WHAREPAPA v R [2021] NZHC 1011

WHAREPAPA v R [2021] NZHC 1011 [7 May 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2021-409-000040[2021] NZHC 1011BETWEEN RONALD SYDNEY WHAREPAPAAppellantAND THE QUEENRespondentHearing: 28 April 2021Appearances: E J Forster for the AppellantJ E Lancaster for the RespondentJudgment: 7 May 2021JUDGMENT OF NATION JIntroduction[1] Mr Wharepapa was convicted of assault with a weapon and breaching aprotection order. Judge Garland sentenced him to two years and three months'imprisonment.1[2] Mr Wharepapa appeals that sentence.Facts[3] The victim is Mr Wharepapa's ex-partner. They were together for 20 years andshare three children, an adult daughter and two younger sons.1 R v Wharepapa [2021] NZDC 1300.[4] On 20 December 2019, a protection order was issued against Mr Wharepapain relation to the victim. On 15 February 2020, Mr Wharepapa was detained followinga family harm incident. A 10 day police safety order was issued and served on MrWharepapa. The victim was named as the protected person.[5] The day after the safety order was issued, Mr Wharepapa was at an address inFitzgerald Avenue, Christchurch with the victim. They got into an argument. MrWharepapa became angry and verbally abused the victim. At the time, they were onopposite sides of a vehicle. Mr Wharepapa threw a full glass bottle at the victim. Thebottle struck the top of her head, causing a laceration, and smashed. Mr Wharepapacontinued to verbally abuse the victim until he was driven away by an associate.District Court decision[6] Judge Garland set out the facts of the offending. He then turned to the pre-sentence report.[7] The Judge recorded Mr Wharepapa was 49 years of age with a criminal historyspanning nearly four decades. He noted prior offending has been strongly linked toMr Wharepapa's membership of the Mongrel Mob.[8] The Judge considered the pre-sentence report writer's comments that MrWharepapa seems to be on a desistence pathway. He said Mr Wharepapa's lastconvictions of significance were for violence-related offences and resulted in a termof imprisonment in 2013. The Judge noted Mr Wharepapa has, since then, beenconvicted of less serious matters which have been dealt with largely by fines orcommunity work.[9] The Judge referred to the fact that Mr Wharepapa refused to discuss his drugand alcohol issues with the probation officer. The Judge noted Mr Wharepapa's anti-authority and anti-social attitudes, sense of entitlement, externalisation of blame andjustification of his offending. With respect to the breach of the protection order, theJudge considered Mr Wharepapa's explanation, that nothing would stop him seeinghis children, to be inadequate.[10] The Judge noted Mr Wharepapa refused to provide an address for electronicmonitoring in his own region (Hastings).[11] In setting a starting point, the Judge referred to the statutory purposes andprinciples of the Sentencing Act 2002 and the guideline decision of Nuku v R.2 Heoutlined the circumstances of the hearing, noting Mr Wharepapa had dispensed withtwo lawyers and elected to represent himself.[12] On the assault charge, the Judge found the following aggravating factors werepresent:(a) Mr Wharepapa threw a bottle at the head of the victim, the most vulnerablepart of a person's body;(b) it was thrown with substantial force and did cause injury;(c) Mr Wharepapa breached the police safety order and protection order;(d) the victim was vulnerable; and(e) it is highly likely the victim suffered psychological harm.[13] The Judge found these factors justified a starting point at the upper end of bandtwo of Nuku and imposed a starting point of two years' imprisonment.[14] The Judge turned to the aggravating and mitigating factors personal to MrWharepapa. He imposed an uplift of six months (25 per cent) for Mr Wharepapa'sprevious convictions, set off by a three month (12.5 per cent) reduction for MrWharepapa's very late guilty plea.[15] That led to an end sentence of two years and three months' imprisonment.2 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.Principles on appeal[16] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied there hasbeen an error in the imposition of the sentence and a different sentence should beimposed.3 As the Court of Appeal mentioned in Tutakangahau v R quoting the lowercourt's decision, a "court will not intervene where the sentence is within the range thatcan properly be justified by accepted sentencing principles".4 It is only appropriatefor this Court to intervene and substitute its own views if the sentence being appealedis "manifestly excessive" and not justified by the relevant sentencing principles.5SubmissionsAppellant's submissions[17] Mr Forster, for Mr Wharepapa, argued the combination of a starting point thatwas too high and excessive uplift for previous convictions led to a manifestlyexcessive sentence.[18] Mr Forster provided numerous cases as authority for his submission that thestarting point was too high. He submitted the case of Keegan v Police was the mostanalogous.6 Additionally, Mr Forster submitted the Judge erred in his assessment ofaggravating factors of the offence.[19] Mr Forster argued neither a bottle thrown to the head nor the risk of seriousinjury are aggravating factors under the case law. He submitted the two factors areproperly subsumed by the aggravating factor "attack to the head".[20] Mr Forster submitted an uplift of a month or two was all that was needed torecognise the breach of a protection order.3 Criminal Procedure Act 2011, ss 250(2) and 250(3).4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].5 Ripia v R [2011] NZCA 101 at [15].6 Keegan v Police [2020] NZHC 489.[21] Mr Forster strongly contested the aggravating factor of inferred psychologicalharm. He accepted that the harm suffered by a victim is relevant but submittedprocedural fairness would require notice and an opportunity to question, call evidenceor make submissions about any alleged harm. He did, however, acknowledge thatthere is no statutory standard of proof if the Judge asserts a sentencing fact.[22] Mr Forster pointed out Mr Wharepapa had not been to court for six years, andhis last conviction for violence was 13 years ago. He submitted the age of theseconvictions meant no uplift, or at least a lesser uplift should have been imposed. Henoted 25 per cent was a very sizable uplift in the circumstances.Respondent's submissions[23] For the Police, Ms Lancaster argued the Judge's sentence was within range.[24] Ms Lancaster submitted the starting point was reasonable and could have beenhigher. She justified this by reference to the five aggravating factors identified by theJudge including, in particular, the breach of the protection order.[25] Ms Lancaster acknowledged the uplift for previous convictions could beregarded as stern, but submitted it was open to the Judge.Analysis[26] I begin by determining the appropriate starting point for the offending.[27] In Nuku v R, the Court of Appeal considered the appropriate starting pointbands for wounding with intent, aggravated wounding or injury, and injuring withintent.7 In Hurinui v R, the Court of Appeal affirmed that the same methodology isapplicable to assault with a weapon.87 Nuku v R, above n 2.8 Hurinui v R [2014] NZCA 290.[28] The starting point bands in Nuku are assessed by reference to the aggravatingfactors listed in R v Taueki, another decision of the Court of Appeal.9 Two factors arepresent here:(a) attacking the head; and(b) vulnerability of the victim.[29] The victim was vulnerable due to an evident physical and circumstantial powerimbalance. Although the vehicle was between them, she was only a short distancefrom Mr Wharepapa. The bottle must have been thrown with considerable force tobreak as it did. The victim would have had very little time to react and avoid injury.The vulnerability of a victim in a domestic violence case was noted in Taueki as asignificant factor.10 The particular circumstances of this domestic violence and theneed to protect the victim and deter Mr Wharepapa from offending in a similar wayagainst her in the future were particularly important matters in assessing the gravity ofthe offending.[30] In throwing the bottle as he did, Mr Wharepapa had reacted irrationally, withextreme anger, in a way that was most dangerous for the victim, consistent with hisanti-authority and anti-social attitudes, sense of entitlement, externalisation of blameand justification which the pre-sentence report writer said he had revealed during theinterview.[31] I do not treat the use of a weapon as an aggravating factor. Although it is listedin Taueki, it is an element of the offence of assault with a weapon.[32] The Judge also considered the risk of serious injury an aggravating factor. Ifind that factor subsumed by the aggravating factor of "attacking the head". Therewas a risk of serious injury because the bottle was thrown at the victim's head, andthat is what is contemplated by the "attacking the head" aggravating factor.119 R v Taueki [2005] 3 NZLR 372 (CA) at [31].10 At [33].11 At [31].[33] The Judge found it highly likely the victim would have suffered psychologicalharm in addition to the laceration to her head. I acknowledge Mr Forster's submissionthat there was no victim impact statement or chance for Mr Wharepapa to contest this.However, the Judge's comments were a reasonable assumption. Serious psychologicalharm was likely to result, especially so when it was apparent from the summary offacts and the pre-sentence report that the victim had moved from Hastings toChristchurch following her obtaining of a protection order.[34] In any event, the two aggravating factors justify a starting point in band two ofNuku for the assault with a weapon. Relevantly:12Band two: a starting point of up to three years' imprisonment will beappropriate where three or fewer of the aggravating factors listed at [31] ofTaueki are present.[35] The Court of Appeal has said that, in instances such as these, it is appropriatefor the court to either arrive at a starting point for the assault and add an uplift for thebreach of a protection order, or to arrive at a starting point for both offences.13[36] Of the cases Mr Forster helpfully referred to, the most relevant were thosewhere the courts were also concerned with domestic violence and violent partners, andassociated with breaches of protection orders.14 In Goodman v R, the offender hadgrabbed his partner by the throat and thrown her across the room. She got up but hepushed her over. He then head-butted her and pushed her outside. He kicked her inthe shoulder causing her to fall over. She suffered redness, soreness and a cut to herforehead. The starting point of 28 months' imprisonment for charges of assault withintent to injure and male assaults female was approved by the Court of Appeal.[37] Here, there was not sustained violence nor was it premeditated.12 Nuku v R, above n 2, at [38].13 Enoka v R [2012] NZCA 435; Davidson v R [2020] NZCA 230.14 Thompson v Police [2017] NZHC 3039; Samuel v R [2012] NZCA 376; Paraone v Police [2016]NZHC 2549; Goodman v R [2016] NZCA 64; Holdem v R [2014] NZCA 546; Wati v R [2015]NZHC 2064; Still v Police [2019] NZHC 2730; Keegan v Police, above n 6.[38] Mr Wharepapa told the pre-sentence report writer he had not intended thebottle to hit the victim in the head. Despite that, he obviously intended to throw thebottle forcefully at the victim.[39] The courts must firmly respond to protection order breaches. Because of thehigh risk of serious violence from Mr Wharepapa towards the victim, there was aparticular need to deter him from further breaches and to ensure the protection orderwould protect the victim from further violence. There is no tariff for breach of aprotection order, ultimately each case will rest on its own facts.[40] Unfortunately, the Judge was provided with very little information as to thecircumstances which led the Family Court in Hastings to make a temporary protectionorder or as to how Mr Wharepapa had responded to the making of that order.15[41] It was however apparent from the pre-sentence report, and clearly not indispute, that the protection order had been made in Hastings and the victim and theparties' children had moved from Hastings to Christchurch. Mr Wharepapa told thereport writer he had used his gang connections to find where the victim and theirchildren were residing. The report referred to the victim having left the North Islanddue to family harm fears and Mr Wharepapa seemingly being critical of her for doingthis, describing the move as "taking them away from their gang family". There wasinformation as to Mr Wharepapa's attitude and conduct after the breach of protectionorder for which he had to be sentenced. The summary of facts mentioned that, onSaturday 15 February 2020 at about 5.45 pm, Mr Wharepapa was detained followinga family harm incident. The report writer noted it was a condition of his bail that MrWharepapa not enter the South Island. Mr Wharepapa had clearly breached thatcondition and told the probation officer "he had been "arrested seven times" in hisefforts to "see my children"."[42] This was Mr Wharepapa's first sentencing for breaching a protection order. Hewas wanting to see his children. There is little information to suggest he endeavoured15 The District Court is now attempting to avoid this sort of information vacuum through givingeffect to protocols which should mean that, when an offender appears before the District Court ona charge such as these, relevant background information will be obtained from the Family Courtat least where there is a bail application.to remain with the victim after she must have made it clear she did not want to beengaging with him. There is no suggestion he had forced his way into a building wherethe altercation took place. I infer from the summary of facts that they were in factoutside the house where a car was parked when they were arguing.[43] I consider an appropriate starting point for both offences would be 20 months'imprisonment. This is consistent with the starting point adopted for combineddomestic violence and breach of protection order offences in cases I was referred to.[44] This is less than the sentencing Judge adopted. I consider it likely he arrivedat his starting point of 24 months for both offences because of particular concerns forthe safety of the victim, the need to deter Mr Wharepapa from further violence towardsher and to promote respect for the protection order. Those were also likelyconsiderations in his decision to uplift the starting point sentence by six months onaccount of Mr Wharepapa's previous convictions. I now consider the uplift.[45] There was an error in the pre-sentence report. It referred to Mr Wharepapa lastbeing imprisoned for violent offending in 2013. This was repeated by the Judge.However, the last violent offending on his criminal record was in 2007. As Mr Forstersubmitted, until this offending, Mr Wharepapa had not been to prison for 13 years. Hehad been sentenced to community work on two charges of behaving threateningly in2010. His last offence for violence was in 2007 when he was sentenced to ninemonths' imprisonment for assaulting a person with a blunt instrument. Prior to that,he had a raft of convictions for a range of offending, including an assault in associationwith threats to kill or do grievous bodily harm in 1993, wounding with intent toinjure/reckless disregard in 1995 and kidnapping in association with the commissionof a crime with a firearm in 2001. The pre-sentence report indicated Mr Wharepapa'srecord was strongly linked to his gang association. The pre-sentence report howeverrightly recognised that, since 2013, Mr Wharepapa had been on a desistence pathway.His offending since 2007 had not been for offences of violence. The sentencesimposed had been either community work or fines.[46] For reasons carefully and fully detailed under the heading "key considerations"in the pre-sentence report, Mr Wharepapa was assessed as being at a high risk ofreoffending in the context of family harm and was assessed to pose a particularly highrisk of causing future harm to the victim. This was especially so given MrWharepapa's statement that nothing would stop him from seeing his children, and theanger and hostility he directed towards the victim when speaking to the report writerof his belief (not necessarily justified) that she had chosen to live at an address closeto where a rival gang was based.[47] The uplift the Judge arrived at was six months. The Crown accepts this wasstern. An extended period of imprisonment of six months will not however, of itself,protect the victim from further offending when Mr Wharepapa is released from hissentence.[48] The pre-sentence report writer must have recognised this. In the report, thewriter referred to various steps that could be taken, either through a sentence ofintensive supervision or through the imposition of release conditions that mightprovide protection for the victim but enable Mr Wharepapa to have contact with hischildren. The victim remains extremely fearful of Mr Wharepapa but acknowledgesthe love he has for their children. She also acknowledges that their children want tosee him in a way that is safe for their mother. There is a plan for agencies workingwith the family to facilitate safe and supervised access for Mr Wharepapa.[49] In my view, effective longer term protection for the victim is more likely to beachieved through giving effect to those plans than through uplifting the appropriatestarting point sentence for Mr Wharepapa's offending. I do not consider it wasappropriate to add six months to the prison sentence on account of Mr Wharepapa'sprevious offending.[50] Accordingly, I consider the appropriate starting point sentence for MrWharepapa's offending was 20 months' imprisonment.[51] The Judge gave Mr Wharepapa a credit of three months for his guilty pleas.That was generous given the pleas were entered less than a week before the trial wasdue to commence. The discount of three months remains appropriate. That wouldaccordingly result in an end sentence of 17 months' imprisonment.[52] It was not suggested that a sentence of home detention should be substituted.He did not provide Corrections with an address at which such a sentence could havebeen served. Mr Forster advised that Mr Wharepapa is currently serving his prisonsentence in Hawke's Bay.Result[53] Mr Wharepapa's appeal is allowed. The sentence imposed in the District Courtis quashed. In substitution for the original sentence, on each charge he is nowsentenced to imprisonment for 17 months, those sentences to be served concurrently.[54] Mr Wharepapa is to be subject to a release condition that he reside at an addressapproved by a probation officer, and on the further conditions as set out in the pre-sentence report as follows:1. To attend and complete an appropriate Stopping Violence Programme tothe satisfaction of a probation officer. The specific details of theappropriate programme shall be determined by a probation officer.2. Attend and complete any recommended intervention for alcohol and druguse to the satisfaction of the probation officer.3. Not to possess, consume or use any alcohol or drugs not prescribed to him.4. To submit to electronic monitoring in the form of Global PositioningSystem (GPS) technology as directed by a probation officer in order tomonitor his compliance with any condition(s) relating to his whereabouts.5. To comply with the requirements of electronic monitoring and provideaccess to the approved residence to the probation officer andrepresentatives of the monitoring company for the purpose of maintainingthe electronic monitoring equipment as directed by the probation officer.6. Not to leave the North Island and not to travel south of Waipukurau or inany way more than 70 km south of Heretaunga Street, Hastings withoutprior approval of a probation officer.7. Not to associate with or contact the victim, or his children without the priorwritten approval of a probation officer.[55] With time served, Mr Wharepapa may have to be released from that prisonsentence quite soon. As a further release condition, he is not to be released from prisonuntil all steps have been taken to ensure that, on his release, he is subject to electronicmonitoring as ordered.[56] The pre-sentence report referred to the attitude Mr Wharepapa displayed inmuch of his interview with the report writer. The report referred to the aggression hehas displayed towards prison staff and others while on remand in prison. MrWharepapa needs to recognise that, unless he takes steps to alter his thinking, he willbe at risk of causing violence to the victim. She was his partner for around 20 yearsand is the mother of his children. He has said he does not want to hurt her in this way.Mr Wharepapa's children want to be able to see him but only if they know their motherwill be safe. To achieve this, Mr Wharepapa will have to take advantage of theprogrammes and assistance which will be available to him on his release from prison.He must also recognise that, if he does not do this, there will be a risk not just forothers but also for himself in that it could lead to further offending of the sort he hadmoved away from after 2007. Further violent offending would likely lead to a furthersentence of imprisonment which would only make life harder for Mr Wharepapa andhis children. This Court hopes Mr Wharepapa can benefit from the programmesavailable to him on his release from prison.Solicitors:E J Forster, Barrister, HastingsCrown Solicitor, Christchurch.