R v Werahiko - [2008] NZCA 24

IN THE COURT OF APPEAL OF NEW ZEALAND
CA716/07
[2008] NZCA 24
THE QUEEN
v
MICHAEL UMANUI WERAHIKO
Hearing:19 February 2008

Court:Robertson, Randerson and Ronald Young JJ
Counsel:P M Hardie for Appellant

M F Laracy for Crown

Judgment:25 February 2008 at 3.30 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
Introduction
[1]       On 18 December 2007, the appellant was sentenced by Judge Weir in the District Court to 15 months’ imprisonment on one charge of car conversion and one of male assaults female. He pleaded guilty to the first charge immediately before trial and was found guilty by a jury on the second. He was acquitted of two charges of sexual offending against the female he assaulted.
[2]       He appeals against sentence on the grounds that the sentencing Judge failed to articulate a starting point, and that the sentence was manifestly excessive. The appellant was released from prison in January 2008 (taking into account time spent in custody on remand), but nevertheless wishes to pursue his appeal.
Background facts
[3]       The appellant and the victim of the assault had been in a relationship for approximately three years and were the parents of two young children, one of whom was a baby aged 20 months at the time of the offending. There had clearly been difficulties in the relationship from time to time but matters came to a head on 20 March 2007 when the appellant wilfully damaged the residential property in which the victim was living.   He kicked in a door at the property, causing damage to the door and frame as well as damaging a garage with a crowbar. This led to the victim obtaining a protection order against the appellant on 22 March. The order was served on the appellant on 16 May.
[4]       On 29 May 2007, while the appellant was on bail in respect of the wilful damage charge, the events which are the subject of this appeal occurred. The sentencing Judge described the events in the following way:
[5]       On the 29^th of May, you were at another address here in Rotorua with your new partner and what happened there was that her young son suffered an asthma attack of sufficient seriousness for an ambulance to be called and for him to be taken to hospital. The mother, your new girlfriend, went with her son in the ambulance to the hospital. She gave the keys to her car to you, and you told her that you would drive the car to the hospital to meet her there. She did not give you permission to use the car in any other way.
[6]       Instead of going to the hospital, you went into town. You went to a pub and consumed a significant amount of alcohol. Instead of going to the hospital, you then went around to the property of the complainant. You entered the house through an unlocked front door and I am…

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 Werahiko

Details

AGLC: R v Werahiko [2008] NZCA 24
Case: [2008] NZCA 24
Decision Date: 25 February 2008

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from Michael Umanui Werahiko against his sentence of 15 months imprisonment for car conversion and male assaults female. Werahiko had pleaded guilty to car conversion and was found guilty by a jury on the charge of male assaults female. The appellant was sentenced by Judge Weir in the District Court, and he appeals against the sentence, arguing that the sentencing judge failed to articulate a starting point and that the sentence was manifestly excessive. Werahiko was released from prison in January 2008 but wishes to pursue his appeal. The court needed to determine whether the sentence was excessive and if the sentencing judge's failure to articulate a starting point was problematic. The Court of Appeal examined the circumstances of the offences and the appellant's previous convictions. The court found that the sentence was not excessive and that the sentencing judge's failure to articulate a starting point did not significantly impact the outcome. The court dismissed the appeal against sentence, upholding the original 15-month imprisonment term.

Orders