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NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF ANY PERSON UNDER THE AGE OF 17 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 139A OF THE CRIMINAL JUSTICE ACT
1985.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA641/2010 [2011] NZCA 592
BETWEEN THE QUEEN Appellant
ANDJACQUELINE ELAINE WIHONGI Respondent
Hearing: 14 July 2011
Court: O'Regan P, Arnold and Stevens JJ Counsel: F E Guy Kidd and M Cooke for Appellant
E R Fairbrother for Respondent
Judgment: 28 November 2011 at 10:30 AM
JUDGMENT OF THE COURT
A Leave to appeal is granted.
BThe appeal is allowed. The sentence imposed in the High Court is quashed and a sentence of imprisonment for 12 years is substituted.
REASONS OF THE COURT
(Given by O‟Regan P)
R V JACQUELINE ELAINE WIHONGI COA CA641/2010 28 November 2011
Table of Contents
Para No Introduction [1] Points on appeal [3] Procedure [6] Circumstances of the offending [8] Sentencing Judge’s approach [18] Fresh evidence [33] Did the Judge treat intoxication as a mitigating factor? [52] Did the Judge err in finding that Ms Wihongi did not
present a future risk of violence? [56]
Did the Judge err in finding the victim demanded
sex from Ms Wihongi? [60]
Was a departure from the presumption of life
imprisonment justified? [69]
Cognitive deficits [75] Battered defendant: history of abuse [83] Future risk of violent offending [89] Should there have been a longer finite term? [95] Minimum period of imprisonment? [99] Result [103]
Introduction
[1] The Solicitor-General seeks leave to appeal against the sentence of eight years imprisonment imposed on the respondent, Ms Wihongi, for murder. The principal issue arising in the proposed appeal is whether the sentencing Judge, Wild J, was right to impose a determinate sentence on Ms Wihongi, rather than sentence her to imprisonment for life. Under s 102 of the Sentencing Act 2002, imprisonment for life is required for offenders convicted of murder unless such a sentence would be “manifestly unjust”.
[2] There is no doubt that this is an important issue in respect of which leave should be given. Counsel for Ms Wihongi, Mr Fairbrother, accepted that. We therefore grant leave.
Points on appeal
[3] The Crown argues that Wild J should not have found that it would be manifestly unjust to impose a life sentence on Ms Wihongi given the circumstances of the offending and of Ms Wihongi as the offender. In particular, the Crown says:
(a) The Judge wrongly treated Ms Wihongi‟s intoxication as a mitigating
factor.
(b)The Judge was wrong to find that Ms Wihongi did not present a future risk of violence. We received further evidence on this aspect of the case.
(c) The Judge‟s finding that the victim demanded sex from Ms Wihongi
just before the stabbing was not founded on the evidence.
(d)The combination of Ms Wihongi‟s intellectual impairment and psychological condition did not, in the circumstances, justify a departure from the presumption of life imprisonment.
[4]…
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 Wihongi [2011] NZCA 592
Case
[2011] NZCA 592
Decision Date
CaseChat Overview and Summary
The Court of Appeal was asked to consider the appeal of the Crown against the sentence imposed on Ms Jacqueline Wihongi for the murder of her partner. Ms Wihongi was sentenced to eight years imprisonment by Wild J. The Crown argued that the sentence was manifestly inadequate and that a sentence of imprisonment for life was appropriate. The Court of Appeal allowed the appeal, quashed the original sentence and substituted a sentence of 12 years imprisonment. The Court found that Ms Wihongi's history of abuse, intellectual deficits, and alcohol abuse were relevant factors which justified the departure from the presumption of a life sentence for murder. The Court found that Ms Wihongi would need to avoid alcohol and drugs and not associate with gangs after her release. The Court concluded that a longer finite sentence would better meet the sentencing principles of community protection, denunciation, and deterrence. The Court found that a minimum period of imprisonment greater than the default period of one third could be imposed in a case where the presumption under s 102 of the Sentencing Act had been displaced, but found that there was no proper basis for doing so in this case.