Wipa v R

Case [2018] NZCA 219 27 June 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA323/2017
[2018] NZCA 219

BETWEEN	TANE WIPA Appellant
AND	THE QUEEN Respondent

Hearing:	9 May 2018
Court:	French, Miller and Williams JJ
Counsel:	D S Niven for Appellant K S Grau and J E Mildenhall for Respondent
Judgment:	27 June 2018 at 11.30 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe appellant is sentenced to four years and nine months imprisonment.
CIndication that, but for s 86C of the Sentencing Act 2002, the Court would have confirmed a minimum period of imprisonment of two-thirds of the appellant’s sentence.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Mr Wipa was found guilty at trial of the aggravated robbery of an Auckland dairy. The Crown case was that his two accomplices, both youths, robbed the dairy while he, the adult leader, stood lookout outside. The case against him rested on CCTV footage. Mr Wipa challenged his identification and argued that the footage did not establish participation or guilty knowledge of what was happening in the dairy. He elected not to give evidence.
The sentence was five years and three months imprisonment, a term which included a nine-month uplift for, among other things, previous relevant offending.[1] One of those previous offences was a robbery, a first-strike offence.[2] The aggravated robbery was a second‑strike offence. Accordingly, Judge Gibson was required to, and did, order under s 86C(4) of the Sentencing Act 2002 that Mr Wipa serve the full term without parole.[3]
[1]R v Wipa [2017] NZDC 10679 at [14].
[2]Sentencing Act 2002, s 86A, definition of “serious violent offence”.
[3]R v Wipa, above n 1, at [18].
This appeal is brought against sentence only. It is said that a different sentence would have resulted had the defence been run differently, or had Mr Wipa pleaded guilty. He attributes the sentence he actually received to counsel error. For reasons which we can state quite shortly, we do not accept that his trial counsel, Ms Ives, erred.
When sentencing an offender on a second-strike offence the court must also order that the offender serve the full term, meaning that the offender may not be admitted to parole on a long-term sentence or granted early release on a short-term one.[4] The appeal requires that we decide whether the court may also increase the sentence for previous convictions that include the first-strike offence. This Court was not required to decide this point in its recent substantive decisions on second-strike sentencing, Barnes and Paerau,[5] although the Court in the latter case expressed the view that an uplift for a first strike offence contained an element of “double counting”,[6] and there is some conflict in High Court decisions.[7]

Relevant facts

[4]Sentencing Act 2002, s 86C(4).

[5]Barnes v R [2018] NZCA 42; and Paerau v R [2018] NZCA 139. The Court also briefly considered the issue in Dibben v R [2018] NZCA 134 but did not…

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 Wipa v R

Details

AGLC: Wipa v R [2018] NZCA 219
Case: [2018] NZCA 219
Decision Date: 27 June 2018 at 11.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Tane Wipa appealed against his sentence for aggravated robbery. The court had to determine whether the sentencing judge correctly applied the law in imposing a nine-month uplift for Wipa's criminal history and whether the sentence was manifestly excessive. The appeal court held that the sentencing judge misdirected himself in law by failing to consider the second-strike regime when imposing the uplift. The court found that a small uplift was justified despite the second-strike regime, but the uplift of nine months was excessive. The appeal court allowed the appeal and sentenced Wipa to four years and nine months imprisonment. The court indicated that, but for the second-strike regime, it would have confirmed a minimum period of imprisonment of two-thirds of the appellant’s sentence.

The court addressed the legal issue of whether a sentencing judge may increase the sentence for previous convictions when sentencing an offender on a second-strike offence. The court found that the Sentencing Act did not preclude the judge from considering the parole consequences when fixing a second-strike sentence. The court held that when considering an uplift for previous convictions, the court should decide whether, having regard to the loss of parole under s 86C, an uplift is needed to achieve the sentencing purposes of denunciation, accountability, deterrence and community protection. The court concluded that the uplift of nine months was excessive and fixed the uplift at three months.

The court concluded that the end sentence of five years and three months imprisonment was manifestly excessive because the uplift of nine months was excessive. The court allowed the appeal and sentenced Wipa to four years and nine months imprisonment. The court indicated that, but for the second-strike regime, it would have confirmed a minimum period of imprisonment of two-thirds of the appellant’s sentence.

Orders