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R v Wirihana

R v Wirihana

Case [2022] NZHC 863 28 April 2022

Sentencing

Mens Rea & Intention

Rehabilitative Prospects

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IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2020-063-004339

[2022] NZHC 863

THE QUEEN

v

WILSON WIRIHANA

Hearing: 28 April 2022

Appearances:

R W Jenson for Crown

A J Holland for Defendant

Sentence:

28 April 2022

SENTENCING REMARKS OF EDWARDS J

Solicitors/Counsel:
Pollett Legal (Office of the Crown Solicitor), Tauranga A J Holland, Auckland

R v WIRIHANA [2022] NZHC 863 [28 April 2022]

[1] Mr Wirihana, you appear today for sentencing having been acquitted of murder but found guilty of manslaughter following a jury trial last year. You were also acquitted of two charges of disfiguring with intent to cause grievous bodily harm in that same trial.

[2] Before I go on, I want to acknowledge all those who are gathered here today. That includes the family and friends of Mr Wirihana, and those of the deceased, Mr Wipatene Mason. It will be a difficult day for all of you.

[3] I will return to the very moving victim impact statements we have heard shortly, but I do acknowledge them at this point. The sentence I am about to pass is not a measure of a victim’s life and nothing I say will undo the tragic events which led to Mr Mason’s passing.

Approach to sentencing

[4] Sentencing follows a process. The sentence I determine must give effect to the purposes and principles of the Sentencing Act 2002.

[5] The purposes relevant in your case, Mr Wirihana, include: the need to hold you accountable and promote a sense of responsibility; to denounce and deter you and others from similar offending; to protect the community from harm; and to assist in your rehabilitation and reintegration.

[6] I also take into account the principle of consistency with appropriate sentencing levels, the effect of the offending on the victims, and your personal circumstances including any that would make the sentence disproportionately severe. I must impose the least restrictive outcome in the circumstances.

[7] In determining your sentence today, I must also decide whether you should serve it without parole. Usually offenders who are sentenced to imprisonment of over two years will be eligible for parole after serving one third of that sentence, unless a minimum period of imprisonment is imposed.

[8] However, your conviction for manslaughter engages what is known as the three strikes regime. Because your conviction is a second-strike offence, I am required to order that you serve the full term of your sentence without parole unless it would be so disproportionately severe as to contravene s 9 of the New Zealand Bill of Rights Act 1990.

[9] In light of those issues, I have approached your sentencing by considering what the sentence would be if the three strikes regime did not apply. That involves considering the nature of your offending and the impacts of it on the victims. I will then fix a starting point for the offending and go on to consider any adjustments to that starting point for…

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 Wirihana

Details

AGLC: R v Wirihana [2022] NZHC 863
Case: [2022] NZHC 863
Decision Date: 28 April 2022

CaseChat Overview and Summary

The case of R v Wirihana involved sentencing for the manslaughter of Mr Wipatene Mason, following a violent altercation on Christmas Eve in 2020. The defendant, Wilson Wirihana, was acquitted of murder but found guilty of manslaughter by a jury. The court had to determine an appropriate sentence, taking into account the purposes and principles of the Sentencing Act 2002, including accountability, deterrence, community protection, and the defendant's rehabilitative prospects. The court also considered the defendant's personal circumstances, including his background, criminal history, and mental health issues, as well as the impact of the offence on the victim's family.

The court found that the defendant's offending involved a single stab to the neck, which caused the victim's death. The defendant had a criminal history, with a previous conviction for wounding with intent to cause grievous bodily harm. The court determined a starting point of seven years' imprisonment, reflecting the gravity of the offending. The court then applied discounts for the defendant's offer to plead guilty to manslaughter, his rehabilitative prospects, and remorse, resulting in a sentence of four years and six months' imprisonment.

The court also considered whether to order the defendant to serve his sentence without parole, as required by the three strikes regime. However, the court found that doing so would result in a disproportionately severe sentence, given the defendant's personal circumstances, the reasons for the proposed repeal of the three strikes regime, and the potential for arbitrariness in the sentencing date. The court ultimately decided not to make an order for the defendant to serve his sentence without parole, as it would contravene section 9 of the New Zealand Bill of Rights Act 1990.

Final orders: The defendant was sentenced to four years and six months' imprisonment for the manslaughter of Mr Wipatene Mason. The court declined to make an order requiring the defendant to serve his sentence without parole.

Orders