R v W - [2018] NZHC 117

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2016-004-007842 [2018] NZHC 117

THE QUEEN

v

W

Hearing: 13 February 2018

Counsel:

FMT Culliney for Crown
JS Kovacevich for Defendant

Judgment:

13 February 2018

SENTENCING REMARKS OF DOWNS J

Solicitors/Counsel:
Meredith Connell, Auckland. JS Kovacevich, Auckland.

R v W [2018] NZHC 117 [13 February 2018]

Preliminary issue

[1] Mr W, I must deal with a preliminary issue before sentencing you: whether charge 23 in relation to which you were found guilty is governed by the three strikes provision of the Sentencing Act 2002. This turns on when exactly you committed the offence because the charge straddled the commencement of the three strikes regime.

[2] Ms M’s evidence was that the offending occurred approximately six or seven months before she left Aranui Road. It was not contested Ms M left that property in December 2014. If correct, your offending occurred after the commencement date of the regime and you are subject to it. However, Ms M did not reference this offence to a significant event close in time, such as a birthday, anniversary or anything else particularly memorable. And, on her own evidence, her timing of it was something of an approximation. In these circumstances, I am not sure the offence occurred before the three strikes regime came into being. Therefore, I conclude you are not governed by that regime.

[3] Now sentencing itself.

Sentencing remarks

[4] Mr W, you were found guilty late last year of 38 charges in relation to your former partner and six children. You pleaded guilty to one charge during trial. All of this you will remember. All of the charges involve in some way serious violence. It is common ground I must impose a long term of imprisonment. The primary question is how long should the sentence be? A related question is whether I should impose a minimum period of imprisonment.

Charges

[5] Before addressing the facts, I must say something more about the charges. There are 39:

(a) Five of wounding with intent to injure. These charges included variance which alleged maiming or disfiguring. Each of the charges within this bracket is punishable by up to seven years’ imprisonment.

(b) Six of injuring with intent to injure.

(c) Twelve of assault with a weapon. Each of these and each of the six injuring charges is punishable by up to five years’ imprisonment.

(d) One of assault with intent to injure.

(e) Six of breaching a protection order. Each of these is punishable by up to three years’ imprisonment. So too the assault with intent to injure charge.

(f) Two of male assaults female.

(g)Five of assault on a child. Each of these and each of the male assaults female charges is punishable by up to two years’ imprisonment.

(h)Two of common assault, which is punishable by up to one year imprisonment.

[6] Some of the charges are representative, meaning they allege a pattern of conduct.…

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 W

Details

AGLC: R v W [2018] NZHC 117
Case: [2018] NZHC 117
Decision Date: 13 February 2018

CaseChat Overview and Summary

In the High Court of New Zealand, the case of R v W involved a defendant found guilty of 38 charges related to serious violence against his former partner and their six children. The defendant, W, had been in a relationship with the victim, Ms M, since 1998, during which he inflicted significant physical harm upon her and their children over a period of 16 years. The court had to decide on the appropriate sentence for the defendant, considering the gravity of the charges, the duration and nature of the offending, and the aggravating factors involved.

The court determined that the charges against the defendant were of unprecedented seriousness, involving extensive use of weapons and causing permanent injuries to Ms M and their children. The court found several aggravating factors, including the defendant's use of various weapons, the frequency and severity of the assaults, and the vulnerability of the victims. The court noted that the defendant had shown no remorse and lacked any mitigating factors that could reduce his culpability.

After careful consideration of the starting point and the need to reflect the seriousness of the offending, the court settled on a global starting point of 12 years’ imprisonment. The court also imposed a minimum period of six years to ensure accountability and public protection. The final sentence comprised cumulative and concurrent terms for various charges, resulting in an effective sentence of 12 years' imprisonment, with a mandatory minimum of six years.

Orders