complainants who were reasonably elderly victims, brandished what he represented to be a firearm and a screwdriver, made a threat to kill or do serious harm, inflicted an (albeit reasonably minor) physical injury and took property. Mr Whitcombe contends that in these circumstances the starting point of seven years was well within range.
[24] Mr Whitcombe maintains that in relation to remorse, an offender is not entitled to a separate discount merely for professing remorse. A discount for remorse, separate
14 R v Armstrong [2018] NZHC 1351.
15 R v Vagaia [2018] NZHC 1225.
16 Hemopo v R, above n 13.
to a guilty plea, is ordinarily earned where, because of an understanding of the wrongfulness of the conduct, a tangible acceptance of responsibility for that conduct, and its effects on any victim, has occurred.17 Mr Whitcombe contended here that Judge Garland as the sentencing Judge was best-placed to determine whether Mr Whittaker’s remorse was genuine and thus deserving of credit separate to that allowed for his early guilty pleas.
Analysis
[25] While Mr Zintl is correct to highlight the repeal of the home invasion provisions from the Crimes Act as relevant in some way to a contemporary application of the R v Mako guideline judgment, this alone does not demonstrate that the starting point adopted in this case was manifestly excessive. The Sentencing Act recognises that where the offending, as here, “involved unlawful entry into…a dwelling place”, that will be an aggravating feature of the offence.18 There is nothing to suggest that by repealing the specific provision highlighted by Mr Zintl, Parliament was signalling to the courts that offending involving home invasion should be treated significantly less seriously. The correct interpretation of the repeal, as I see the position, is rather that the legislature was primarily concerned to simplify the approach to sentencing by clearly setting out relevant aggravating and mitigating factors. Thus, the fact the present offending involved a home invasion by night, in my view, was correctly assessed by Judge Garland as “a serious aggravating factor”.
[26] As I have noted above, in the guideline judgment of Mako, the Court of Appeal said where an aggravated robbery involved the entering of a private house (a home invasion), the starting point would be increased “under the home invasion provisions” to around 10 years.19 The Sentencing Act principle that in sentencing an offender, the Court “must take into account the seriousness of the type of offence….as indicated by the maximum penalties prescribed for the offences” is relevant here.20 Subsequent to the repeal of the home invasion provisions, the maximum penalty for this type of
17 Whitcombe v Police [2018] NZHC 1409 at [27]; Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
18 Section 9(1)(b).
19 Mako, above 4, at [58].
20 Sentencing Act, s 8(b).
offence decreased from 19 years to 14 years. The new maximum penalty therefore represents only about 73.7 per cent of the previous one. If that proportional decrease was also to apply to the Court of Appeal’s statement as to an appropriate starting point in relation to an aggravated robbery involving home invasion, a starting point under the current law on my calculations would be approximately seven years and four months.
[27] The cases cited by both Mr Whittaker and Mr Whitcombe, in my view, demonstrate that a starting point of seven years was within range in the present case. As Mr Whitcombe points out, the cases of Armstrong and Hemopo, with starting points of seven years nine months, and nine years respectively, share similar aggravating features to the present case. Moreover, in the case with the lowest starting point cited by Mr Whittaker, Reid, the Court of Appeal described the starting point of four years as “lenient”.21
[28] I am satisfied there are serious aggravating features in line with the Mako factors present in this case, as Judge Garland also found in his decision. I repeat, these were the fact that Mr Whittaker brandished what he represented to be a loaded firearm as well as presenting a screwdriver as a weapon. He targeted a private dwelling house, with a degree of premeditation (given his belief the house had a locked safe) and knowing too one of the elderly occupants had health issues. He shoved the female victim’s arm as she tried to call the police. He also removed a bullet from his pocket, held it out and told the male victim he would shoot him. He stabbed the male victim’s hand with a screwdriver causing a minor injury but telling him, too, that he would stab him with the screwdriver.
[29] In terms of additional general aggravating features pursuant to s 9(1) of the Sentencing Act, the victims here were also particularly vulnerable given their age and the fact one of them suffered from health issues known to Mr Whittaker.
[30] As a result of all the aggravating features present in this case and in light of the authorities cited by counsel, I am satisfied that the starting point adopted of seven years was within range. From the authorities it may have been slightly towards the
21 Reid, above n 6, at [15].
upper end of the range. But it cannot be said to have resulted in a sentence that was manifestly excessive. And, in any event, this Court, as a court hearing an appeal against sentence, will not engage in “tinkering” with a sentence.22
[31] As to the appellant’s point relating to restorative justice, I am satisfied that this Court cannot take this point any further, as there is no information before me that explains how the District Court had dealt with the issue. Thus, the Court cannot determine whether the correct procedure was followed under s 24A Sentencing Act. And, in any event, the tenor of the victim impact statements here is such that, in light of the considerable emotional harm they suffered in this case, it is not likely that the victims would wish to participate in a process such as this. Finally, on this aspect, I am of the view too that, even if there had been some failure to undertake enquiries on whether restorative justice measures could take place here, this failure did not result in a manifestly excessive sentence in this case.
[32] Finally, in terms of remorse, an offender is not automatically entitled to a separate discount for remorse merely because they say they are remorseful.23 In this case, Judge Garland was clearly cognisant of Mr Whittaker’s claim to remorse, citing the pre-sentence report’s comments on his remorse and the letters and “Memoirs Inside the Wire” written by him attached to his sentencing file which the Judge indicates he has read. Judge Garland was best placed to determine whether that remorse was genuine, in terms of whether there had been a “tangible acceptance of responsibility” by Mr Whittaker. Evidently, the Judge concluded that in all the circumstances here there was not such real and tangible remorse exhibited that would justify a significant penalty discount, and there is nothing for this Court to rely on that suggests this conclusion was wrong.
[33] For all the reasons I have outlined above, I conclude that there was no error in Judge Garland’s sentencing here and the end sentence of six years, six months’ imprisonment cannot be considered to be manifestly excessive.
22 Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at [86].
23 Whitcombe v Police, above n 17, at [27]; Hessell v R, above n 17, at [64].
Conclusion
[34]The application for extension of time to appeal is granted.
[35]The appeal against sentence is dismissed.
...................................................
Gendall J
Solicitors:
Marcus Zintl, Barrister, Blenheim Raymond Donnelly & Co, Christchurch
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