Wharewhiti v R [2022] NZCA 629 (15 December 2022)

Last Updated: 19 December 2022

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA342/2022 [2022] NZCA 629

	BETWEEN	TEWE-LANCE TOKOTAHE WHAREWHITI Applicant
	AND	THE KING Respondent

Court:	French, Thomas and Mallon JJ
Counsel:	J M Grainger for Applicant C Ure for Respondent
Judgment: (On the papers)	15 December 2022 at 2.30 pm

JUDGMENT OF THE COURT

A The application for leave to appeal is granted.

2. The appeal is to be allocated an urgent oral hearing before a divisional court 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 and sentenced to a term of imprisonment of two years and one month.^[1] He seeks leave to appeal his sentence. Leave is required because the proposed appeal would be a second appeal, 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 leave should be determined separately from the proposed substantive appeal and that the leave application should be decided on the papers.

Background

• [3] Mr Wharewhiti is a patched member of the Mongrel Mob. The victim of the aggravated robbery was a patched member of a rival gang the Barbarian Stormtroopers.
• [4] On the evening of 21 August 2021 Mr Wharewhiti and two other associates Messrs Eru and Buchanan came across the victim who was alone in a carpark working on a motorcycle. The three men approached the victim, and attacked him in an effort to remove his patch. Mr Wharewhiti along with Mr Eru struck the victim repeatedly with punches and kicks aimed at the head and body. Mr Buchanan kept watch holding a glass bottle by its neck like a club.
• [5] Associates of the victim arrived at the scene and attempted to thwart the attack by driving their vehicle towards the attackers. At this point Mr Wharewhiti and Mr Eru were dragging the victim along the ground while continuing to strike him and remove his patch. After several more blows to the head and body, Mr Buchanan hit the 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 the assault. The other two made no comment.
• [7] Following a sentence indication, both Mr Wharewhiti and Mr Buchanan subsequently pleaded guilty to the charge of aggravated robbery.^[3]

Sentencing in the District Court

• [8] Due to illness Mr Buchanan and Mr Wharewhiti were not sentenced at the same time.
• [9] In sentencing Mr Wharewhiti on 25 March 2022, Judge O’Driscoll adopted a starting point of three years and a half years’ imprisonment, relying on the decision of this Court in R v Mako.^[4] He then reduced that starting point by 17 months on account of 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 relating to Mr Wharewhiti’s background and upbringing which it was accepted was causally linked to his gang membership and hence his offending;^[6] and

  (c) an eight-month deduction for the guilty plea.^[7]

• [10] Those adjustments resulted in an end sentence of two years and one month’s imprisonment.^[8]
• [11] Mr Buchanan was also sentenced by Judge O’Driscoll.^[9] His sentencing took place a week later. The Judge adopted the same starting point of three and a half years’ imprisonment but in Mr Buchanan’s case applied an uplift of three months on account of the fact that the aggravated robbery occurred while Mr Buchanan was on bail.^[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.^[11]
• [12] Those reductions brought the sentence down to 24 months which meant Mr Buchanan was eligible for home detention. The Judge imposed a sentence of nine months’ home detention and 200 hours community work together with a judicial monitoring condition.^[12]
• [13] The Judge concluded his sentencing notes by saying:

[34] I am fully conscious and aware that your co-offender, Mr Wharewhiti was sentenced to imprisonment and was not granted home detention. That was because he did not come within the auspices of a short term sentence of imprisonment. I am also aware that he has filed an appeal to the Court of Appeal and I have no doubt that your case now will be put before the Court of Appeal and there will be a disparity argument advanced in the Court of Appeal, but I have given you a greater discount than I gave Mr Wharewhiti because 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 is on that basis that I brought your sentence down to a period where I could consider home detention.

The appeal in the High Court

• [14] Mr Wharewhiti’s appeal was heard by Mander J. The grounds of appeal were that the starting point was too high and that discounts should have been allowed for provocative conduct on the part of the victim and for Mr Wharewhiti’s youth, he being aged 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 violence including the use of a weapon to strike the victim’s head — the starting point of three and a half years imprisonment while perhaps stern was within range.^[13] He also held that the District Court Judge had been correct to reject a submission that a racist epithet used by the victim amounted to operative provocation.^[14]
• [16] As regards the issue of a discount for youth, Mander J noted there is no presumption in favour of such a discount which will depend on the nature of the offending and the circumstances of the particular offender. The offending in this case was, the Judge said, relatively serious, and the violence occurred not because of any youthful impulse but because of deliberate confrontation.^[15]
• [17] The Judge went on to say that one of the rationales for reducing a sentence because of an offender’s youth is the potential for rehabilitation and the concern that prison will expose the young person to the influence of hardened criminals and gang members. However, although there were aspects of Mr Wharewhiti’s personal situation which were in his favour such as a good employment record, family support and relatively minor previous offending, he remained committed to the gang. That meant, in the Judge’s view, that he will allow his conduct to be regulated by the gang’s norms and thus his rehabilitative prospects (whether considered on the basis of his age or more generally) appeared limited.^[16]
• [18] The Judge concluded that the District Court’s refusal to extend credit for youth was not an error and dismissed the appeal.^[17]
• [19] In dismissing the appeal, Mander J did not have the opportunity to consider the different sentencing outcome for Mr Eru. That was because the latter’s sentencing only 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 an eight‑month sentence of home detention for an unrelated wounding offence. The sentencing Judge, Judge Farish, was persuaded to follow a recommendation in the pre‑sentence report to cancel the home detention sentence and re-impose a sentence of community detention and intensive supervision. The Judge then imposed a sentence of six months’ community detention for both the wounding offence and the aggravated robbery 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 in his gang patch, successfully completed programmes, maintained sobriety and done “everything that everyone wanted [him to do]”. It is clear the Judge considered he had made 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 persuade us of one of two things: either that the proposed appeal involves a matter of general or public importance or that a miscarriage of justice may have occurred or may occur unless the appeal is heard.^[18]
• [23] The focus of the proposed appeal is the issue of a discount for youth and in particular the issue of what is the correct approach to determining youth discounts for young gang members. That is said to be a question of general or public importance especially given the increasing numbers of young people in gangs.
• [24] Counsel also submits that the failure of both the District Court and the High Court to allow for Mr Wharewhiti’s youth and rehabilitation potential has created the risk of a miscarriage of justice. It has resulted in a manifestly excessive sentence and led to a young man who would otherwise be eligible for home detention being imprisoned. Counsel further contends that although parity in sentence is not directly engaged, the rationale advanced for declining a discount for Mr Wharewhiti’s rehabilitation potential (gang membership) is so inconsistent with the reasoning adopted in relation to Mr Buchanan that the objective bystander would think that something has gone wrong. Mr Buchanan who was aged 26 at the time of the attack also remains committed to the gang.

Analysis

• [25] The test for obtaining leave to bring a second appeal is a high one. We are however persuaded in the circumstances of this case that it has been met on the basis that a miscarriage of justice may have occurred.
• [26] Mr Wharewhiti was the youngest of the three offenders and the only one of them to be sentenced to imprisonment. His role in the offending was not more serious and arguably slightly less. He has a very limited criminal history, has worked continuously since the age of 16 and has a supportive family.
• [27] In our view there is an argument worthy of ventilation on appeal that the High Court placed excessive weight on one statement in the pre-sentence report about being committed to the gang at the expense of other positive material. Material that arguably should have justified discounts for rehabilitative prospects and youth thereby rendering 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 at the earliest available date in February 2023.

Solicitors:
Public Defence Service, Christchurch for Applicant
Crown Law Office, Wellington for Respondent

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^[1] R v Wharewhiti [2022] NZDC 5244 [Sentencing notes].

^[2] 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 another unrelated serious charge.

^[4] Sentencing notes, above n 1, at [29], citing R v Mako [2000] NZCA 407; [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] At [28]–[32].

^[13] High Court decision, above n 2, at [9]–[11].

^[14] At [14].

^[15] At [19].

^[16] At [21]–[22].

^[17] At [22] and [24].

^[18] Criminal Procedure Act 2011, s 253(3). See McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.