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R v Kawhe

R v Kawhe

Case [2022] NZHC 1852 29 July 2022

Rehabilitative Justice

Recidivism

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-085-2048

[2022] NZHC 1852

THE QUEEN

v

WILLIAM KAWHE

Hearing: 29 July 2022

Counsel:

M Heslip for Crown

P Mitchell for Mr Kawhe
L R van der Lem for Department of Corrections

Sentencing:

29 July 2022

SENTENCING NOTES OF GWYN J

[1] Mr Kawhe you appear for sentencing for a charge of robbery1 and breach of a sentence imposed in the Wellington District Court for intensive supervision.2 You committed the offending with your co-offender who pleaded guilty and was sentenced to five months’ community detention and nine months’ supervision. You have entered your guilty plea this morning, following a sentencing indication given by Churchman J on 15 July 2022.

1 Crimes Act 1961, s 234 (maximum term of imprisonment of 10 years; category 3 offence).
2 Sentencing Act 2002, s 70(A)(a) (maximum penalty of imprisonment for a term not exceeding six months or a fine not exceeding $1500; category 2 offence).

R v KAWHE [2022] NZHC 1852 [29 July 2022]

The offending

Robbery

[2] The offending for which you have been convicted is robbery on Leeds Street in Te Aro, Wellington with your co-offender.

[3] The victim reversed his ute into a parallel park and you hit the rear of the victim’s vehicle. The victim got out of the vehicle and began walking along Leeds Street. You and your co-offender followed after the victim and accused him of hitting your car, challenging him to fight. Your co-offender told the victim that things would go badly for him if he did not hand over his keys. When the victim tried to get away, you both pressed your chests against the victim threateningly so that he could not leave. You both continually demanded the victim’s keys and said that “we’ll fuck you up if you don’t give us the keys”. The victim, facing the threat of violence, handed over the keys and your co-offender took them, unlocked the doors of the victim’s vehicle and walked away. You were apprehended by Police not long after. The keys were not recovered.

Breach of intensive supervision

[4] Mr Kawhe, you were sentenced to 18 months’ intensive supervision in the Wellington District Court on 2 March 2021 following convictions for injuring with intent to injure, theft ($500-$1,000) and assault with intent to injure.

[5] You were required to report to a PO every Friday at 2.00 pm for 18 months and this requirement, and the consequences for non-compliance, were explained to you on 5 March 2021. You signed papers indicating your understanding.

[6] On 22 September 2021 you had a call with your PO who repeated your reporting obligations and the requirement for you to report to Community Probation.

[7] On 24 September 2021, you failed to report to the PO as directed without reasonable excuse. Since the commencement of that sentence, you failed to report to Community Probation as directed on 16 occasions.

Victim impact statement

[8]…

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 R v Kawhe

Details

AGLC: R v Kawhe [2022] NZHC 1852
Case: [2022] NZHC 1852
Decision Date: 29 July 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Gwyn J sentenced William Kawhe for a charge of robbery and breach of a sentence imposed in the Wellington District Court for intensive supervision. Kawhe pleaded guilty following a sentencing indication provided by Churchman J on 15 July 2022. The court considered the principles set out in Fitzgerald v R and Phillips v R, where the Supreme Court held that where a sentence required to be imposed under s 86D(2) of the Sentencing Act 2002 would result in a breach of s 9 of the New Zealand Bill of Rights Act 1990 (NZBORA), ordinary sentencing principles apply. The court calculated an appropriate sentence by setting the starting point for the offending and considering personal circumstances, including guilty pleas.

The court considered the aggravating and mitigating factors of the offending, including the number of participants, threats of violence, previous convictions, and the defendant's guilty plea. The defendant's history of offending, including eight robbery or robbery-type offences between 2011 and 2021, was considered an aggravating factor, while the defendant's guilty plea was considered a mitigating factor. The court also considered the defendant's personal circumstances, including addiction to alcohol and methamphetamine, homelessness, and disconnection from his whanau.

The court set a starting point of 18 months’ imprisonment, uplifted by 15 per cent and reduced by 20 per cent, resulting in an end sentence of 17 months. The court noted that this short term of imprisonment was in such disparity with the maximum sentence required to be imposed under s 86D(2) of the Sentencing Act that it was sufficient to engage s 9 of NZBORA. Therefore, the court adopted the ordinary sentence on Fitzgerald and Phillips principles.

The defendant was sentenced to a period of 17 months’ imprisonment in relation to the charges of robbery and breach of intensive supervision. The defendant had been remanded in custody for a period of 10 months and two weeks, which would count as time served towards the sentence imposed. The court also imposed standard and special release conditions, including restrictions on the defendant's association with the victims of the offending and his residence in Wellington. The court declined to impose further special conditions sought by the Department of Corrections, as the defendant's uncle had offered him support and employment in Christchurch.

Overall, the court considered the aggravating and mitigating factors of the offending, as well as the defendant's personal circumstances, in determining an appropriate sentence. The court adopted the ordinary sentence on Fitzgerald and Phillips principles, taking into account the defendant's previous convictions and guilty plea. The court also imposed standard and special release conditions to protect the community and promote the defendant's rehabilitation.

Orders