Korewha v R - [2018] NZHC 1896

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2018-488-000021

[2018] NZHC 1896

BETWEEN
WILSON KOREWHA

Appellant

AND

THE QUEEN

Respondent

Hearing: 20 July 2018

Appearances:

G Skinner for the Appellant

J P R Scott for the Respondent

Judgment:

30 July 2018

JUDGMENT OF HINTON J

This judgment was delivered by me on 30 July 2018 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors:
Thode Utting & Co, Auckland
Marsden Woods Inskip & Smith, Whangarei

WILSON KOREWHA v R [2018] NZHC 1896 [30 July 2018]

[1] Mr Korewha appeals the decision of Judge D J Orchard, on 7 March 2018, in the District Court at Whangarei, sentencing him to 18 month’s imprisonment for assault with a weapon under s 202C of the Crimes Act 1961, and declining to grant leave under s 80I of the Sentencing Act 2002 (the Act) to apply for home detention, should an address become available.1 In a letter to the Court the defendant says he now believes he has such an address in Whangarei.

[2] Counsel for the appellant does not take issue with the length of the sentence. The only issue from their perspective is with regard to the refusal to grant leave to seek home detention.

Facts

[3] On 30 May 2015, following an argument between his brother and the victim, Hemi Wylie, that developed into a physical altercation, Mr Korewha struck Mr Wylie with a beer bottle, smashing it over his head.2

[4] Mr Wylie suffered serious injuries as a result of the altercation, including a left front subdural haematoma and two broken front teeth. He suffered a traumatic brain injury for which he spent three weeks in the Acquired Brain Injury Rehabilitation Centre. Since the attack he has suffered from seizures, problems with his hearing, vision and balance issues. I adduce from his victim impact statement that it has been a long and arduous road to recovery, which is not yet over.

The decision in the District Court

[5] Section 80I of the Act applies if the Court sentences a defendant to a short- term sentence of imprisonment and, at the time of sentencing, the Court would have sentenced the defendant to home detention, but for a suitable residence.

[6] The Judge decided that she would not have sentenced the defendant to home detention even if there were a suitable residence. She said so, it would seem for the

1 Police v Korewha [2018] NZDC 4352.
2 I note, as did the Judge, that there is a particularly long and unexplained length of time between the offending and the charges being laid.

primary reason that such a sentence would not come close to meeting the seriousness of the offending and achieving the purposes of sentencing which are relevant.3 To some extent I am reading that into the judgment, but I consider it a reasonable interpretation.

[7] It does seem that the Judge was also influenced…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Korewha v R

Details

AGLC: Korewha v R [2018] NZHC 1896
Case: [2018] NZHC 1896
Decision Date: 30 July 2018

CaseChat Overview and Summary

In the case of Korewha v R, the appellant, Wilson Korewha, appealed against his 18-month imprisonment sentence for assault with a weapon. The District Court had declined to grant leave to apply for home detention, should an address become available. Korewha argued that the District Court judge erred in not granting leave to seek home detention. The High Court was required to determine whether the District Court's decision to decline leave to seek home detention was correct. The court needed to consider whether the judge had erred in taking into account the possibility of more serious charges being laid, and whether the sentence imposed was manifestly unjust.

The High Court found that the District Court judge had indeed erred in taking into account the possibility of more serious charges being laid as this was not a permissible consideration in sentencing. The Court concluded that this error may have had an operative effect on the District Court's decision not to grant leave to seek home detention. The High Court further found that a sentence of imprisonment was manifestly unjust if the offender could have rightly been sentenced to home detention, or if leave to seek home detention was denied when such leave should have been granted. The Court considered that home detention was a suitable alternative in the present circumstances, given the factors such as Korewha's young family, employment history, and course efforts. The Court was also concerned about the root cause of Korewha's violent outbursts being alcohol and his failure to address this issue. However, the Court found that the interests of Korewha and the community were better served by a sentence of home detention, as opposed to imprisonment.

The appeal was allowed, and Korewha was granted leave to apply for a sentence of home detention. His sentence of 18 months' imprisonment was not disturbed.

Orders