WHITTAKER v R [2020] NZCA 241

WHITTAKER v R [2020] NZCA 241 [17 June 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA675/2019[2020] NZCA 241BETWEEN MITCHELL HADLEY WHITTAKERAppellantAND THE QUEENRespondentCA30/2020BETWEEN JAMES ANDERSON THOMSONAppellantAND THE QUEENRespondentCA9/2020BETWEEN CALEB EDWIN WHITTAKERAppellantAND THE QUEENRespondentHearing: 14 May 2020Court: Kós P, Venning and Dobson JJCounsel: K R Pascoe for Appellant M WhittakerP M Keegan for Appellant J ThomsonJ C Hannam for Appellant C WhittakerM R L Davie for RespondentJudgment: 17 June 2020 at 10 amJUDGMENT OF THE COURTA The appeal of Mitchell Whittaker is allowed. His sentence of seven yearsand two months' imprisonment is quashed and substituted with a sentence ofsix years and nine months' imprisonment.B The appeal of James Thomson is dismissed.C The appeal of Caleb Whittaker is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Dobson J)[1] These appeals are brought by the three appellants against the sentencesimposed on them by Judge Barkle in the District Court at New Plymouth on13 December 2019.1Background and circumstances of offending[2] James Thomson (Mr Thomson) had previously been a member ofthe Highway 61 gang and had been excluded from the gang after differences withother members. He did not accept his exclusion. As a friend of Mr Thomson's,Mitchell Whittaker became involved in negotiations with Highway 61 gang membersto resolve aspects of Mr Thomson's exclusion. Ten days before the confrontation thatsubsequently took place, text communications between Mitchell Whittaker and hishalf-brother, Caleb Whittaker, alluded to the prospect of a physical confrontation withmembers of the gang. On the day of the confrontation, Mr Thomson andMitchell Whittaker were communicating with each other to arrange that they meet up,armed with a shotgun in a guitar case.[3] At approximately 6.00 pm on 5 December 2017, Mr Thomson, Mitchell andCaleb Whittaker and others were in two cars that crashed through a locked gate ata residential property on the outskirts of Waitara. The property was being used as1 R v Thomson [2019] NZDC 25366 [Sentencing notes].a gang pad for members of the Highway 61 gang. Both cars then rammed intothe external metal walls of the building on the property. The occupants of the cars gotout, and shots were fired at the building from a shotgun. Shots were also fired fromthe gate of the property from a .22 rifle, and police later found four spent .22 cartridgesnear that gate.[4] Having fired numerous shots at and around the building, the appellants andthose accompanying them fled the scene in one of the two cars that had crashedthrough 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.[5] All three appellants were initially charged as parties to the discharge offirearms with intent to do grievous bodily harm, and to aggravated burglary.2The prosecution case did not identify which of those charged had used the firearms atthe scene. The prosecution took the view that it could not prove beyond reasonabledoubt which of the offenders fired the shots.[6] Mr Thomson pleaded guilty in June 2019. The other two appellants anda fourth participant, Mr Moke, went to trial. On the third day of trial, an agreementwas reached resulting in the aggravated burglary charge against Caleb Whittaker beingwithdrawn and he pleaded guilty to a single, reduced, charge under s 198(2) ofthe Crimes Act 1961 of being a party to the discharge of a firearm with intent to injure.3At the conclusion of the trial, Mitchell Whittaker was found guilty on both ofthe charges he faced. Mr Moke also pleaded guilty on the third day of trial toone charge of discharging a firearm with intent, but he has not appealed the sentenceimposed on him.[7] The sentences imposed by the Judge were:• Mitchell Whittaker — seven years and two months' imprisonment;2 Crimes Act 1961, ss 198(1) and 232(1)(a).3 The form of that charge had been reduced some months before trial.• James Thomson (with a 20 per cent discount for guilty plea) — five yearsand three months' imprisonment;• Caleb Whittaker (with a 15 per cent discount for guilty plea) — two yearsand six months' imprisonment.[8] The three appellants bring their appeals on the ground that the sentencesimposed were manifestly excessive.Sentencing analysis[9] The Judge acknowledged the absence of a guideline judgment on sentencingfor aggravated burglary and looked to this Court's decision in R v Makoacknowledging that that addresses sentencing for aggravated robbery and the need toundertake an overall assessment of the culpability of the offending.4[10] The Judge identified the number of participants in the offending as a firstaggravating factor. It involved eight to 10 participants travelling to the scene in threevehicles. He found there to have been a good degree of planning, and a measure ofpre-meditation, referring to text messages that had been produced. Arrangementswould have been necessary to have three vehicles and the firearms available.5[11] The Judge attributed to Mr Thomson and to Mitchell Whittaker knowledge ofthe property and the routines of people likely to be there. He considered that the timeof 6.00 pm chosen for the confrontation meant it was almost inevitable that the housewould be occupied.6 The use of weapons was an aggravating factor, the Judge notingthe ESR analysis which showed at least three shotgun rounds had been fired intothe exterior of the building and at least two into the interior. One of the roundsdischarged travelled in the direction of the adjoining pony club where activities weretaking place. The Judge considered that it was only extreme good fortune thatthe discharge of the firearms had not resulted in any physical injuries.4 Sentencing notes, above n 1, at [20], referring to R v Mako [2000] 2 NZLR 170 (CA).5 Sentencing notes, above n 1, at [22].6 At [23].[12] The Judge elected to take the use of firearms into account in rankingthe seriousness of the aggravated burglary, rather than uplifting the starting point toreflect the second charge on which Mr Thomson and Mitchell Whittaker were beingsentenced.7[13] The Judge treated the offending as gang related because the attack was ona gang pad and it arose out of tensions between Mr Thomson and the gang of whichhe had previously been a member.8[14] After ranking the relative seriousness of the offending, as the Judge perceivedit when compared with cases that had been cited to him, he adopted the starting pointon the aggravated burglary of seven years and six months' imprisonment for each ofMr Thomson and Mitchell Whittaker.9[15] In terms of personal aggravating and mitigating factors, the Judge upliftedMr Thomson's starting point by three months on account of relevant previousconvictions and the fact that he was serving a sentence of community detention atthe time.10 He then allowed a discount of 14 months for time spent on restrictiveelectronically monitored bail and acceptance of responsibility for his offending,plus a degree of remorse and a willingness to address the factors that had contributedto 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 andthree months' imprisonment.[16] In considering factors personal to Mitchell Whittaker, the Judge dismissed theneed for any uplift for previous convictions, observing that those of a more seriousnature were somewhat dated.12 The Judge acknowledged a cultural report aboutMitchell Whittaker, prepared under s 27 of the Sentencing Act 2002, which referredto drug and alcohol misuse and an upbringing of impaired well-being and diminished7 At [24].8 At [24].9 At [25]–[27].10 At [33].11 At [34].12 At [36]life choices.13 He considered there was no identified link between the personalcircumstances described and the offending. That limited the relevance of s 27considerations 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.[17] On the charge of discharging a firearm with intent to injure, the Judge assessedthe starting point for Caleb Whittaker and Mr Moke by acknowledging the presenceof the same aggravating features he had listed on the aggravated burglary assessment.14Again, the Judge ranked the seriousness of Caleb Whittaker's offending againstdecisions that had been cited to him as comparators, and settled on a starting pointof three years and six months' imprisonment.15 The Judge treated Caleb Whittaker asmore distanced from the gang aspects of the offending than the other two and his lesserrole was reflected in the fact that he was only facing one charge.[18] As to the circumstances personal to Caleb Whittaker, the Judge similarlydismissed the need for any uplift on account of previous convictions. The weight tobe given to the s 27 cultural report prepared in his case was similarly seen as limitedbecause it did not make out a distinct linkage between the deprived circumstancesof his upbringing and the current offending. The same discount of four monthsas afforded his half-brother was allowed for Caleb Whittaker to reflect the content ofthe s 27 report.16 Thereafter, a further discount of two months was allowed foracknowledgement of remorse and positive steps taken since his plea, leading toa sentence of three years' imprisonment. From that, a 15 per cent discount wasallowed for the late guilty plea entered on the third day of his trial, resulting in anend sentence of two years and six months' imprisonment.13 At [37]–[38].14 At [29].15 At [30]–[31].16 At [39]–[40].Grounds of appealMitchell Whittaker[19] 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 requiredwith 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 offendingwhen compared with the facts in other cases cited to and by him; and• a greater discount was required to recognise the material extent ofinter-generational cultural disconnect revealed in the s 27 cultural report.[20] Ms Pascoe adopted the submissions that were to be made by Mr Keegan onbehalf of Mr Thomson as to the stark lack of parity in the very different end sentencesimposed on those two offenders, when compared with Caleb Whittaker.Mr Thomson[21] The major ground of Mr Thomson's appeal, and that which was focused on byMr Keegan in oral submissions, was what he characterised as the unacceptable extentof disparity between the sentences finally imposed on Mr Thomson andMitchell Whittaker, when compared with the end sentence for Caleb Whittaker.[22] On the basis of this Court's decision in R v Lawson,17 Mr Keegan submittedthat 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 burglarycharge against Caleb Whittaker should be reflected in reductions in the sentences for17 R v Lawson [1982] 2 NZLR 219 (CA).the other two appellants to restore a level of parity that would provide assurance tofully-informed reasonable observers that justice had been done.[23] Mr Keegan made similar criticisms of the starting point to those made byMs Pascoe. Arguably, the Judge rated the offending as more serious than was justified.Caleb Whittaker[24] Perhaps unsurprisingly, on Caleb Whittaker's behalf Mr Hannam did notchallenge the starting point of three years and six months' imprisonment.Instead, the end sentence was challenged as manifestly excessive because aninsufficient reduction was given for Caleb Whittaker's guilty plea, once a plea becamepossible to the reduced charge. Also, arguably insufficient credit was given for thecultural deprivation in Caleb Whittaker's upbringing, as described in the s 27 culturalreport about him.DiscussionStarting point for aggravated burglary[25] Ms Pascoe took the lead in challenging the starting point set by the Judge forMitchell Whittaker's and Mr Thomson's convictions for aggravated burglary.Ms Pascoe submitted that the Judge failed to stand back and make an overallassessment of the relative seriousness of this offending. She submitted that too muchhad been made of the number of participants involved in the confrontation, whenit was only their presence at the site that constituted any intimidation by the majorityof them, without any more aggressive actions. She submitted that the complainantswere indifferent to the precise number of Mitchell Whittaker's associates confrontingthem at the property, being unaware of the third car and its occupants which stayedoutside the gate to the property. Ms Pascoe also argued that the offending should havebeen seen as less serious when only one of the firearms was discharged within theproperty.[26] Ms Pascoe submitted that the Judge was wrong to attribute toMitchell Whittaker any detailed awareness of the layout of the gang pad or thedomestic routine of those likely to be there. Certainly, that could be attributed toMr Thomson but she submitted it was wrongly attributed to Mitchell Whittaker.[27] Ms Pascoe submitted that the Judge erred in treating this aggravated burglaryas 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 wereaggravating features of pre-meditation, multiple offenders, weapons used and a homeinvasion with a risk of harm.19[28] Ms Pascoe also submitted that the Judge had misapplied the observation ofthis Court in Mako. In the context of aggravated robberies, the Court had suggestedstarting points of seven years or more for forced entry into premises at night bya number of offenders seeking money, drugs or other property and including violenceagainst victims where weapons are brandished, even if no serious injuries areinflicted.20[29] Mr Keegan's written submissions on Mr Thomson's behalf raised similarconcerns to those argued for Mitchell Whittaker that the Judge had ranked theoffending more seriously than was justified. It was the loss of Mr Thomson's gangpatch that precipitated the tension, but that ought not to have carried material weightin attributing greater culpability to him for the offending. Mr Keegan also questionedthe cases referred to as comparators by the Judge, submitting that other cases whichhe had cited in his sentencing submissions ought to have been taken into account.[30] The features of this offending included the use of cars to force entry tothe property, intimidation and force by way of the presentation of weapons, whichwere 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 thatno one was seriously injured. One of the rounds from the .22 rifle passed throughthe property and towards the Waitara Pony Club premises adjoining it, where activitieswere taking place.18 Tiori v R [2011] NZCA 355.19 At [22].20 R v Mako, above n 4, at [58].[31] The level of intimidation was increased, or at least reinforced, by the numberof 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 occurredat an identified gang property.[32] In ranking the relative seriousness of the offending, we do not place anysignificant weight on Mr Thomson and Mitchell Whittaker being familiar with thelayout 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 becausethe confrontation occurred in the early evening. However, the essence of theintimidatory impact would have been present whenever it occurred and was unlikelyto be heightened by the appellants' familiarity with domestic routines likely to beoccurring at the property.[33] This is offending of a type that could not occur without a certain degreeof planning. The Judge was entitled to rank it as involving a moderate level ofpre-meditation and planning given the text messages between the participants thatpreceded it and the organisation involved in gathering weapons, cars and multipleparticipants. The features we have considered comfortably place the offending a littleabove the half way point of available sentences where the maximum is14 years' imprisonment.[34] In urging a lower starting point, Ms Pascoe cited the High Court decision inJones v R in which the starting point adopted in the District Court of six years andsix months' imprisonment for an aggravated burglary with somewhat similar featureswas 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 isnot persuasive in making out a lower starting point for this offending.[35] Mr Davie submitted for the respondent that the starting point here of seven anda 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 housearmed with a slug gun, a hammer and a crowbar. They wore balaclavas and robbed21 Jones v R [2019] NZHC 1816.victims of money and drugs. Young children were present at the address and oneoffender hit an adult victim in the head with the slug gun.22 The relative seriousnessof those features are almost matched by those attributed to Mitchell Whittaker andMr Thomson in the present case. The discharge of potentially lethal weapons involveda high risk of serious injury or death to the occupants, and the entry was forced byusing cars to ram a locked gate.[36] We consider the starting point for the present offending of seven and a halfyears was consistent with the relevant example provided in Mako. Further, we cannotsee any error in ranking this offending as requiring a starting point of six months lessthan that in Tiori.Parity[37] Mr Keegan advanced submissions that applied both to Mr Thomson andto Mitchell Whittaker, criticising what he characterised as a stark and unjustified lackof parity between the starting points adopted for each of them, and that adopted forCaleb Whittaker. On an analysis of the actus reus comprising the immediate eventsin the confrontation at the gang pad, he argued that all three offenders playedmaterially the same role. Each were charged as parties, the prosecution did not attemptto identify who discharged the two weapons that were used, and they all fled the sceneat the same time. Mr Keegan cited text communications before the confrontation towhich Caleb Whittaker was a party, showing that he was aware of what was beingplanned and was signalling his willingness to be involved. On this analysis, allthe elements of aggravated burglary were similarly present in relation to all threeoffenders.[38] Mr Keegan acknowledged that Mr Thomson's relatively early guilty pleato the aggravated burglary charge was appropriate, and there was no suggestion thathe sought to resile from it. However, in terms of outcome, the relative contributionsto the offending did not justify Mr Thomson being sentenced on the basis of a startingpoint more than twice the length of that adopted for Caleb Whittaker.22 R v Tiori, above n 18, at [3].[39] Mr Keegan relied on this Court's approach to consideration of an apparent lackof parity between co-offenders in R v Lawson:23It is not merely whether the offender thinks that he has been unfairly treatedbut whether there is a real justification for that grievance; whethera reasonably minded independent observer aware of all the circumstances ofthe offence and of the offenders would think that something had gone wrongwith the administration of justice.[40] In the course of his oral submissions, Mr Keegan focused his complaint moreon what he characterised as an unprincipled and incorrect prosecutorial decision towithdraw the aggravated burglary charge against Caleb Whittaker part way throughtrial, and to accept a guilty plea to the lesser charge of discharge of a firearm withintent to injure. Mr Keegan conceded that the appropriate starting points forconvictions for aggravated burglary, and for discharge of a firearm, justified the extentof the difference between the sentences imposed. However, what he described asthe unprincipled and wrong decision by the prosecution still resulted in a gross andunjustified disparity to an extent that required intervention to substantially lessenthe large difference between the starting points adopted for the respective offenders.[41] Mr Davie submitted that the difference in the sentences imposed was justifiedon the basis of the offences for which the respective appellants were being sentenced.He defended the prosecutor's decision to withdraw the aggravated burglary chargeagainst 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-memberof the gang, and Mitchell Whittaker was much closer to him and more closely involvedin the preparatory steps. Although Caleb Whittaker was aware of some ofthe background matters, he was not so involved. Mr Thomson and Mitchell Whittakerwere older and had longer criminal histories than Caleb Whittaker and theircircumstances reflected higher levels of pre-meditation and planning than could havebeen attributed to Caleb Whittaker.[42] At first blush, Mr Keegan's characterisation of the disparity in sentences mighttrigger concern in the minds of reasonable observers that the sentencing process had23 R v Lawson, above n 17, at 223.gone awry. However a fully informed assessment, taking into account the differentoffences for which the sentences were imposed, removes the concern.Caleb Whittaker may have been fortunate to persuade the prosecution to withdrawthe aggravated burglary charge against him, but it was an option open to the prosecutorin the circumstances as they presented themselves at the time. His good fortune inthat respect cannot now be invoked by his co-offenders to procure a reduction in whatare otherwise appropriate sentences that conform to established sentencing norms.[43] The reasonably-minded independent observer can be attributed with a fullappreciation of all relevant circumstances.24 Once judged by that standard, this is nota circumstance in which something can be said to have gone wrong withthe administration of justice. As Mr Davie submitted, interference with a sentence onthe ground of disparity is inappropriate unless the extent of disparity is unjustifiableor gross.25Discounts for personal mitigating factorsMitchell Whittaker — discount for cultural factors[44] The s 27 cultural report prepared by Warren Nicholls describes a deprivedupbringing in which Mitchell Whittaker's parents appear to have spent all availablemoney 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 inthe 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 hasmisused drugs and alcohol. Mr Nicholls assessed Mitchell Whittaker as having hadno early opportunity to develop strong cultural foundations. He is described asstruggling to understand or value spirituality and having a lack of cultural awareness,including not being drawn to te reo Māori.[45] The pre-sentence report on Mitchell Whittaker stated that he deniedinvolvement, having denied being in the area at the time the confrontation took place.The probation officer assessed his attitudes, friends and associates and violence as24 R v Lawson, above n 17, at 223.25 Macfarlane v R [2012] NZCA 317 at [24].being offending-related factors. Mitchell Whittaker told the report-writer that he hasno plans to leave the Crips gang of which he is a member.[46] Mitchell Whittaker was 32 at the time of sentencing. The cultural deficitsdescribed in the s 27 report provide some explanation as to why he is a repeat violentoffender. However, that background does not in any way compel him to have offendedin this way at this time.26 The discount of four months represented approximatelyfour per cent from the starting point for his sentence. In absolute terms, we considerthe extent of acknowledgement of the matters raised by the s 27 report to be somewhatlight, but not clearly outside the range that was available to the Judge.[47] We have reflected on a separate criticism of lack of parity becauseCaleb Whittaker was also given a four month credit for the matters raised inthe cultural report about him. The four month deduction from his much shortersentence amounted to a discount of some 9.5 per cent. The Judge did not considerthe weight of the respective cultural considerations raised by the report about each ofthe half-brothers in any comparative way. They shared the same home environmentfor at least part of their early years, and similar cultural deprivation is described inthe reports prepared by different authors about each of them. Accordingly, there isan expectation of an equivalent level of recognition of this as a mitigating factor intheir offending.[48] Although they have been treated "the same" in that both were givena four month credit for mitigating circumstances described in their respective s 27reports, in proportionate terms that avails Mitchell Whittaker to only half the extentthat it did for Caleb Whittaker. It would be invidious to attempt any differentialranking in the relevance of mitigating circumstances described in the respective s 27reports.[49] There can be no hard and fast rule requiring discounts for mitigatingcircumstances to be applied uniformly as a percentage of the starting point.26 As observed by Whata J in Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241at [50], there must be some evidence identifying the presence of systematic deprivation inthe offender's background and linkage to the offending.In the context of discounts for guilty pleas, this Court has made an incidentalobservation that discounts on a percentage basis are preferable.27 We note from asurvey of High Court decisions that discounts for cultural factors reflected in s 27reports are routinely calculated on percentage terms.28[50] In the unusual circumstances of appeals by these half-brothers, we considerthe Judge's approach was not the one to be preferred, and that this mitigating factorought to have been calculated on a percentage basis. A 9.5 per cent deduction forMitchell Whittaker would have been some nine months. We consider that warrantsintervention, and allow Mitchell Whittaker's appeal by reducing his end sentence byfive months to address this disparity.Caleb Whittaker — discount for cultural factors[51] Mr Hannam criticised as inadequate a discount of 9.5 per cent for the culturalfactors raised in the s 27 report about Caleb Whittaker. Mr Hannam submitted that theextent of this discount compared unfavourably with others that he cited.29But entitlements to discounts on account of matters raised in s 27 reports are verymuch fact-specific in each case. Provision of guidelines would not be useful.[52] The report in Caleb Whittaker's case describes a deprived background, partsof it shared with his half-brother, Mitchell. The report provides some explanation forthe pattern of offending, which the s 27 report-writer (in common with the writer ofthe pre-sentence report) is hopeful may change after Caleb Whittaker has appreciatedthe consequences of the present offending. However, as with Mitchell, the offendingon this occasion is not a consequence of those features of his upbringing. We agreethat a modest discount such as was allowed was appropriate. We are not persuadedthat it was inadequate in arriving at an appropriate end sentence for Caleb Whittaker.27 McCreath v R [2014] NZCA 142 at [19]. Applying percentage discounts on their own is generallyless 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 468at [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].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).Caleb Whittaker — discount for guilty plea[53] Mr Hannam submitted that the 15 per cent discount for Caleb Whittaker'sguilty plea after three days of trial was inadequate. He submitted that the firearmscharge (which had been reduced prior to trial) was not realistically available whilstthe aggravated burglary charge remained. The timing of the entry of his plea was notgoing to affect the length of the trial because Mitchell Whittaker maintained hisdefence. Arguably, the plea ought to have been seen as made at an earlier point inthe trial process than is reflected in the 15 per cent discount.[54] We do not accept that point. Given that the form of the firearms charge hadbeen reduced some months prior to trial from s 198(1) of the Crimes Act to s 198(2),30there were no new implications arising for that charge at trial. The extent of discountcan take into account all the circumstances in which it arises. Here, Caleb Whittakerwas prepared to take the case to trial for three days and had the benefit of theprosecution accepting that a distinction should be drawn between him and the otherappellants on the more serious aggravated burglary charge.Result[55] The appeal of Mitchell Whittaker is allowed. His sentence of seven years andtwo months' imprisonment is quashed and substituted with a sentence of six years andnine months' imprisonment.[56] The appeal of James Thomson is dismissed.[57] The appeal of Caleb Whittaker is dismissed.Solicitors:Crown Law Office, Wellington for Respondent30 Crimes Act, s 198(1) (alleged his being a party to intentional discharge of a firearm with intent tocause grievous bodily harm); and s 198(2) (alleged his being a party to reckless discharge of afirearm with intent to injure). The amended charge against Caleb Whittaker was expressed interms "with reckless disregard for the safety of others did discharge ".