R v Waho-Marsden

[2025] NZHC 2350

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CRI-2023-031-1144

[2025] NZHC 2350

THE KING

v

QUENTIN WAHO-MARSDEN

Counsel:	G J Burston, E M Ferrier and R S Bedggood for Crown O S Winter for Defendant Waho-Marsden
Judgment:	19 August 2025

JUDGMENT OF GRAU J

Request for AVL sentencing

[1]    Mr Waho-Marsden is to be sentenced by this Court on 21 August 2025 for the murder of Dean Kahukiwa and a related arson, which was an attempt to burn down the house in which Mr Kahikiwa’s body was left after he was killed. Four other co-defendants are also for sentence in relation to their secondary roles in this offending. Mr Waho-Marsden applies for permission to appear at his sentencing by way of audio-visual link (AVL) instead of being brought to the Wellington High Court for sentencing. The Crown does not oppose his application.

[2]    The basis of the application is that Mr Waho-Marsden is currently participating in a cultural programme at Hawkes Bay prison (where he was recently moved to) and if transferred to Wellington for his sentencing he will be unable to complete it.      Mr Winter, for Mr Waho-Marsden, says that participation in the programme is a

R v HINES & ORS [2025] NZHC 2350 [19 August 2025]

significant change for him, and is being undertaken as part of the process of adjusting to the reality of his long-term future after sentencing.

The legislation

[3]    The Courts (Remote Participation) Act 2010 (the Act) governs the use of AVL in proceedings. Pursuant to s 8 of the Act, AVL may, if it is available, be used for a defendant who is in custody if a judicial officer determines that the use of AVL is not contrary to the interests of justice. The criteria that must be considered when making that determination are set out in s 5. They are, relevantly:

(a)the nature of the proceeding;

(b)the availability and quality of the technology that is to be used;

(c)the potential impact of the use of the technology on the effective maintenance of the rights of other parties to the proceeding, including the level of contact with other participants; and

(d)any other relevant matters.

[4]    Section 6 of the Act also requires consideration of the potential impact of the use of such technology on the defendant’s right to a fair trial, and other associated rights, in particular, so far as they are relevant to the sentencing hearing:

(a)the ability of the defendant:

(i)to comprehend the proceedings; and

(ii)to participate effectively in the conduct of his or her defence; and

(iii)to consult and instruct counsel privately; and

(iv)to access relevant evidence; and

...

(b)the level of contact the defendant has with other participants; and

(c)any adverse impression that may arise through the defendant or any other participant appearing, or a victim or a support person observing, by means of AVL, and whether that adverse impression may be mitigated.

[5]    The implementation of the Act is informed by the recently published protocol for remote participation by the defendant in custody in High Court criminal

proceedings (the Protocol).1 The Protocol sets out the types of hearings in which the default position is for the defendant to appear remotely, and those in which the default is attendance in person. The latter includes sentencing indications and sentencings.2 The commentary in the Protocol notes the reasons for in-person appearances include constitutional and public interest considerations, as it is important that some things are done face to face, in public, with value in justice being seen to be done in the community at the local level.3 The Protocol also observes the importance of the court setting in conveying gravity, including when imposing a sentence.4 It further points to the desirability in some instances of connecting the defendant to others at the courtroom.5

Decision

[6]    The Court may permit the use of AVL for a defendant at sentencing when the statutory prerequisites are met. In this case, there is no issue as to the availability or quality of AVL and Mr Waho-Marsden is in custody. I would also accept that its use would not necessarily be contrary to the interests of justice, given the Crown’s lack of opposition, which is said to have regard to the views of the victim’s whānau. However, I do not consider that its use promotes the interests of justice either. I am particularly concerned about the adverse impression that may arise through an AVL appearance.

[7]    I cannot put it better than Mander J who said as follows in declining such a request:6

The defendant is for sentence on the most serious of charges and he faces a potentially very condign sentence. He is the critical participant and his physical presence is an important component of the administration of justice in this case. The only apparent justification appears to be the defendant’s preference, which cannot displace the ordinary need for a defendant to be physically before the Court for the purpose of being sentenced in the circumstances of such a serious case as this.

1      Chief High Court Judge Sally Fitzgerald Protocol for remote participation by the defendant in custody in High Court criminal proceedings  (Courts of New Zealand | Ngā Kōti o Aotearoa,   18 July 2025).

2      At [25](g) and (h).

3      At [27](a).

4      At [27](d).

5      At [27](f).

6      R v Tarrant [2020] NZHC 999 at [11].

[8]    While I acknowledge that the case I have referred to was significantly more serious, Mr Waho-Marsden’s offending is also very serious. I also acknowledge that Mr Waho-Marsden’s participation in a programme is a positive step, and that the application is unopposed, but I am not satisfied that the interests of justice favour permission to attend sentencing by AVL. Instead, I consider this is a case where, as Mander J also said “Justice must not only be done but must be seen to be done”.7 In addition, and notwithstanding the reason advanced for the request, I am also concerned at the prospect of the request being interpreted as a means of avoiding facing the consequences of being publicly held accountable for the offending.8 It is also of note that Mr Waho-Marsden is to be sentenced along with four co-offenders who had lesser roles in the offending. It does not appear to me to be in the interests of justice for those offenders to be required to appear in person, while the principal offender is not.

[9]    Finally, I also note that it appears to be highly unusual for permission to be granted for sentencing to proceed via AVL in respect of very serious charges. As noted above, the default is for offenders to attend their sentencings in person, to ensure the gravity of the consequences for their offending is conveyed and so that the victims and the community can see justice being done. I have only found a single case where a defendant was permitted to attend sentencing via AVL on a serious charge (manslaughter) and permission appears to have been granted in that case only because of the defendant’s significant health issues.9 I do not consider that the circumstances here justify departing from the default position.

[10]   For those reasons, I decline the request for permission to attend sentencing by AVL.

Grau J

Solicitors:

Crown Solicitor, Wellington for Crown

cc:        O S Winter, Palmerston North for Defendant

7 At [12].

8 At [16]. See also, R v Williams [2019] NZHC 2630 at [13].

9      R v Johnston [2022] NZHC 2347.