R v Kawhe

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.