Whale v R [2011] NZCA 216 (24 May 2011)

Last Updated: 2 June 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA38/2011 [2011] NZCA 216

BETWEEN SHANE RANGIERA WHALE Appellant

AND THE QUEEN Respondent

Hearing: 13 April 2011

Court: O'Regan P, Glazebrook and Harrison JJ

Counsel: A R Laurenson for Appellant C A Brook for Respondent

Judgment: 24 May 2011 at 10.30 am

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal is granted.
2. The appeal is allowed.

100. The sentence of three years and nine months imprisonment imposed in the High Court for the charge of wounding with intent to cause grievous bodily harm is quashed and replaced by a sentence of three years and five months imprisonment. The concurrent sentence of 18 months imprisonment for the charge of injuring with intent to injure remains unchanged.

_______________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

Introduction

[1] Mr Whale was sentenced to a term of imprisonment of three years and nine months by Potter J in the High Court at New Plymouth, having pleaded guilty to one count of wounding with intent to cause grievous bodily harm and one count of injuring with intent to injure.[1] He appeals against that sentence. The grounds of appeal initially advanced were that the appeal was manifestly excessive and that it lacked parity with the sentence imposed on a co-offender, Mr Maxwell. At the hearing of the appeal it became clear that the argument that the sentence was manifestly excessive was solely based on the contention of a lack of parity and that the parity was the sole issue before us.

Extension of time

[2] The notice of appeal was filed three weeks out of time. Counsel for the Crown, Mrs Brook, accepted that there was no prejudice to the Crown and in the circumstances we grant an extension of time for the filing of the notice of appeal.

The offending

[3] Mr Whale was one of eight offenders who participated in a violent incident in Stratford on 10 October 2009. He and Mr Maxwell were convicted as principal offenders for attacking the two victims, while six others were convicted as parties to their offending. The attack was apparently an act of retribution for an earlier incident involving the victims. The evidence was that a group of up to 20 people arrived at the victims’ address, including the eight who were ultimately charged. Mr Maxwell and Mr Whale were at the forefront of the group and involved in the attack on the two victims. The attack involved one victim being punched and then, after he fell to the ground, being punched again and kicked, as well as being further attacked as he struggled to his feet. The second victim was struck when he tried to intervene on behalf of the first victim. The first victim’s partner and sister were also assaulted as they tried to intervene, but those assaults were not the subject of charges. Considerable property damage was also caused.
[4] In addition to the charges on which they were ultimately convicted, Mr Maxwell and Mr Whale were also charged with aggravated burglary. The aggravating factor was that they were said to be in possession of a chain. However, the Crown witnesses did not come up to brief on that aspect of the Crown case, and the Crown did not oppose s 347 discharges in relation to the aggravated burglary charges at the trial. Once those discharges were granted, Mr Maxwell and Mr Whale pleaded guilty to the wounding and injuring charges.
[5] In sentencing Mr Whale, Potter J adopted a starting point of four years and three months imprisonment. She added an uplift of three months for Mr Whale’s previous “lamentable” conviction history, and allowed a discount of three months for his remorse and for his acceptance of his part in the offending. She then allowed a further discount of six months (or 12 per cent) for Mr Whale’s guilty plea, which, as noted earlier, came during the trial. She noted that this was a lower discount than that which had been provided to Mr Maxwell, but said that this was because, unlike Mr Maxwell, Mr Whale had not previously indicated a willingness to plead guilty. The end sentence was a sentence of three years and nine months imprisonment on the lead charge of wounding with intent to cause grievous bodily harm and a concurrent sentence of 18 months imprisonment on the injuring with intent to injure charge.
[6] Mr Maxwell was sentenced at the same time as Mr Whale. In his case, the Judge adopted a starting point of four years and six months imprisonment. She applied an uplift of six months for aggravating factors, comprising Mr Maxwell’s very serious history of prior offending, including violent offending, and the fact that he had absconded to avoid arrest. In relation to Mr Maxwell’s guilty plea, the Judge said:[2]

Mr Maxwell had indicated his willingness to plead guilty at callover to the two charges to which he ultimately entered guilty pleas and in respect of which he is to be sentenced. The basis of his entering guilty pleas at that time was that he was not carrying the chain. The Crown did not accept the pleas on that basis and the matter proceeded to trial until a point when the Crown evidence failed to establish that Mr Maxwell was carrying a chain. When that situation became clear Mr Maxwell entered guilty pleas to both charges.

[7] The Judge considered that the law that should be applied was the decision of this Court in R v Hessell[3] and that, in the circumstances fairness required that a full discount of 33 per cent be allowed. This led to an end sentence of three years and four months imprisonment on the lead charge of wounding with intent to cause grievous bodily harm, with a concurrent 18 months sentence for injuring with intent to injure.

Offer to plead guilty

[8] The basis of Mr Whale’s appeal is that he made a similar offer to that made by Mr Maxwell and therefore should have received the same discount for his guilty plea as Mr Maxwell did. Our consideration of that submission requires some analysis of what actually happened in relation to Mr Maxwell, and in relation to Mr Whale.
[9] We were provided with two affidavits from the counsel who had been acting for Mr Whale until just before the trial, Mr Hannam. He said he had been aware that Mr Maxwell’s trial counsel, Mr Brosnahan, had made a plea offer to the Crown and that he (Mr Hannam) had verbally made the same offer to the Crown prosecutor, Mr Marinovich.
[10] We gave leave for further material to be filed after the hearing when it became obvious that there was insufficient clarity as to what offers had been made and at what time. Ultimately Crown counsel, Mrs Brooks, filed an affidavit from Mr Marinovich. This provided considerable detail about what offer had been made by Mr Brosnahan on behalf of Mr Maxwell, but Mr Marinovich could not recall any discussion with Mr Hannam on the topic. Mr Laurenson filed submissions in reply to this material, emphasising that Mr Hannam had made a verbal offer to Mr Marinovich and would have made a further offer if there had been any prospect of its being accepted.
[11] The written material now before the Court establishes the following in relation to Mr Maxwell:

(a) On 11 May 2010, his trial counsel, Mr Brosnahan, proposed to the Crown that Mr Maxwell would plead guilty to count 2 (wounding with intent to cause grievous bodily harm) and count 3 (injuring with intent to injure) if these charges were amended to wounding/injuring with intent to injure, rather than with intent to cause grievous bodily harm and if the Crown offered no evidence on count 1 (the aggravated burglary charge). This was confirmed in a letter dated 14 May 2010.

(b) The Crown rejected this offer but Mr Brosnahan then raised the possibility that Mr Maxell would plead guilty to counts 2 and 3 as they were currently framed (ie, the counts on which he was subsequently convicted), but on the basis that the Crown accepted that Mr Maxwell did not have a chain, and on the basis that the Crown did not proceed with count 1.

(c) There was delay in the Crown responding to this, but ultimately the Crown rejected the offer and decided to proceed on all counts in the indictment (ie, it proceeded on the basis that it could prove that Mr Maxwell had a chain).

[12] Potter J, apparently with the agreement of the Crown at sentencing, equated this offer with an offer to plead guilty to the counts on which Mr Maxwell was actually convicted, and on the basis on which he was convicted (ie, that there was no proof he was in possession of a chain). That was the basis on which she gave a full discount for guilty plea. In her submissions after the hearing, Mrs Brooks argued, contrary to the position apparently taken by the Crown at sentencing, that Mr Maxwell should not have been given a discount of this magnitude. We consider that it was open to the Judge to give a full discount on the approach outlined in the decision of the Supreme Court in Hessell,[4] although we accept it was problematic under this Court’s decision in Hessell.
[13] The situation in relation to Mr Whale is quite different. Mr Hannam deposed that Mr Whale had also offered to plead guilty on the basis that he did not enter the property with a weapon, namely the chain. He referred to a conversation which he said involved Mr Brosnahan and the prosecutor at a sentencing indication hearing in early May 2010. He said that during that discussion he had told the prosecutor that if the proposal made by Mr Brosnahan (involving the reduction of the wounding/injuring charges to wounding/injuring with intent to injure) was made to Mr Maxwell, then Mr Whale would also seek the same deal and would then plead guilty to those charges on the basis that the aggravated burglary charge would not be pursued. In his second affidavit he accepted that this discussion could not have occurred at the sentencing indication hearing, but suggested that it occurred at another time. He said he was privy to the discussion Mr Brosnahan was having with the Crown solicitor and that there was discussion of dropping the aggravated burglary charge. He also said that had the Crown accepted the offer put forward by Mr Brosnahan on behalf of Mr Maxwell, then Mr Hannam would have put forward a similar offer on behalf of Mr Whale.
[14] There are some difficulties with this. First, Mr Hannam’s memory of events is sketchy at least as to timing, and Mr Marinovich does not recall a discussion, though he accepts it may have occurred. Second, Mr Hannam’s discussion appears to have been on the basis of Mr Brosnahan’s first offer, namely that Mr Maxwell would plead to lesser charges of wounding/injuring with intent to injure, rather than a charge of wounding with intent to cause grievous bodily harm. It does not address Mr Brosnahan’s later offer that Mr Maxwell would plead to counts 2 and 3 as charged (including the grievous bodily harm charge), but on the basis that the Crown accepted that he did not have a chain in his possession. Third, there is a clear documentary record of the offer made on behalf of Mr Maxwell, but nothing similar in relation to Mr Whale. As Mr Whale is relying on this Court’s decision in Hessell, it is worth noting what this Court said about this very situation in that decision:[5]

Since this Court tentatively started using the English approach of a sliding scale dependent on when the defendant pleaded guilty or indicated a willingness to plead guilty to a specified offence, we have had defendants arguing that, although, say, a guilty plea was not entered until the week before trial, defence counsel had broached that possibility with the officer-in-charge or Crown counsel at the time of the preliminary hearing. Frequently at sentencing this has led to dispute, as Crown counsel appearing at sentencing has known nothing about the alleged earlier indication of a willingness to plead guilty. It can all be rather unseemly, with assertion and counter-assertion from the Bar. To overcome this, we strongly recommend that, if an offender does not wish to plead guilty to the offence with which he or she is charged but is prepared to plead guilty to a lesser (specified) offence, he or she should communicate that willingness in writing to the prosecutor with a copy to the Court. There will then be no dispute as to the defendant’s stance and when that stance was adopted.

[15] On the other hand, the Crown does not dispute that Mr Hannam may have made the offer to which he referred. We accept Mr Hannam’s word for that. That offer did, in substance, amount to an offer to plead guilty to injuring and wounding, on the basis that Mr Whale did not have a chain. In substance, that was the outcome after the aggravated burglary charge was dismissed and Mr Whale pleaded guilty to the other charges. Although the charges for which Mr Whale was ultimately convicted were more serious than those to which he offered to plead guilty, they were similar. And the outcome was that Mr Whale was not convicted of aggravated burglary and was not found to have been in possession of a chain.
[16] In her supplementary submissions, Mrs Brook addressed the question as to whether the difference in position of Mr Maxwell and Mr Whale arose from counsel incompetence. That was not a suggestion that was made by Mr Laurenson (and in his written submissions after the hearing he disavowed this). We do not have any basis for making a finding that Mr Hannam’s actions or lack of them amounted to incompetence. There is no allegation to that effect by Mr Whale. Mrs Brooks’ argument was that Mr Hannam’s approach may well have been a legitimate strategy on behalf of Mr Whale, but we do not have any evidence providing a basis for a finding to that effect either.

Evaluation

[17] We are unable to accept Mr Laurenson’s submission that Mr Whale was entitled to the same discount for a guilty plea as Mr Maxwell. Their positions are not the same, as the above discussion demonstrates. But we think Mr Whale was entitled to some credit for his offer to plead to some charges, given the similarity between what was offered and what the ultimate outcome was. In essence his offer was to admit guilt for wounding and injuring without the use of a chain as a weapon (or any other weapon) and that is what he was ultimately convicted of. We accept that his offer was to plead to wounding with intent to injure not wounding with intent to cause grievous bodily harm, but given the absence of any weapon the wounding charge must have been at the lower end of the range for grievous bodily harm offending and the Judge’s sentencing approach shows that that is how she saw it.
[18] Potter J gave Mr Whale a 12 per cent credit for the guilty plea entered during the trial, on top of a three month deduction for factors that included remorse. We consider that 20 per cent would more fairly reflect the plea actually entered and the additional factor of the early plea offer, for which Potter J did not give any credit. From the adjusted starting point of four years and three months, this would yield an end sentence of three years and five months. However, we accept that the position as fully explained in the submissions and evidence on appeal was not put properly before the Judge, and we emphasise that we are interfering with the sentence on that ground alone.

Result

[19] The appeal is allowed and the sentence imposed in the High Court is reduced from three years and nine months imprisonment to three years and five months imprisonment.

Solicitors:
Govett Quilliam, New Plymouth for Appellant
Crown Law Office, Wellington for Respondent

---

[1] R v Maxwell HC New Plymouth CRI-2009-012-1570, 6 December 2010.
[2] At [34].
[3] R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298.
[4] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
[5] At [43].