Waho v Police - [2018] NZHC 1767

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2018-416-000014

[2018] NZHC 1767

BETWEEN
TAWHITI TE RA LEROY HAPUKU WAHO

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 17 July 2018 (via AVL at Wellington)

Counsel:

M A Terekia for Appellant

C C Gullidge for Respondent

Judgment:

17 July 2018

JUDGMENT OF COLLINS J

Introduction

[1] This judgment explains why I am dismissing Mr Waho’s appeal against a sentence of two years and two months’ imprisonment imposed by Judge Hastings in the District Court on 2 May 2018.1 The sentence was, in my assessment, within the range that could reasonably be imposed in the circumstances of this case.

Background

[2] Mr Waho pleaded guilty to three sets of charges arising out of the same series of events:

1 Police v Waho [2018] NZDC 8761.

WAHO v NEW ZEALAND POLICE [2018] NZHC 1767 [17 July 2018]

(1)three charges of injuring with intent to injure2 and two charges of assault with a weapon,3 which relate to domestic violence against his then partner;

(2)one charge of male assaults female4 and one charge of threatening to kill,5 which relate to a second female victim; and

(3)one charge of common assault,6 which relates to a male victim.

Background

[3] On the evening of Saturday 24 June 2017, Mr Waho was hosting a party with his partner. In the early hours of Sunday 25 June, Mr Waho saw his partner and the other two victims kissing each other. Without warning, Mr Waho punched his partner in the mouth twice with a closed fist. She was hit so hard that she fell to the ground. Mr Waho then grabbed the male victim by the throat and squeezed so hard that the victim could not breathe. Mr Waho then punched the second female victim, causing her to fall to the ground. He then grabbed her throat and squeezed so hard that she could not breathe. The victim thought she was going to die. Mr Waho then repeatedly told her to shut up in expletive terms and said “I will kill you”.

[4] Mr Waho’s partner was crying and scared so she ran out of the room and hid out the front of the property. Mr Waho followed her and, once he found her, he punched her once in the head. He then grabbed her by the hair and dragged her around the back of the house and inside. Once inside, Mr Waho threw his partner on the ground. She hit her head on a coffee table as she fell. Mr Wako then punched her in the face with a closed fist numerous times. Mr Waho let his partner go only after another person intervened.

[5] Mr Waho’s partner went to a friend’s house. At 9.00 am on 25 June, Mr Waho arrived at the friend’s house and repeatedly told his partner to get into the truck that

2 Crimes Act 1961, s 189(2), maximum penalty five years’ imprisonment.
3 Section 202C,…

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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Details

Case: [2018] NZHC 1767
Decision Date: 17 July 2018

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Waho v Police involved an appeal by Tawhiti Te Ra Leroy Hapuku Waho against the sentence of two years and two months' imprisonment imposed by Judge Hastings in the District Court on 2 May 2018. Waho had pleaded guilty to multiple charges stemming from a violent incident involving his partner and two other individuals. The key legal issues before the court were whether the sentence was within the appropriate range, and if not, whether it was "manifestly excessive" such that it warranted alteration. The court examined the starting point of the sentence, the discounts for rehabilitative efforts, previous good character, and remorse, and the overall appropriateness of the sentence.

The court found that the starting point of three years and nine months' imprisonment was appropriate, as per the principles set out in Nuku v R, which considered the extreme violence, attacks to the head, vulnerability of the victims, and use of weapons. The discounts given by Judge Hastings for rehabilitative efforts, previous good character, and remorse were within the range reasonably available. The court rejected the argument that a greater discount for previous good character was warranted, noting that Waho had a previous conviction and no significant community contributions. The court also found the two-month discount for remorse to be within the acceptable range, despite the victim's doubts about Waho's genuine remorse. The overall sentence of two years and two months' imprisonment was deemed to be within the range that could reasonably be imposed in the circumstances.

The court concluded that there was no error in the sentence imposed by the District Court, and dismissed the appeal. The judgment emphasized that sentencing is not an exact science and that discounts for personal mitigating circumstances are specific to each case. Judge Hastings had carefully considered the relevant circumstances and the discounts were within the range reasonably available. Therefore, the appeal was dismissed, and the sentence remained as imposed by the District Court.

Orders