WHAANGA v NEW ZEALAND POLICE [2019] NZHC 775

WHAANGA v NEW ZEALAND POLICE [2019] NZHC 775 [10 April 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2019-485-11[2019] NZHC 775BETWEEN PETER IHAKA WHAANGAAppellantAND NEW ZEALAND POLICERespondentHearing: 9 April 2019Counsel: M Anderson for AppellantD M Helm for RespondentJudgment: 10 April 2019JUDGMENT OF CHURCHMAN JIntroduction[1] On 20 February 2019, Mr Whaanga was sentenced by Judge Thompson in theHutt Valley District Court to two years and three months' imprisonment on thefollowing charges:1(a) injuring with intent to injure;2 and(b) burglary.3[2] Mr Whaanga's co-defendant, his son, received a sentence of six months'community detention and 12 months intensive supervision.1 New Zealand Police v Whaanga [2019] NZDC 3200.2 Crimes Act 1961, s 189(2); maximum penalty five years' imprisonment.3 Section 231(1)(a); maximum penalty 10 years' imprisonment.[3] He appeals his sentence on the following grounds:(a) the sentence is manifestly excessive in terms of comparable cases andlacks parity with the sentence of his co-defendant;(b) the Judge placed insufficient weight on the appellant's personalmitigating factors including his employment, family circumstances andhis previous compliance with community-based sentences;(c) the Judge was wrong not to consider any element of excessive self-defence in terms of the offending, particularly given that the appellantbelieved the victim to be holding a firearm;(d) the Judge made an error of sentencing principle not to considerimposing an electronically monitored sentence;(e) the Judge placed insufficient weight on the appellant having notpreviously completed a rehabilitative sentence such as supervision andhis willingness to complete an anger management programme asrecommended in the PAC report; and(f) the Judge placed insufficient weight on the appellant's willingness toengage in restorative justice and the informal apology he made directlyto the victim.[4] The Crown opposes the appeal, submitting that the starting point was withinthe range available to the sentencing Judge and that, in the circumstances, the endsentence was not manifestly excessive.Factual background[5] On 8 December 2018, Mr Whaanga and two associates went to the victim'saddress to confront him about allegedly dealing in methamphetamine. Mr Whaangahad in his possession two metal tubes which were welded together, giving theimpression that it was a firearm, which he carried for protection.[6] After knocking for a number of minutes, Mr Whaanga repeatedly kicked thedoor, forcing his way into the victim's home. He approached the victim who wasstanding above him on the stair holding an item Mr Whaanga believed to be a firearm.He grabbed the victim by the neck, throwing him to the ground and causing him tolose consciousness.[7] Mr Whaanga then stood over the victim, pulling him from the ground anddemanding to know where the "P" and the money was. Failing to get a response, hepunched the victim once in the face with a closed fist. One of Mr Whaanga'sassociates stomped on the victim's neck while another took the victim's television andtoolbox to the vehicle.[8] As a result of the assault, the victim suffered cuts, bruising and concussion andwas admitted to hospital.District Court decision[9] In arriving at a starting point of "at least three years' imprisonment",4 the Judgetook into account the following aggravating factors:5(a) the "planned and deliberate" nature of the offending;(b) the home invasion aspect of the offending;(c) the presence of a weapon; and(d) the use of significant violence.[10] Applying a full guilty plea discount of 25 per cent, the end sentence arrived atwas two years and three months' imprisonment, bringing the sentence out of thejurisdiction for home detention. The Judge stated that, in any event, given4 New Zealand Police v Whaanga, above n 1, at [8].5 At [7].Mr Whaanga's offending, he would not have considered an electronically monitoredsentence.6Approach to appeal[11] This appeal is brought under s 250 of the Criminal Procedure Act 2011. Anappeal against sentence is an appeal against a discretion and must only be allowed ifthe Court is satisfied that, for any reason, there was an error in the sentence imposedand a different sentence should have been imposed.7 The focus is on the final sentenceand whether that was in the available range, rather than the exact process by which itwas reached.8Starting point[12] Counsel for Mr Whaanga, Mr Anderson, took the Court carefully through caseshe submitted were relevant and submitted that the sentence is manifestly excessivewhen compared to these other similar cases and when compared to the sentencereceived by the co-defendant. The cases which he refers to that are of relevanceinvolve starting points of between two to three years' imprisonment.9[13] However, as the Court of Appeal stated in R v Taueki, where a guidelinejudgment exists, relatively limited assistance can be gained from references to variousHigh Court judgments as each will turn on their own individual facts.10[14] The applicable guideline judgment for injuring with intent to injure is Nuku vR, in which the Court of Appeal provided guidance on how the factors identified inR v Taueki could be adapted to apply to lesser charges:11(a) Band one: where there are few aggravating features, the level ofviolence is relatively low and the sentencing judge considers theoffender's culpability to be at a level that might have been better6 At [8]-[9].7 Tutakangahau v R [2014] NZCA 279.8 Ripia v R [2011] NZCA 101 at [15].9 Pokaia v Police [2015] NZHC 1718; O'Docherty v Police [2014] NZHC 2312; Walker v Police[2016] NZHC 597; Chambers v R [2015] NZHC 1590.10 R v Taueki [2005] 3 NZLR 372 (CA) at [11]; recently emphasised in Kauvai v R [2017] NZCA241 at [13].11 Nuku v R [2012] NZCA 584 at [38].reflected in a less serious charge, a sentence of less than imprisonmentcan be appropriate.(b) Band two: a starting point of up to three years' imprisonment will beappropriate where three or fewer of the aggravating factors listed at[31] of Taueki are present.(c) Band three: a starting point of two years up to the statutory maximum(either five or seven years, depending on the offence) will apply wherethree or more of the aggravating features set out in Taueki are presentand the combination of those features is particularly serious. Thepresence of a high level of or prolonged violence is an aggravatingfactor of such gravity that it will generally require a starting pointwithin band three, even if there are few other aggravating features.[15] In terms of the aggravating factors identified in Taueki, it is my view that thefollowing are present on the facts of this case:(a) premeditation;(b) attacking the head;(c) multiple attackers;(d) home invasion; and(e) vigilante action.[16] The sentedncing Judge also took into account the presence of a weapon but, asthere is no suggestion of the weapon being used in the offending, it is my view that itis appropriate to exclude this as an aggravating factor.[17] The presence of five aggravating factors would bring this offending withinband three of Nuku where a starting point of at least two years' imprisonment isavailable. Given that the analogous cases raised by Mr Anderson for the appellantprovide a range of two to three years, the starting point of three years' imprisonmentadopted by the sentencing Judge cannot be said to have been unavailable. Particularlywhen an uplift for the burglary charge is added to the mix.[18] There is, however, the issue of parity. Mr Anderson notes that Mr Whaanga'sson received a sentence of six months' community detention. This sentence isobviously significantly less that that imposed on Mr Whaanga which Mr Andersonsubmits demonstrates a lack of parity. While the son was younger and has less of acriminal history, he contends that cannot fully explain the significant discrepancy insentencing.[19] The Crown accepts that the principle of consistency is a cornerstone of thesentencing process, however states that the Court should only intervene where there isan "unjustifiable and gross" disparity between co-offenders.12[20] The Court of Appeal in R v Lawson stated that the question for the Court onappeal is:13Whether a reasonably minded independent observer aware of all of thecircumstances of the offence and of the offenders would think that somethinghas gone wrong with the administration of justice.[21] As noted in Mr Anderson's submissions, in sentencing Mr Whaanga's son, theJudge indicated a start point of between two and two and a half years and then applieda full discount for guilty plea, age and lack of significant criminal history.Mr Anderson submits that although the Judge identified Mr Whaanga as the leadoffender, the violence inflicted was not significantly different. While Mr Whaangathrew the victim to the ground and punched him, his son stomped on his neck. It issubmitted that a more appropriate start point for Mr Whaanga would therefore havebeen around two years. Mr Anderson notes that the High Court in Stone v R said:14[W]hen considering parity between two co-offenders' sentences, it is moreimportant to consider parity of starting points rather than end sentencesbecause as the Court of Appeal observed in R v Mako, "fixing the startingpoint is the mechanism for seeking consistency in sentencing".[22] Accordingly, Mr Anderson submits that, while the Judge could have ultimatelyimposed a more lenient sentence on the son by applying various discounts, the error12 Sentencing Act 2002, s 8(e); R v Lawson [1982] 2 NZLR 219 at 22.13 R v Lawson, above n 12, at 223.14 Stone v R [2016] NZHC 1289 at [23] (citation omitted).lies in the starting point. He submits that Mr Whaanga's starting point should havebeen around the two-year mark which would have meant parity with his co-defendant.[23] In response, the Crown submits that, while the aggravating factors are similarbetween the two offenders, Mr Whaanga instigated the offending and was correctlyregarded by the Judge as having greater culpability. A higher starting point was,therefore, justified, and the difference of six months cannot be regarded as an"unjustifiable and gross" disparity.[24] I accept the Crown's submissions on this point. As the sentencing Judge noted,Mr Whaanga went to the victim's address with the intention of confronting him, takinghis son and one other with him for support. He was the lead offender and, in thosecircumstances, a reasonably minded observer would not think that a difference of sixmonths in the starting point adopted meant that something had gone wrong in theadministration of justice.Mitigating factors[25] For Mr Whaanga, Mr Anderson argues that he ought to have been given adiscount for good character, having regard to his status as a valued employee,involvement within the community and family circumstances.[26] The Crown submits that it was open to the Judge not to apply any discount forMr Whaanga's good character, having regard to his previous convictions for violencewhich were as recent as 2016.[27] Mr Whaanga's propensity for violence was a factor noted in his PAC report.He was convicted of assault on a police officer in 2016 and then again of assault on apolice officer with a weapon and threatening to kill in 2011. For both of theseinstances of offending, he received sentences of community detention. This prioroffending could be taken into account as an aggravating factor of the offender. In thecircumstances of this case, it is my view that any weight for his employment,community involvement and family circumstances is cancelled out by these priorconvictions for violent offending. He was not entitled to a discount for good character.[28] Mr Anderson further submits that what he describes as "excessive self-defence" mitigates the offending, arguing that Mr Whaanga saw the victim holdingsomething that he believed to be a firearm and, with that thought in mind, grabbed himand threw him to the ground, a reaction said to be reasonable in the circumstances.[29] I do not accept that submission. Mr Whaanga went to the address to confrontthe victim, forced his way into the victim's home, and himself had a weapon in hispossession, although it was not used. Even if I were to accept that the initial grabbingand throwing the victim to the ground was in response to a belief that the victim hada weapon, this would not excuse Mr Whaanga's actions in then raising the unconsciousvictim's head off the ground and punching him. This was not a case of excessive self-defence. Indeed, it cannot properly be categorised as a case of self-defence at all.Mr Whaanga had no lawful business going anywhere near the victim.[30] Mr Anderson further submits that the Judge placed insufficient weight onrestorative justice. He notes that Mr Whaanga was willing to engage in the restorativejustice process and sentencing was adjourned on occasions for the process to occur,but the victim did not engage. The victim has also not been available to provide anyvictim impact statement. Mr Whaanga, however, states that he has personallyapologised to the victim outside of the Court process and accepts that he "handled itwrong".[31] Section 10 of the Sentencing Act 2002 provides that the Court must take intoaccount restorative justice outcomes for sentencing purposes, including offers to makeamends or apologise to the victim, if the Court views them as genuine. The Courtshave recognised that, although discounts generally arise from the outcomes of asuccessful restorative justice process, a willingness to participate that did not proceedcan indicate a positive attitude and remorse.15[32] The Crown accepts that Mr Whaanga apologised to the victim and returned hisproperty, however it is submitted that it was open to the Judge not to apply a discretediscount for genuine remorse, given the comments in the PAC report that he "did notexpress any significant remorse" and that "his remorse was of self-interest where he15 Katoa v Police [2015] NZHC 1562 at [42]-[43].can see the stress and grief to his family, but made little admission to the impact onthe victim".[33] The comments in Mr Whaanga's PAC report indicate that there was a basis forfinding that his remorse could be reasonably viewed as not being genuine. He wasalso prepared to engage in the restorative justice process. There is an argument thathe should have been given some credit for that willingness, albeit limited. However,such discount would have been minimal and the focus is on the end sentence. TheJudge's election not to give a separate discount for remorse did not result in an endsentence that was outside the range available.Electronically monitored sentence[34] Mr Anderson accepts that, for an electronically monitored sentence to beconsidered, the length of sentence must be two years or under. He also accepts thatthe decision to then impose an electronically monitored sentence is a judicialdiscretion, and that appellate courts would be reluctant to interfere with such a decisionunless there is a demonstrated error of principle or where the sentence imposed isplainly wrong.[35] Mr Anderson also noted that the PAC report included a recommendation thatMr Whaanga undergo supervision, which would have included a special condition thathe attend an assessment for an anger management or violence prevention programme.[36] Mr Anderson submits that, considering the purposes and principles ofsentencing, an electronically monitored sentence together with supervision wouldhave met the purposes of sentencing (in particular rehabilitation) and would have beenan appropriate response in this case.[37] However, given my finding that the end sentence imposed of two years andthree months' imprisonment was one that was available to the sentencing Judge, anelectronically monitored sentence is not open for consideration.Result[38] For the reasons given above, the appeal is dismissed.Churchman JSolicitors:Thomas Dewar Sziranyi Letts, Lower Hutt for AppellantCrown Solicitor's Office, Wellington for Respondent