Waitohi v The King - [2023] NZHC 3660

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-588

[2023] NZHC 3660

BETWEEN
REPARA WAITOHI

Appellant

AND

THE KING

Respondent

Hearing: 12 December 2023

Appearances:

J Y Yi for appellant

A F Mackenzie for respondent

Date of judgment:

13 December 2023

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 13 December 2023 at 3.00pm.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:
Joon Yi, Barrister, Auckland Meredith Connell, Auckland

WAITOHI v R [2023] NZHC 3660 [13 December 2023]

[1] Repara Waitohi appeals against the 1 November 2023 decision of Judge P Winter in the District Court at Auckland,1 consistently with an earlier sentencing indication,2 sentencing him to 27 months’ imprisonment on his guilty pleas to family violence charges.3

Background

[2] On 24 October 2022 — while subject to sentence for family violence offending against the same victim, and in relation to whom he was subject to a protection order
— Mr Waitohi twice strangled and otherwise assaulted her. He has prior convictions for family violence offending against other victims. The Judge’s sentencing indication took account also of adjacent violence against the present victim for which Mr Waitohi was not directly charged.

Judgment under appeal

[3] The Judge referred to the pre-sentence report’s assessments Mr Waitohi was “at high risk of re-offending and high risk of harm to others”, and “at serious risk of harming the victim”.4 After referring to the victim’s impact statement, in which she explained her “[genuine concerns] about repercussions from Mr Waitohi”,5 the Judge noted:6
Mr Waitohi for his part has told the Probation Service and the report writers that he is remorseful and realises that he acted badly. He has written a remorse letter saying he is sorry for what he has done, that he has a realisation of what happened, that he has had time to reflect and that he does not intend to harm the victim again.

The Judge also noted Mr Waitohi’s remorse was endorsed by the “experienced report writer”, and he accepted Mr Waitohi “is remorseful now”.7

1      R v Waitohi [2023] NZDC 25408.
2      R v Waitohi DC Auckland CRI-2022-004-7285, 27 April 2023 (Notes of Judge P Winter on sentencing indication).
3      Strangulation (x 2) (Crimes Act 1961, s 189A(a): maximum penalty, 7 years’ imprisonment); male assaults female (s 194(b): maximum penalty, 2 years’ imprisonment); contravenes protection order (Family Violence Act 2018, ss 90(a), 9 and 112(1)(a): maximum penalty, 3 years’ imprisonment).
4      R v Waitohi, above n 1, at [8].
5 At [9].
6 At [10].
7 At [15].

[4] The Judge adopted his sentencing indication’s 45-month starting point, and discounted it:8

… by 15 per cent for the matters raised in the cultural report; that is your upbringing; abuse; the extent of the violence and drugs in your upbringing; and your cultural disconnect. Together with the discount of 25 per cent for plea of guilty, that is a discount of 40 per cent. That is 18 months from the…

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 Waitohi v The King

Details

AGLC: Waitohi v The King [2023] NZHC 3660
Case: [2023] NZHC 3660
Decision Date: 13 December 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Repara Waitohi appealed against his 27-month imprisonment sentence for family violence charges, which the District Court at Auckland had imposed on 1 November 2023. The appeal centred on the sentencing judge's failure to discount the sentence for Waitohi's expressed remorse. The appeal was heard on 12 December 2023, with Joon Yi representing the appellant and A F Mackenzie appearing for the respondent. The judgment was delivered on 13 December 2023. The primary legal issue in this appeal was whether the sentencing judge erred in not applying a discount for the appellant's expressed remorse, which the appellant's counsel argued should have resulted in a 10% reduction in the sentence. The court examined the principles of sentencing, particularly the requirement to consider remorse as a mitigating factor under Section 9(2)(f) of the Sentencing Act 2002.

The court found that while the sentencing judge acknowledged the appellant's expression of remorse, it was not sufficient to warrant a discount in this case. The judge had noted that Waitohi, with a history of family violence against multiple victims, needed to demonstrate genuine and tangible remorse. The judge had considered the appellant's apology and remorse letter but concluded that these were insufficient in light of his ongoing violent behaviour. The court affirmed that remorse, to be effective in reducing a sentence, must be genuine and demonstrated through tangible actions, not just expressions of sorrow. Given that Waitohi's history showed a pattern of violence and a lack of genuine behavioural change, the court upheld the sentence, finding it was not manifestly excessive. Therefore, the appeal was dismissed.

Orders