Nohe v The Queen - [2019] NZHC 1771

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2019-419-0044

[2019] NZHC 1771

BETWEEN
FAVONA RAHERA NOHE

Appellant

AND

THE QUEEN

Respondent

Hearing: 24 July 2019

Appearances:

M L Dillon for Appellant L C Hann for Respondent

Judgment:

25 July 2019

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 25 July 2019 at 4.45 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors: Almao Douch, Crown Solicitor, Hamilton Counsel: M L Dillon, Hamilton

NOHE v R [2019] NZHC 1771 [25 July 2019]

[1] Ms Nohe appeals against sentence on six charges of ill-treatment/neglect of a child.1 On 7 June 2019, Judge Spear sentenced Ms Nohe to 15 months’ imprisonment, giving her leave to apply for home detention if, and only if, such was to enable her to enter into a residential treatment programme acceptable to the Court.2

[2] The Judge arrived at the end sentence by adopting a starting point of 15 months’ imprisonment, uplifting by three months for previous convictions for the same type of offending, and allowing a 15 per cent, or three-month, credit for guilty pleas.

[3] On appeal, Mr Dillon, counsel for Ms Nohe, submits that the Judge’s starting point was too high and should have been four months’ imprisonment, not 15. Mr Dillon also submits that Ms Nohe should have received a reduction of 20 to 25 per cent for her guilty pleas. If I accepted Mr Dillon’s starting point and gave a 20 per cent reduction for her pleas, Ms Nohe’s end sentence would be five months, two weeks’ imprisonment.

[4] The Crown opposes the appeal and submits the sentence was within the available range.

Background

[5]I take what follows from the summary of facts.3

[6] The offending occurred on 27 February 2018. Ms Nohe went to her brother and his partner’s house that morning. They have six children, aged one, three, four, six, seven and nine. The parents left the house, saying that they were going to get food, and leaving Ms Nohe in charge. They did not return.

1      Crimes Act 1969, s 195(1) and (2)(a).
2      No application for home detention has been made. Counsel for Ms Nohe informed me that Odyssey House is willing to admit Ms Nohe to one of their residential programmes, but unfortunately space is unlikely to be available until the end of 2019. Plainly it would be desirable if an earlier admission could be accommodated.
3      Ms Nohe’s brother and partner are also facing charges in respect of this offending and have pleaded not guilty. The facts that emerge at trial as regards their involvement may be different from those in the agreed summary.

[7] The older children went to school. At some point after this, Ms Nohe inhaled glue which incapacitated her. When the older children arrived home from school shortly before 3 pm, they found Ms Nohe intoxicated and wholly incapable of supervising or feeding the…

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 Nohe v The Queen

Details

AGLC: Nohe v The Queen [2019] NZHC 1771
Case: [2019] NZHC 1771
Decision Date: 25 July 2019

CaseChat Overview and Summary

In the case of Favona Rahera Nohe v The Queen, Ms Nohe appealed her sentence for six charges of ill-treatment or neglect of a child. The case was heard in the High Court of New Zealand, Hamilton Registry, where Justice Peters delivered the judgment on 25 July 2019. The Crown opposed the appeal and submitted that the sentence was within the available range.

The legal issues in this case centred around the appropriate starting point for Ms Nohe's sentence, the discount for her guilty pleas, and whether the uplift for prior relevant offending was proportionate. Counsel for Ms Nohe, Mr Dillon, argued that the starting point should have been four months' imprisonment, rather than the 15 months' imprisonment given by Judge Spear. He further submitted that Ms Nohe should have received a 20 to 25 per cent reduction for her guilty pleas. The Crown argued that the sentence was within the available range.

Justice Peters considered the starting point for the sentence, taking into account the facts of the case and relevant case law. He disagreed with the Crown's starting point of 15 months' imprisonment and believed that a 12-month starting point was more appropriate. While Peters J acknowledged that Ms Nohe's offending was obvious, he was not persuaded to increase the discount for her guilty plea, maintaining that a 15 per cent reduction was sufficient. He also found that the uplift for prior relevant offending was proportionate, leading to an end sentence of 12 months' imprisonment, which he considered a proper response to the offending.

In conclusion, the court upheld the sentence imposed by Judge Spear, with a modification to the starting point from 15 months' imprisonment to 12 months' imprisonment.

Orders