Rebel Waitohi v The Queen - [2015] NZSC 43

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT UNDER THE AGE OF 18 YEARS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011

IN THE SUPREME COURT OF NEW ZEALAND

SC 9/2015
[2015] NZSC 43

BETWEEN	REBEL WAITOHI Applicant
AND	THE QUEEN Respondent

Court:	Elias CJ, Arnold and O'Regan JJ
Counsel:	N P Chisnall for Applicant M G Wilkinson for Respondent
Judgment:	22 April 2015

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant seeks leave to appeal against a decision of the Court of Appeal dismissing his appeal against sentence.[1]
[1]Waitohi v R [2014] NZCA 614 (French, Asher and Clifford JJ) (Court of Appeal judgment).
He had been sentenced by Lang J in the High Court to a term of imprisonment of six years and six months.[2]
[2]R v Waitohi [2014] NZHC 1018.
The appellant had been found guilty at trial of two counts involving the causing of injury to his infant daughter. The first count was a count under s 188(2) of the Crimes Act 1961 of wounding with reckless disregard for the safety of another. This involved causing a life-threatening vertical tear to the back of the baby’s throat by ramming his finger or some other object into the baby’s throat. The injury was a serious one that had lasting effects (requiring the baby to feed through a tube) but from which the baby has now recovered. Lang J imposed a sentence of five years imprisonment on this count (uplifted from four years and six months because of the appellant’s previous convictions for violent offences).[3] The second count was a count under s 189(2) of the Crimes Act of injuring with reckless disregard for the safety of another. This involved causing fractures to two of the baby’s ribs. Lang J imposed a cumulative sentence of 18 months imprisonment for this count (reduced from two years and six months to take into account the totality principle).[4]
[3]At [15] and [19].
[4]At [15].
The point of principle that the applicant wishes to pursue if leave is granted relates to s 9A of the Sentencing Act 2002. That section requires a sentencing Judge to take into account a number of specified aggravating factors where the offence involves violence against, or neglect of, a child under 14 years of age. In its decision, the Court of Appeal observed that its earlier decision in R v Brown,[5] which was decided before s 9A came into force, will require reconsideration in light of s 9A.[6] However, it did not undertake that reconsideration. This appeared to be because the Court found that the present offending was more serious than the offending in R v Brown, justifying the higher starting point in the present case than that adopted in R v Brown.[7]
[5]R v Brown [2009] NZCA 288.
[6]Court of Appeal judgment, above n 1, at [25].
[7]At [26].
The applicant says the aggravating factors in…

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 Rebel Waitohi v The Queen

Details

AGLC: Rebel Waitohi v The Queen [2015] NZSC 43
Case: [2015] NZSC 43
Decision Date: 22 April 2015

CaseChat Overview and Summary

The applicant, Rebel Waitohi, sought leave to appeal against a decision of the Court of Appeal that dismissed his appeal against the sentence imposed by the High Court. The Court of Appeal had upheld a sentence of six years and six months for the applicant who had been found guilty of two counts of causing injury to his infant daughter. The first count involved causing a life-threatening vertical tear to the baby’s throat, and the second count involved causing fractures to two of the baby’s ribs. The applicant argued that the Sentencing Act 2002, which was enacted after the Court of Appeal’s decision in R v Brown, required reconsideration of the sentence. The Court of Appeal had acknowledged that its earlier decision would require reconsideration but did not undertake it, finding that the present offending was more serious than in R v Brown.

The primary legal issue before the Supreme Court was whether the Court of Appeal's approach to the sentence was correct, particularly in light of the Sentencing Act 2002, which mandates consideration of specific aggravating factors when sentencing for violence against a child under 14 years of age. The applicant argued that the Court of Appeal erred by not reconsidering the sentence in light of section 9A, which was not directly in issue because the Court of Appeal had found the present offending to be more serious. The Court also considered whether the Court of Appeal's failure to explain the difference in starting points between the present case and R v Brown amounted to a substantial miscarriage of justice.

The Supreme Court held that the Court of Appeal’s observation that its earlier decision in R v Brown would require reconsideration did not mean it had to undertake that reconsideration in this case. The Court of Appeal found the present offending to be more serious, justifying a higher starting point, and thus did not need to reassess the impact of section 9A. Furthermore, the Court found that the Court of Appeal’s assessment did not plainly give rise to a substantial miscarriage of justice, and the applicant was effectively seeking a second hearing of his appeal on the facts, which was not a proper basis for an appeal to the Supreme Court. Therefore, the application for leave to appeal was dismissed.

Orders