The Queen v Whata [2008] NZCA 204 (3 July 2008)

Court of Appeal of New Zealand

[Index] [Search] [Download] [Help]

---

The Queen v Whata [2008] NZCA 204 (3 July 2008)

Last Updated: 9 July 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA169/2008 [2008] NZCA 204THE QUEEN

v

MALCOLM WHATA

Hearing: 24 June 2008

Court: Baragwanath, Rodney Hansen and Harrison JJ

Counsel: R Vigor-Brown for Appellant
K J Glubb for Crown

Judgment: 3 July 2008 at 3pm

JUDGMENT OF THE COURT

A The appeal is allowed.

B The sentence of two years and three months imprisonment is quashed.

C A sentence of 18 months’ imprisonment is substituted.

____________________________________________________________________

REASONS OF THE COURT
(Given by Rodney Hansen J)

[1] Mr Whata pleaded guilty in the District Court at Rotorua to one count of assault with intent to rob under s 236(1)(c) of the Crimes Act 1961 and one count of common assault under s 9 of the Summary Offences Act 1981. He was sentenced by Judge J J Weir to a term of two years and three months’ imprisonment. He appeals against the sentence.

The offending

[2] Mr Whata and his co-offender, Justin McFarland, approached the complainant, Maxwell Sutherland, at 6am on 14 September 2007. Mr Sutherland is 58 years of age and was walking his dog in suburban Rotorua. Mr Whata and Mr McFarland had been drinking alcohol since 4pm the previous day. Mr Sutherland saw them and, from their behaviour, suspected they were drunk. He crossed the road to avoid them.
[3] The offenders followed Mr Sutherland. They commented on his dog and demanded he return to where they were. He demurred and hurried on. They then crossed the road and threatened that if he did not give them his dog, they would “kick your head in”. Mr McFarland then approached Mr Sutherland, kicked his dog in the head and punched Mr Sutherland. He was joined by Mr Whata. Together they punched him in the head, shoulders and arms about twelve times.
[4] Mr Sutherland eventually escaped and ran away. When he realised he was not being followed, he back-tracked to see where the offenders were going. They caught sight of him and chased after him. He sought refuge at a Shell service station and asked the forecourt attendant to ring the police. The offenders arrived and renewed their attack, taking turns to punch him in the head for about one minute. The assault came to an end only after a customer at the service station intervened.
[5] Soon afterwards Mr Whata confronted a second man who was walking home wearing headphones. He was unable to hear what Mr Whata said before he was punched in the shoulder. He managed to deflect other blows and Mr Whata soon ran off.
[6] Mr Sutherland’s injuries fortunately were fairly minor. He suffered bruising to his head, forearm and shoulder and a bleeding nose. He was, however, traumatised by the incident. As a former policeman, he said he had been in frightening situations but had seldom, if ever, experienced the fear he felt on this occasion. There is no indication that the second victim was injured.

The appellant

[7] Mr Whata is 30 years old. He has had mental health problems since childhood; he was first seen by a child psychologist at the age of eleven. He had his first serious mental breakdown in 1998 when he was admitted to the acute psychiatric ward of the Henry Bennett Centre. He was then diagnosed as suffering from obsessive compulsive disorder. That diagnosis was changed in 2000 to paranoid schizophrenia. He has been under the care of the community psychiatric services in Rotorua and has been prescribed a variety of anti-psychotics. However, his engagement with mental health services has been erratic. There has been poor compliance with prescribed medication and a continuing pattern of alcohol and drug abuse.
[8] Following his arrest he was remanded for a psychiatric assessment pursuant to s 38(2)(c) of the Criminal Procedure (Mentally Impaired) Act 2003. During his period on remand he experienced a serious episode of delusional beliefs and a strong suicidal ideation. He was transferred to the Henry Bennett Centre where he made a satisfactory recovery. He was found to be fit to stand trial.
[9] Notwithstanding his mental health issues, his substance abuse, and what the psychiatrist who assessed him described as his irregular lifestyle, Mr Whata has been before the Courts only on one previous occasion. That was in 2000 on a charge of wilful damage. He was sentenced to pay reparation.
[10] Over the years he has lived with members of his extended family. Before his sentencing he had been living with his mother and stepfather. They were happy to have him bailed to their address but would not have agreed to him living there if sentenced to home detention.
[11] Mr Whata has been unemployed for most of his adult life, although the psychiatrist reports he had a period of paid employment for a period of two and a half years. The probation officer reported, however, that he is anxious to broaden his horizons and had applied to undertake a course in audio engineering. He impressed the probation officer as someone who was not seeking to find excuses for his behaviour. He described Mr Whata as a “seemingly amiable individual who has no history of violence”, and assessed him as motivated to address the factors that contributed to his offending. He saw him as having insight and remorse and, having regard to his lack of previous relevant offending, to have a moderate to high level of motivation with a low to moderate risk of reoffending.

The sentence

[12] Judge Weir rejected a plea by counsel for both offenders to consider a sentence of community work or home detention. He said the only sentence that could be imposed was one of imprisonment. He referred to the comment of this Court in R v Epiha CA75/98 28 April 1998, that sentences must reflect society’s condemnation of street violence involving gratuitous attacks on innocent members of the public. Judge Weir said the offending in this case came within [59] of the judgment in R v Mako [2000] 2 NZLR 170 where this Court said:

At the other end of the scale would be street robbery by demanding that the victim hand over money or property such as an item of clothing, where a knife or similar weapon is produced or where offenders acting together by bullying or menacing conduct enforce the demand though no actual violence occurs. Depending upon the circumstances the starting point would be between 18 months and three years. Actual physical enforcement might well require a higher starting point.

[13] The Judge identified as aggravating factors the actual violence involved; the presence of threats and intimidation; some degree of premeditation; and the impact on Mr Sutherland. Having regard to these factors, he determined the appropriate starting point to be three years’ imprisonment which he reduced to two years and three months to take account of the pleas of guilty. He sentenced Mr Whata to a concurrent term of one month’s imprisonment on the Summary Offences Act assault charge.

Grounds of appeal

[14] Mr Vigor-Brown submitted that the sentence was manifestly excessive whether approached by reference to the starting point or the end result. He relied on decisions of this Court, including R v Cossens CA196/96 9 July 1996, R v Nikora CA413/96 5 December 1996 and Epiha in which more lenient sentences were imposed in broadly similar circumstances.
[15] Mr Vigor-Brown further contended that the Judge made insufficient allowance for mitigating factors. This was in part as a result of counsel’s oversight; Mr Whata had written letters of apology to the victims and to the Court which were not tendered to the sentencing Judge. It was further submitted that the Judge had given insufficient weight to the part Mr Whata’s mental unwellness played in the offending and, the 2000 conviction apart, his good record. In contrast, his co-offender (who received the same sentence) had a number of previous convictions, including a conviction for assault earlier in 2007.

Discussion

[16] The starting point adopted by the Judge was within the range mandated by Mako, although the lesser charge of assault with intent to rob could have justified a somewhat lower starting point. In defending the starting point, Mr Glubb made the point that the maximum sentence of 14 years imprisonment for the offence of assault with intent to rob under s 236 of the Crimes Act 1961 is the same as for aggravated robbery under s 235. He referred to R v Graham CA37/01 7 June 2001 and R v Hunia CA189/89 23 April 1990, both cases in which sentences of two and a half years imprisonment were imposed on a charge of assault with intent to rob. Starting points of three years and two and a half years respectively were adopted, albeit in Graham for offending that was considerably more serious than in the present case.
[17] These cases tend to confirm that when applying Mako to a charge of assault with intent to rob, care must be taken to have regard to any relevant points of distinction. In particular, an assessment of culpability should generally take into account that the actus reus of theft, essential to a charge of aggravated robbery, will be absent.
[18] The more important issue raised by the appeal, however, is whether the Judge made sufficient allowance for mitigating factors. In reducing the sentence by nine months or twenty-five percent, he made appropriate allowance for an early guilty plea. But there are other factors, particularly Mr Whata’s mental illness and its ramifications, which, in our view, required some further allowance. In R v Wright [2001] 3 NZLR 22 this Court said at [22]:

[Mental illness] is a factor which will inform a just sentence having regard to the character of the disorder and the weight it ought to carry when balancing sentencing objectives. Its character may indicate a lesser degree of moral culpability or a greater subjective impact of penalty. It may suggest a more or a less risk of a repetition of offending, so as to direct particular attention to issues of personal deterrence or public protection. And these considerations must be synthesised with the sentencing elements of denouncing the fact of violence in our society and acknowledging grievous effects on victims.

[19] Mr Whata has clearly struggled with a serious mental condition as well as drug and alcohol abuse for all of his adult life. It is to his credit that, despite these issues, he has lived a generally stable life, punctuated only by the one prior episode of anti-social behaviour.
[20] It must be acknowledged that his most recent offending was very much of his own making. He made a deliberate decision to stop taking his medication so that he could drink alcohol at a party. But all the indications are that he has learned an important lesson. We have already referred to the probation officer’s assessment that he is motivated to address the factors that contributed to his offending. The letters (which were not before the Judge), written well before sentencing and after Mr Whata had been treated at the Henry Bennett Centre, are a compelling testament to his insight into the causes of his offending and appeal as genuine expressions of remorse. They provide support for the probation officer’s assessment of the risk of reoffending. Some lesser emphasis on personal deterrence and the need for public protection is justified.
[21] The cases of Epiha, Nikora and Cossens, all of which are in the schedule to Mako as providing further indications of sentencing levels (see [61]), lend support to the view that a lesser sentence than that imposed by the Judge would sufficiently mark the seriousness of the offending while giving appropriate recognition to mitigating factors.
[22] In Nikora, a case of aggravated robbery in which two young women had their heads smashed against a wall, a sentence of two years imprisonment was replaced by one of 18 months. The Court took into account the 18-year-old appellant’s unhappy background and personal circumstances in concluding that a lesser sentence would be sufficient to adequately mark the seriousness of the offence and the need for deterrence and the interests of the safety of the public.
[23] In Epiha, a street robbery in Rotorua in which a fence paling was used as a weapon, a sentence of two years was reduced to 18 months. Among the mitigating factors taken into account were that the appellant was 18 years of age, a first offender and had expressed genuine remorse for his wrongdoing.
[24] Cossens was a Solicitor-General’s appeal against a sentence of one year’s imprisonment on a charge of aggravated robbery in which the victim was felled by a punch and repeatedly kicked about the head and body. This Court held the lowest available starting point was two and a half years with a prompt plea of guilty warranting a discount of six months. A sentence of two years imprisonment was substituted.
[25] In our judgment, Mr Whata’s personal circumstances, in particular his mental health, warrant some greater discount than the Judge, on the information available to him, felt able to allow. We fix the appropriate sentence at 18 months.

Result

[26] The appeal is allowed. The sentence of two years and three months imprisonment is quashed. In its place, a sentence of 18 months’ imprisonment is substituted. Home detention is not an option for the remainder of the sentence given Mr Whata’s mother’s refusal to consent under s 80A(2) of the Sentencing Act.

Solicitors:
R Vigor-Brown, Rotorua for Appellant
Crown Solicitors, Auckland