WHAREWHITI v R [2022] NZCA 629

WHAREWHITI v R [2022] NZCA 629 [15 December 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA342/2022[2022] NZCA 629BETWEEN TEWE-LANCE TOKOTAHEWHAREWHITIApplicantAND THE KINGRespondentCourt: French, Thomas and Mallon JJCounsel: J M Grainger for ApplicantC Ure for RespondentJudgment:(On the papers)15 December 2022 at 2.30 pmJUDGMENT OF THE COURTA The application for leave to appeal is granted.B The appeal is to be allocated an urgent oral hearing before a divisionalcourt at the earliest available date in February 2023.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Mr Wharewhiti was convicted in the District Court of aggravated robbery andsentenced to a term of imprisonment of two years and one month.1 He seeks leave to1 R v Wharewhiti [2022] NZDC 5244 [Sentencing notes].appeal his sentence. Leave is required because the proposed appeal would be a secondappeal, he having already unsuccessfully appealed to the High Court.2[2] In a minute dated 19 August 2022, Courtney J directed that the issue of leaveshould be determined separately from the proposed substantive appeal and that theleave application should be decided on the papers.Background[3] Mr Wharewhiti is a patched member of the Mongrel Mob. The victim of theaggravated robbery was a patched member of a rival gang theBarbarian Stormtroopers.[4] On the evening of 21 August 2021 Mr Wharewhiti and two other associatesMessrs Eru and Buchanan came across the victim who was alone in a carpark workingon a motorcycle. The three men approached the victim, and attacked him in an effortto remove his patch. Mr Wharewhiti along with Mr Eru struck the victim repeatedlywith punches and kicks aimed at the head and body. Mr Buchanan kept watch holdinga glass bottle by its neck like a club.[5] Associates of the victim arrived at the scene and attempted to thwart the attackby driving their vehicle towards the attackers. At this point Mr Wharewhiti andMr Eru were dragging the victim along the ground while continuing to strike him andremove his patch. After several more blows to the head and body, Mr Buchanan hitthe victim with the bottle and the patch was removed. The three then fled the scene.[6] When spoken to by the police, Mr Wharewhiti denied any involvement in theassault. The other two made no comment.[7] Following a sentence indication, both Mr Wharewhiti and Mr Buchanansubsequently pleaded guilty to the charge of aggravated robbery.32 Wharewhiti v R [2022] NZHC 1367 [High Court decision].3 The Judge declined to give a sentencing indication for Mr Eru because he was facing anotherunrelated serious charge.Sentencing in the District Court[8] Due to illness Mr Buchanan and Mr Wharewhiti were not sentenced at the sametime.[9] In sentencing Mr Wharewhiti on 25 March 2022, Judge O'Driscoll adopted astarting point of three years and a half years' imprisonment, relying on the decision ofthis Court in R v Mako.4 He then reduced that starting point by 17 months on accountof personal mitigating factors, namely:(a) a three-month deduction for time spent on electronically monitored bail(EM bail);5(b) a six-month deduction for matters contained in a cultural report relatingto Mr Wharewhiti's background and upbringing which it was acceptedwas causally linked to his gang membership and hence his offending;6and(c) an eight-month deduction for the guilty plea.7[10] Those adjustments resulted in an end sentence of two years and onemonth's imprisonment.8[11] Mr Buchanan was also sentenced by Judge O'Driscoll.9 His sentencing tookplace a week later. The Judge adopted the same starting point of three and a halfyears' imprisonment but in Mr Buchanan's case applied an uplift of three months onaccount of the fact that the aggravated robbery occurred while Mr Buchanan was onbail.10 The Judge then applied discounts of three months for time spent on EM bail,ten months for matters in the cultural report and eight months for the guilty plea.114 Sentencing notes, above n 1, at [29], citing R v Mako [2000] 2 NZLR 170 (CA).5 At [39].6 At [40].7 At [41].8 At [42].9 R v Buchanan [2022] NZDC 5742.10 At [22].11 At [23]–[26].[12] Those reductions brought the sentence down to 24 months which meantMr Buchanan was eligible for home detention. The Judge imposed a sentence ofnine months' home detention and 200 hours community work together with a judicialmonitoring condition.12[13] The Judge concluded his sentencing notes by saying:[34] I am fully conscious and aware that your co-offender, Mr Wharewhitiwas sentenced to imprisonment and was not granted home detention. Thatwas because he did not come within the auspices of a short term sentence ofimprisonment. I am also aware that he has filed an appeal to the Court ofAppeal and I have no doubt that your case now will be put before the Court ofAppeal and there will be a disparity argument advanced in the Court ofAppeal, but I have given you a greater discount than I gave Mr Wharewhitibecause of the matters that are set out in your cultural report. I would invite,if there is any appeal, for the two cultural reports to be examined because it ison that basis that I brought your sentence down to a period where I couldconsider home detention.The appeal in the High Court[14] Mr Wharewhiti's appeal was heard by Mander J. The grounds of appeal werethat the starting point was too high and that discounts should have been allowed forprovocative conduct on the part of the victim and for Mr Wharewhiti's youth, he beingaged 22 at the time of the aggravated robbery.[15] The Judge held that having regard to the aggravating features of the offending— an extended group attack rooted in gang rivalry and involving actual violenceincluding the use of a weapon to strike the victim's head — the starting point of threeand a half years imprisonment while perhaps stern was within range.13 He also heldthat the District Court Judge had been correct to reject a submission that a racist epithetused by the victim amounted to operative provocation.14[16] As regards the issue of a discount for youth, Mander J noted there is nopresumption in favour of such a discount which will depend on the nature of theoffending and the circumstances of the particular offender. The offending in this case12 At [28]–[32].13 High Court decision, above n 2, at [9]–[11].14 At [14].was, the Judge said, relatively serious, and the violence occurred not because of anyyouthful impulse but because of deliberate confrontation.15[17] The Judge went on to say that one of the rationales for reducing a sentencebecause of an offender's youth is the potential for rehabilitation and the concern thatprison will expose the young person to the influence of hardened criminals and gangmembers. However, although there were aspects of Mr Wharewhiti's personalsituation which were in his favour such as a good employment record, family supportand relatively minor previous offending, he remained committed to the gang. Thatmeant, in the Judge's view, that he will allow his conduct to be regulated by the gang'snorms and thus his rehabilitative prospects (whether considered on the basis of his ageor more generally) appeared limited.16[18] The Judge concluded that the District Court's refusal to extend credit for youthwas not an error and dismissed the appeal.17[19] In dismissing the appeal, Mander J did not have the opportunity to consider thedifferent sentencing outcome for Mr Eru. That was because the latter's sentencingonly took place some four months later in October 2022.Sentencing of Mr Eru[20] At the time of Mr Eru's sentencing, he was part way through serving aneight-month sentence of home detention for an unrelated wounding offence. Thesentencing Judge, Judge Farish, was persuaded to follow a recommendation in thepre-sentence report to cancel the home detention sentence and re-impose a sentenceof community detention and intensive supervision. The Judge then imposed a sentenceof six months' community detention for both the wounding offence and the aggravatedrobbery together with a sentence of 18 months' intensive supervision.[21] In imposing that sentence, the Judge described the pre-sentence report as"glowing" and "one of the most positive" she had ever seen. Mr Eru had handed in15 At [19].16 At [21]–[22].17 At [22] and [24].his gang patch, successfully completed programmes, maintained sobriety and done"everything that everyone wanted [him to do]". It is clear the Judge considered he hadmade significant progress in turning his life around.The application for leave[22] In order to obtain leave to appeal to this Court, Mr Wharewhiti must persuadeus of one of two things: either that the proposed appeal involves a matter of general orpublic importance or that a miscarriage of justice may have occurred or may occurunless the appeal is heard.18[23] The focus of the proposed appeal is the issue of a discount for youth and inparticular the issue of what is the correct approach to determining youth discounts foryoung gang members. That is said to be a question of general or public importanceespecially given the increasing numbers of young people in gangs.[24] Counsel also submits that the failure of both the District Court and theHigh Court to allow for Mr Wharewhiti's youth and rehabilitation potential has createdthe risk of a miscarriage of justice. It has resulted in a manifestly excessive sentenceand led to a young man who would otherwise be eligible for home detention beingimprisoned. Counsel further contends that although parity in sentence is not directlyengaged, the rationale advanced for declining a discount for Mr Wharewhiti'srehabilitation potential (gang membership) is so inconsistent with the reasoningadopted in relation to Mr Buchanan that the objective bystander would think thatsomething has gone wrong. Mr Buchanan who was aged 26 at the time of the attackalso remains committed to the gang.Analysis[25] The test for obtaining leave to bring a second appeal is a high one. We arehowever persuaded in the circumstances of this case that it has been met on the basisthat a miscarriage of justice may have occurred.18 Criminal Procedure Act 2011, s 253(3). See McAllister v R [2014] NZCA 175, [2014] 2 NZLR764.[26] Mr Wharewhiti was the youngest of the three offenders and the only one ofthem to be sentenced to imprisonment. His role in the offending was not more seriousand arguably slightly less. He has a very limited criminal history, has workedcontinuously since the age of 16 and has a supportive family.[27] In our view there is an argument worthy of ventilation on appeal that theHigh Court placed excessive weight on one statement in the pre-sentence report aboutbeing committed to the gang at the expense of other positive material. Material thatarguably should have justified discounts for rehabilitative prospects and youth therebyrendering Mr Wharewhiti eligible to be considered for home detention.[28] We have therefore decided to grant leave to appeal.Outcome[29] The application for leave to appeal is granted.[30] The appeal is to be allocated an urgent oral hearing before a divisional court atthe earliest available date in February 2023.Solicitors:Public Defence Service, Christchurch for ApplicantCrown Law Office, Wellington for Respondent