WHAREWHITI v R [2023] NZCA 29

WHAREWHITI v R [2023] NZCA 29 [24 February 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA342/2022[2023] NZCA 29BETWEEN TEWE-LANCE TOKOTAHIWHAREWHITIAppellantAND THE KINGRespondentHearing: 16 February 2023Court: French, Ellis and Churchman JJCounsel: J M Grainger for AppellantR K Thomson for RespondentJudgment: 24 February 2023 at 10.30 amJUDGMENT OF THE COURTA The appeal is allowed. The sentence of two years and one month'simprisonment is quashed and replaced with a sentence of intensivesupervision for 12 months subject to the following special conditions:(a) To attend an assessment for Community Corrections DepartmentProgramme as directed by a Probation Officer. To attend andcomplete any counselling, treatment or programme asrecommended by the assessment as directed by and to thesatisfaction of a Probation Officer;(b) To attend and complete an appropriate programme, counsellingor treatment to address offence related offending to thesatisfaction of a Probation Officer. The specific details of theappropriate programme shall be determined by a ProbationOfficer; and(c) Not to associate or have any contact with Mongrel Mob membersor associates unless prior approved by a Probation Officer.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Following a guilty plea, Mr Wharewhiti was convicted in the District Court ofaggravated robbery and sentenced by Judge O'Driscoll to a term of imprisonment oftwo years and one month.1[2] He appealed his sentence to the High Court but the appeal was dismissed byMander J.2 Mr Wharewhiti then sought and obtained leave to appeal to this Court.3Background[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 was in the company of twoother patched members of the Mongrel Mob, his older brother Mr Eru and aMr Buchanan. They came across the victim who appeared to be alone in a carparkworking on a motorcycle. The three men approached the victim and attacked him inan effort to remove his patch. Mr Wharewhiti along with Mr Eru struck the victim1 R v Wharewhiti [2022] NZDC 5244 [Sentencing notes].2 Wharewhiti v R [2022] NZHC 1367 [High Court decision].3 Wharewhiti v R [2022] NZCA 629 [Court of Appeal leave decision].repeatedly with punches and kicks aimed at the head and body. Mr Buchanan keptwatch holding a 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 a charge of aggravated robbery. The Judge declined togive a sentencing indication to Mr Eru because he was facing trial on another unrelatedcharge of wounding with intent. That charge arose out of an incident that had takenplace in July 2020 when Mr Eru had punched someone in the face numerous timescausing extensive facial injuries. These included serious issues relating to the victim'seyes, requiring ongoing surgery.Sentencing of Mr Wharewhiti and Mr Buchanan in the District Court[8] Due to illness, Mr Buchanan and Mr Wharewhiti were not sentenced at thesame time.[9] In sentencing Mr Wharewhiti on 25 March 2022, Judge O'Driscoll adopted astarting point of three and a half years' imprisonment, relying on the decision of thisCourt in R v Mako.4 He then reduced that starting point by 17 months on account ofpersonal mitigating factors, namely:(a) a three-month deduction for time spent on electronically monitored bail(EM bail);54 Sentencing notes, above n 1, at [29], citing R v Mako [2000] 2 NZLR 170 (CA).5 At [39].(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 one month'simprisonment.8[11] Mr Buchanan who like Mr Wharewhiti remained committed to the gang wasalso sentenced by Judge O'Driscoll.9 His sentencing took place a week later. TheJudge adopted the same starting point of three and a half years' imprisonment but inMr Buchanan's case applied an uplift of three months on account of the fact that theaggravated robbery occurred while Mr Buchanan was on bail.10 The Judge thenapplied discounts of three months for time spent on EM bail, ten months for mattersin the cultural report and eight months for the guilty plea.11[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,6 At [40].7 At [41].8 At [42].9 R v Buchanan [2022] NZDC 5742.10 At [22].11 At [23]–[26].12 At [28]–[32].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.Mr Wharewhiti's appeal in the High Court[14] The grounds of appeal were that the starting point was too high and thatdiscounts should have been allowed for provocative conduct on the part of the victimand for Mr Wharewhiti's youth, he being aged 22 at the time of the aggravated robbery.[15] Mander J 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.15 The offending in thiscase was, the Judge said, relatively serious, and the violence occurred not because ofany youthful impulse but because of deliberate confrontation.16[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.17 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.18 Thatmeant, in the Judge's view, that he would allow his conduct to be regulated by the13 High Court decision, above n 2, at [9]–[11].14 At [13].15 At [19].16 At [19].17 At [21].18 At [21]–[22].gang's norms and thus his rehabilitative prospects (whether considered on the basis ofhis age or more generally) appeared limited.19[18] The Judge concluded that the District Court's refusal to extend credit for youthwas not an error and dismissed the appeal.20[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] It will be recalled that Mr Eru was facing trial on another unrelated charge ofwounding with intent. He asked for a sentence indication in relation to both that chargeand the aggravated robbery charge and was told the starting point for both would be aterm of imprisonment of around six and a half years. He did not accept the sentenceindication but he did later plead guilty to the wounding with intent charge. On thatcharge, he was sentenced by Judge Farish to eight months' home detention.21Judge Farish was persuaded not to impose a custodial sentence because of a positivepre-sentence report. Mr Eru had, as the Judge later explained when sentencing himon the aggravated robbery charge, done "very, very well" on electronically monitoredbail and had made a serious commitment to step away from the gang and live a betterlifestyle.22[21] When Mr Eru was about halfway through the home detention sentence, heasked for a sentence indication on the aggravated robbery charge.[22] The pre-sentence report in relation to the aggravated robbery charge was evenmore positive than the earlier one. It was described by Judge Farish as "glowing" and"one of the most positive" she had ever seen.23 Mr Eru had handed in his gang patch,successfully completed programmes, maintained sobriety and done, the Judge said,19 At [22].20 At [22] and [24]–[25].21 R v Eru [2022] NZDC 6739.22 R v Eru DC Christchurch CRI-2021-009-6506, 13 October 2022 at [4].23 At [6]."everything that every[one] wanted [him to do]."24 In light of the report, Judge Farishwas persuaded to cancel the home detention sentence and impose a sentence of sixmonths' community detention for both the wounding offence and the aggravatedrobbery together with a sentence of 18 months' intensive supervision.25The appeal before us[23] In granting leave to bring this second appeal, this Court was persuaded that inthe somewhat unusual circumstances a miscarriage of justice may have occurred.26[24] In particular, the leave Court considered there was an argument worthy ofventilation that the High Court had placed excessive weight on one statement in thepre-sentence report about being committed to the gang at the expense of other positivematerial.27 Material that arguably should have justified discounts for rehabilitativeprospects and youth thereby rendering Mr Wharewhiti eligible to be considered forhome detention.28[25] 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 seriousthan the others, while unlike them his criminal history was limited. He did not haveany alcohol or drug issues and had remained offence free for the eight months he hadbeen on bail. He had worked continuously for the same employer since the age of 16(some seven years) and was regarded as a loyal and hardworking employee. He hada supportive family and expressed remorse about the impact his offending had had onthem, in particular his mother whose distress at his conduct he described asheartbreaking. He expressed the wish to be a good role model for his younger siblings.[26] No doubt in light of those matters, the pre-sentence report had recommendeda sentence of intensive supervision and community detention. The writer expressedthe view that this would enable Mr Wharewhiti to participate in a rehabilitative24 At [3].25 At [11]–[12].26 Court of Appeal leave decision, above n 3, at [25].27 At [27].28 At [27].treatment pathway, establish pro social links within the community and continue tosupport the possibility of ongoing employment.[27] At the hearing before us, Ms Thomson for the Crown appropriatelyacknowledged that Mr Wharewhiti was in a difficult position and it wasunderstandable that he might feel hard done by. However, in her submission, therehad been no error in the Courts below. Discounts that were justifiably available to theother co-offenders were simply not available to Mr Wharewhiti and therefore thedifferent outcomes were reconcilable and justified. She further submitted that unlikethe other two, Mr Wharewhiti had made no particular steps towards rehabilitation.[28] As will be apparent, there is some force in Ms Thomson's submissions.[29] In our view this appeal essentially turns on an assessment of Mr Wharewhiti'sprospects for rehabilitation. While this was considered by both the High Court andthe District Court, some significant references in the cultural report appear to havebeen overlooked. In particular, it emerges from the report that the two brothers arevery close, and that they did "everything together" including joining the gang at thesame time following the death of their father. Their mother to whom Mr Wharewhitiis also close is described as anti-gang. She told the report writer about the influenceMr Eru has over his younger brother and suggested their close relationship was a factorin Mr Wharewhiti joining the gang. In the past when she had urged Mr Wharewhitito leave the gang, his response was to say he could not leave his brother.[30] The mother also reported that Mr Eru who at the time was living with her onhome detention had taken off his patch and that this would set a positive example forMr Wharewhiti. She was fearful that a prison sentence would only push the latterfurther into the gang's arms and was implicitly fearful that trying to leave the gangwhile in prison would be problematic.[31] In fairness to the Courts below, while that information was before them, it hascome into sharper focus for us because unlike those Courts, we have had the benefitof Mr Eru's sentencing.[32] We note too that it appears Mr Wharewhiti joined the gang in around 2014.Despite this he had a stable work record and prior to 2021 had only one conviction forcareless use of a vehicle. The offending escalated in 2021 which coincided with thebreakdown of a relationship. As he acknowledged himself, that led to a deteriorationin his behaviour due to associating more heavily with the gang in the absence of thesupport he had previously enjoyed. The offending and its consequences was howeveralso said to have provided a wakeup call for him. He expressed a strong determinationto avoid crime in the future and to turn his life around for the sake of his family andin particular his mother. He also expressed a willingness to participate in rehabilitationprogrammes.[33] This and the other matters identified at [25] above was all material which inour view justified greater discounts for rehabilitative prospects and youth than thosethat were given. Only a slight increase in the discounts would have renderedMr Wharewhiti eligible to be considered for home detention, a sentence which weconsider is the sentence that should have been imposed.[34] Time has however of course moved on. Mr Wharewhiti has already servedclose to 11 months of his prison sentence, making the imposition of a home detentionsentence now inappropriate. Instead we have decided the sentence that best takesaccount of the time he has already served while facilitating his rehabilitation prospectsis an intensive supervision order of 12 months duration which is subject to thefollowing special conditions:(a) To attend an assessment for a community corrections departmentprogramme as directed by a probation officer. To attend and completeany counselling, treatment or programme as recommended by theassessment as directed by and to the satisfaction of a probation officer.(b) To attend and complete an appropriate programme, counselling ortreatment to address offence related offending to the satisfaction of aprobation officer. The specific details of the appropriate programmeshall be determined by a probation officer.(c) Not to associate or have any contact with Mongrel Mob members orassociates unless prior approved by a probation officer.Outcome[35] The appeal is allowed. The sentence of two years and one month'simprisonment is quashed and replaced with a sentence of intensive supervision for12 months subject to special conditions set out at [34] above.Solicitors:Public Defence Service, Christchurch for AppellantCrown Law Office, Wellington for Respondent