R v Witehira - [2021] NZHC 678

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-092-9267

[2021] NZHC 678

THE QUEEN

v

FREDA ELLEN WITEHIRA

Hearing: 30 March 2021

Appearances:

A R Burns for Crown Q Duff for Defendant

Sentence:

30 March 2021

SENTENCING REMARKS OF PETERS J

Solicitors: Kayes Fletcher Walker Ltd, Crown Solicitor, Manukau Counsel: Q Duff, Auckland
I M Stewart, Auckland

R v WITEHIRA [2021] NZHC 678 [30 March 2021]

[1]Tēnā koutou, tēnā koutou, tēnā koutou katoa.

[2] Ms Witehira, you are for sentence for the manslaughter of Colin Anderson on 24 August 2019.1 The maximum sentence for manslaughter is life imprisonment.2

[3] A jury found you guilty of manslaughter following a trial in November 2020 at which I presided. When the jury found you guilty, I entered a conviction for manslaughter and gave you what we refer to as the “first strike” warning.

[4] Before I go any further, I wish to acknowledge the devastating effect these events have had on Mr Anderson’s whānau. No one in the courtroom will be in any doubt about what Mr Anderson’s death has meant for those close to him. This morning I have heard the statements from Mr Anderson’s father, Fred, his brother also named Fred, and his cousins, Kate and Tania. I have also had the benefit, before this morning, of reading the statement provided by Anna Anderson, Mr Anderson’s sister. From the information that I have read and heard, it is also apparent that Mr Anderson was a loving father, and soon to be a grandfather.

[5] All in all, Mr Anderson was a dearly loved son, brother, father, and cousin, and of course, Ms Witehira, he was also your sister’s, Kuini’s, longstanding partner.

[6] As I said when I summed up to the jury, this case is a tragedy. Mr Anderson has lost his life. Your sister has lost her partner. Mr Anderson’s whānau have lost someone very dear to them. You have been in custody since shortly after Mr Anderson’s death and your three youngest children, who were living with you at the time, are now in someone else’s care. And now you have a conviction for manslaughter.

Process

[7] In so far as concerns the process this morning, it is necessary for me first to summarise the facts of the offending. Then I can turn to the sentencing process itself, which comprises two stages. Please everyone bear with me. The process does take

1 Crimes Act 1961, s 171.
2 Section 177.

some time but I need to explain the reasons for what I have decided to the Crown, to Mr Anderson’s family, and to you. So, it does take me some time and you will not know the sentence until I get to the very end, so just bear with me until then.

Facts

[8] Turning to the facts. On the afternoon of 24 August 2019, Mr Anderson and Kuini were at a local bar. At the same time, you…

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 Witehira

Details

AGLC: R v Witehira [2021] NZHC 678
Case: [2021] NZHC 678
Decision Date: 30 March 2021

CaseChat Overview and Summary

Freda Ellen Witehira was convicted of manslaughter by a jury for the death of Colin Anderson, who was her sister's partner. The legal issues before the court were the starting point for the sentence, and whether any personal factors should increase or decrease the sentence. The starting point for sentencing was five years’ imprisonment, given the similarities to other cases where a defendant killed a violent partner in a domestic relationship. The court accepted that the defendant's difficult upbringing, history of domestic violence, and post-traumatic stress disorder warranted a reduction in the sentence of 20%. The court also reduced the sentence by a further 5% for the defendant's remorse and rehabilitative potential. The final sentence was three years, six months’ imprisonment.

The final orders of the court were that Freda Ellen Witehira be sentenced to three years, six months’ imprisonment for the manslaughter of Colin Anderson.

Orders