Wati v R

Case [2015] NZHC 2064 28 August 2015

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IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2015-442-18 [2015] NZHC 2064

BETWEEN
ALLAN NELSON WATI

Appellant

AND

THE QUEEN Respondent

Hearing: 28 August 2015

Counsel:

J C S Sandston for Appellant
M A O'Donoghue for Respondent

Judgment:

28 August 2015

JUDGMENT OF BREWER J

Solicitors/Counsel: John Sandston (Nelson) for Appellant
O’Donoghue Webber (Nelson) for Respondent

WATI v THE QUEEN [2015] NZHC 2064 [28 August 2015]

Introduction

[1] Mr Wati appeals against a sentence of two years and nine months’

imprisonment imposed by Judge Zohrab in the Nelson District Court on 23 June

2015.Mr Wati was sentenced on the following charges: (a) male assaults female (x4);1
(b) assault with weapon;2

(c) threatening to kill;3 and

(d) assault with intent to injure.4

[2] Mr Wati appeals on the basis that Judge Zohrab erred:

(a) in adopting a starting point of 27 months’ imprisonment for the charges involving the female complainant because the maximum penalty for male assaults female is two years’ imprisonment and the threatening to kill charge has a maximum penalty of seven years’ imprisonment;

(b)in adopting a starting point that was manifestly excessive in the circumstances for the assault with intent to injure charge; and

(c) in that earlier sentence indications had included a three month discount for the complainant’s attitude and that discount was not
applied at sentencing.

1      Crimes Act 1961, 194(b). Maximum penalty of two years’ imprisonment.
2      Section 202C(1)(a). Maximum penalty of five years’ imprisonment.
3      Section 306. Maximum penalty of seven years’ imprisonment.
4      Section 193. Maximum penalty of three years’ imprisonment.

Background

The offending

[3] On 29 May 2014, Mr Wati and the complainant had been in a relationship for five weeks. They were at Mr Wati’s address in Blenheim. They agreed to have a female prostitute come to the address and engage in drinking alcohol and a “threesome”. Mr Wati subsequently became aggressive during the sexual activity because he felt he was being left out of the arrangement. Mr Wati pulled the victim’s hair, causing her to scream out in pain. He then poured the contents of a wine bottle onto her. He then introduced the wine bottle into the victim’s vagina. At that point the female prostitute left the address.

[4] The victim then tried to hide her face under the blankets while Mr Wati was verbally abusing her. Mr Wati then punched her in the nose, causing it to bleed. This was the subject of the first charge of male assaults female. The victim began kicking him to try and get away.

[5] After this, Mr Wati left the address in the victim’s car with her cellphone so she could not call for help. He returned about 15 minutes later. The victim let him back into the house and Mr Wati began stroking her head and apologising for hitting her. But he then began questioning her about her previous relationships and became enraged with her again. He threw the victim’s cellphone at her head. It hit her in 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 Wati v R

Details

AGLC: Wati v R [2015] NZHC 2064
Case: [2015] NZHC 2064
Decision Date: 28 August 2015

CaseChat Overview and Summary

Mr Wati appeals against the sentence of two years and nine months’ imprisonment imposed by the Nelson District Court. The District Court found Mr Wati guilty of four counts of male assault on a female, assault with a weapon, threatening to kill, and assault with intent to injure. The High Court was required to determine whether the District Court had erred in its sentencing of Mr Wati, specifically whether the starting point for sentencing was appropriate and whether the sentence was manifestly excessive or wrong in principle. The High Court held that the District Court's approach was justified, and that the sentence fell within the range available for domestic violence offending. The Court found that the District Court was correct in its starting points and adjustments for totality. The Court also found that the sentence was not manifestly excessive or wrong in principle. The Court dismissed the appeal.

In reaching its decision, the Court considered the principles governing sentence appeals, the nature of the offending, and the approach taken by the District Court. The Court found that the District Court's approach was justified, and that the sentence was not manifestly excessive or wrong in principle. The Court noted that the assault on the police officer was a particularly serious aggravating factor, and that an uplift of between six and nine months would have been justified to reflect Mr Wati's significant and relevant history of violence and other offending. However, the Court found that the end sentence was lenient in the circumstances of the case, and that it was well within the range available to the District Court. The Court also noted that there was no credible evidence before it to support the proposition that Mr Wati was remorseful, and that the District Court made no error in not giving a reduction for remorse.

Orders