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Watene v The King

Watene v The King

Case [2023] NZHC 441 8 March 2023

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IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2022-443-43

[2023] NZHC 441

BETWEEN
TANIA LOUISE NGAHINA WATENE

Appellant

AND

THE KING

Respondent

Hearing:
6 October 2022, 19 October 2022, 25 November 2022,

19 December 2022 and 8 March 2023 and 14 March 2023

Counsel:

A R Laurenson for Appellant H Bullock for Respondent

Judgment:

8 March 2023

Re-issued:
Re-issued:

28 March 2023

5 April 2023

JUDGMENT OF ISAC J

[Appeal against sentence]

Introduction

[1] Ms Watene1 appeals a sentence of three years and six months’ imprisonment together with an order for reparation of $150,0002 imposed on charges of arson,3 assault with a weapon,4 and refusing to permit a blood specimen to be taken when required (third offence).5

1      The appellant is identified in the Court papers and decisions below as Tania Louise Ngahina Cresswell. Ms Watene confirmed at the hearing on 8 March 2023 that she prefers to be known by the surname Watene. I have adopted that name in this judgment.
2      R v Watene (Cresswell) [2022] NZDC 15964 [Sentencing Notes].
3      Crimes Act 1961, s 267(1)(b); maximum sentence of 14 years’ imprisonment.
4      Section 202C; maximum sentence of five years’ imprisonment.
5      Land Transport Act 1998, ss 60(1)(b), 60(3) and 72(1)(a); maximum sentence of two years’ imprisonment or a $6,000 fine, and mandatory disqualification of more than one year.

WATENE v R [2023] NZHC 441 [5 April 2023]

[2] The original grounds of appeal were that the five-year starting point adopted by the Judge was too high, and inadequate discounts were provided for personal circumstances, remorse and previous good character. Finally, it was submitted that the order for reparation was excessive.

[3] Following her sentencing Ms Watene applied for bail pending appeal. This was granted by the District Court on 19 August 2022.6 It follows that she has remained in the community and in employment since sentencing without further incident.

[4] When Ms Watene first appeared in this Court on 25 October 2022, I raised with Mr Laurenson, for Ms Watene, whether she was in a position to make a substantial reparation payment either through recourse to her KiwiSaver fund, or whānau, or both. It seemed that the only realistic way of securing a just outcome which saw the financial harm caused to the victim addressed in some modest way was a community based sentence that would keep Ms Watene in employment and with the means of making reparation. Unfortunately, this possibility has resulted in significant delay, and four further hearings.

[5] In a judgment of 8 March 2023, I allowed Ms Watene’s appeal and sentenced her to home detention, having heard from counsel that her proposed home detention address remained available. The following day counsel advised the Court that this was no longer the case. While Ms Watene had an alternative address available, Community Corrections would require a further two weeks to assess its suitability. In light of this, on 9 March 2023 I recalled…

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 Watene v The King

Details

AGLC: Watene v The King [2023] NZHC 441
Case: [2023] NZHC 441
Decision Date: 8 March 2023

CaseChat Overview and Summary

Tania Louise Ngahina Watene (Ms Watene) appeals her sentence of three years and six months' imprisonment, along with an order for reparation of $150,000, for charges of arson, assault with a weapon, and refusing to permit a blood specimen to be taken when required. Ms Watene argues that the starting point for her sentence was too high, that inadequate discounts were provided for personal circumstances, remorse, and previous good character, and that the reparation order was excessive. The court must determine whether there was a material error in the sentence imposed and whether a different sentence should have been imposed.

The court found that the starting point of five years was appropriate, considering the totality of the offending and the aggravating factors, including the use of significant violence, the extent of the damage caused by the fire, and the risk of danger the fire posed to others. The court also found that there was no error in the approach taken by the sentencing judge regarding discounts for personal circumstances, remorse, and previous good character. However, the court found that the reparation order was manifestly excessive and that there had been a material change of circumstances since the sentencing, as Ms Watene had made significant voluntary payments toward reparation.

In light of the significant steps taken by Ms Watene to address the financial harm caused by her offending and demonstrate remorse, the court imposed a sentence of 12 months' home detention on the charge of arson, deferring the start of her sentence to allow for necessary arrangements to be put in place. The court also made a reparation order in the sum of $30,000, taking into account the payments Ms Watene had already made. Ms Watene is convicted and discharged on the remaining charges, with her period of disqualification on the driving charge remaining unaltered.

Orders