[1] This is a motor manslaughter case. On the morning of trial, the appellant entered guilty pleas to one count of manslaughter by dangerous driving and one count of causing injury while driving with excess blood alcohol. Williams J sentenced her to a term of imprisonment of seven and a half years on the manslaughter count and disqualified her from driving indefinitely. On the other count the Judge sentenced the appellant to imprisonment for two and a half years and disqualified her from driving for three years. The sentences were to be served concurrently.
[2] The appellant appeals against sentence. Focussing on the manslaughter sentence, she advances two grounds. First, she says that the starting point adopted was too high (the tariff issue). Second, she says that the Judge gave inadequate weight, whether in terms of assessing culpability or by way of mitigation, to the effect of post-traumatic stress disorder arising from battered women’s syndrome (the battered woman issue).
[3] The appeal came on for hearing before a Criminal Appeal Division on 30 August 2007. The Division determined that the appeal should be heard by the Permanent Court. Accordingly that fixture was vacated and a new date was allocated.
[4] In the intervening period, Mr Pyke, counsel for the appellant, filed further submissions and provided extensive additional material on sentencing in motor manslaughter cases and on battered women’s syndrome. The Crown also filed further submissions. We are most grateful to both counsel for the extensive work that they have undertaken in relation to this appeal. The submissions and materials provided were both comprehensive and helpful.
Factual background
[5] At the relevant time, the appellant was in a relationship with a Mr Kaneri. She was 25. The couple lived in Hamilton. Like her previous partner, Mr Kaneri subjected the appellant to regular physical and verbal abuse.
[6] On the morning of 18 August 2005, Mr Kaneri asked the appellant to take him to a friend’s house in Fairfield, a suburb of Hamilton, in her car. He had been drinking overnight and wanted to continue. The appellant complied. She joined in the drinking at the friend’s house. About mid-afternoon, Mr Kaneri asked the appellant to drive him to another friend’s house. The appellant reluctantly agreed.
[7] When they arrived the appellant waited in the car while Mr Kaneri went and drank with his friends. The appellant waited for one and a half to two hours. When Mr Kaneri came out, the appellant complained about the amount of time that he was taking. Mr Kaneri was by this stage heavily intoxicated and became very aggressive. He punched one of the…
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.
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AGLC
R v Whiu [2007] NZCA 591
Case
[2007] NZCA 591
Decision Date
CaseChat Overview and Summary
The appeal in R v Whiu was heard by O'Regan, Arnold and Wilson JJ in the Court of Appeal of New Zealand. The appellant, Marjorie Tihi Omoerangi Whiu, was found guilty of manslaughter by dangerous driving and causing injury while driving with excess blood alcohol. She was sentenced to a term of imprisonment of seven and a half years for manslaughter and two and a half years for the other count, with the sentences to be served concurrently. The appellant appealed against her sentence, focusing on the manslaughter sentence. She argued that the starting point adopted by the Judge was too high and that the Judge gave inadequate weight to the effect of post-traumatic stress disorder arising from battered women’s syndrome. The Court considered the appellant's arguments and concluded that the starting point of nine years was justifiable in light of the circumstances and nature of the offending. The Court also found that the appellant was entitled to a discount of 30 per cent to reflect all mitigating factors, which produced an end sentence of seven years. The Court dismissed the appeal as the end sentence imposed by the Judge was within the appropriate range.