Whittle v The the Queen - [2022] NZHC 946

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2022-412-08

[2022] NZHC 946

BETWEEN
JOSHUA TE IRIMANA WHITTLE

Appellant

AND

THE QUEEN

Respondent

Hearing: 7 April 2020

Appearances:

D M Goodlet for Appellant R P Bates for Respondent

Judgment:

5 May 2022

JUDGMENT OF MANDER J

This judgment was delivered by me on 5 May 2022 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date: .

WHITTLE v R [2022] NZHC 946 [5 May 2022]

[1] Mr Joshua Whittle was sentenced together with five co-offenders in the Dunedin District Court on a charge of wounding with intent to injure.1 Mr Whittle faced an additional charge of assault with a weapon.2 After pleading guilty to these charges, he was sentenced by Judge Robinson to 22 months’ imprisonment.3 He now appeals that decision on the basis it is manifestly excessive and should have been commuted to a sentence of home detention.

Background

[2] On the evening of 25 September 2021, Mr Whittle and four of the other offenders were making their way as a group to a party at an address in Leith Street, Dunedin. This involved using a shortcut through a gap in a fence between the address of the victim, Bradley Thomas, and a flat on Castle Street. Mr Thomas had just used the shortcut. When he got into the backyard of the Castle Street flat an altercation developed between himself and the offenders at the location of the gap in the fence. The offenders started assaulting Mr Thomas.

[3] During the course of the attack Mr Thomas was surrounded. He was knocked to the ground where each of the offenders, including Mr Whittle, proceeded to punch, kick and stomp on him. Each time Mr Thomas managed to get to his feet, the offenders pulled him back onto the ground and continued the beating. He was punched in excess of 70 times and received multiple kicks and stomps to all areas of his body while he was on the ground, including a number of blows to the head.

[4] During this assault, Mr Whittle searched the immediate area looking for a weapon. He picked up a beer bottle and returned to where Mr Thomas was being assaulted. Mr Whittle forcefully struck Mr Thomas on top of his head with the bottle.

[5] Efforts by Mr Thomas’s friends to assist him resulted in them being assaulted by one of the other offenders, Marika Parker, who had also joined in the assault on Mr Thomas. As a result of the attack, Mr Thomas sustained a concussion and received

1      Crimes Act 1961, s 188(2) – maximum penalty of seven years’ imprisonment.
2      Crimes Act, s 202C – maximum penalty of five years’ imprisonment.
3      R v Parker [2022] NZDC 4651.

multiple grazes and cuts to his body, head and face, a large wound to the left lumbar region and a split left ear.

District Court decision

[6]…

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 Whittle v The the Queen

Details

AGLC: Whittle v The the Queen [2022] NZHC 946
Case: [2022] NZHC 946
Decision Date: 5 May 2022

CaseChat Overview and Summary

Joshua Te Irimana Whittle appeals against his conviction and sentence imposed by the Dunedin District Court. Whittle and his co-offenders were convicted of assault with intent to injure, and Whittle was additionally convicted of assault with a weapon. The co-offenders were sentenced to terms of home detention and community work, while Whittle was sentenced to 22 months' imprisonment. Whittle argues that the uplift for the assault with a weapon charge was excessive and that the court erred in not commuting his sentence to one of home detention. The High Court found that the uplift for the assault with a weapon charge was not excessive but did find that the court erred in not commuting Whittle's sentence to one of home detention. The appeal was allowed, the sentence of 22 months' imprisonment was quashed, and a sentence of nine months and two weeks' home detention was substituted. The Court imposed special conditions on the home detention sentence including that Whittle not possess, consume or use any alcohol or unprescribed drugs and that he attend and complete any recommended drug and alcohol counselling.

Orders