Wawatai v Police

[2015] NZHC 406

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000426 [2015] NZHC 406

BETWEEN

MITCHELL WAWATAI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	9 March 2015
Appearances:	S E Giles for Appellant T J McGuigan for Respondent
Judgment:	9 March 2015

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 9 March 2015 at 5.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

WAWATAI v NZ POLICE [2015] NZHC 406 [9 March 2015]

Introduction

[1]      Mitchell  Wawatai  appeals  a  sentence  of  15  months  imposed  by  Judge

McAuslan on one charge of male assaults female.1

[2]      The Judge took a starting point of 18 months’ imprisonment and imposed an uplift of three months to reflect eight previous convictions for violence against the same victim (Mr Wawatai’s partner).   She then allowed a 25 per cent discount for Mr Wawatai’s  guilty  plea  and  a  further  one  month  for  remorse  and  efforts  at rehabilitation (which equated to a 5% discount, making the total discount 30%). Mr Wawatai says that the starting point was too high and the discount allowed for remorse and efforts at rehabilitation too low, resulting in a sentence that is manifestly excessive.

Starting point

[3]      The offending arose from an incident at the home of Mr Wawatai and his partner.  Other family members were present.  Mr Wawatai was drunk.  During an argument he punched his partner in the face with a closed fist.  A family member took him outside but he returned and attempted, apparently unsuccessfully, to land further punches.   Mr Wawatai was sentenced on the basis of there being a single punch which caused a bleeding nose and swelling to his partner’s face.

[4]      Mr McGuigan, for the Crown, accepted that the starting point taken by the Judge was outside the usual range for such offending. Although there is no guideline judgment for this type of offending, there are some comparable cases which are of assistance, principally Grayson v NZ Police,2  R v Reihana,3  Mann v Police4  and Williams  v Police.5     These cases  took  starting  points  of between  five  and  nine months’ imprisonment for offending that was broadly comparable though, as counsel

acknowledged, it is difficult to find a case that is exactly comparable.  Looking at the circumstances of this case against the comparator cases I consider that a starting

point of seven months would have been appropriate.

1      NZ Police v Wawatai, DC Manukau CRI-2014-092-009623, 4 November 2014.

2      Grayson v NZ Police HC Hamilton CRI-2006-419-31, 6 April 2006.

3      R v Reihana CA143/03, 26 June 2003.

4      Mann v Police [2012] NZHC 2613.

5      Williams v Police [2014] NZHC 3255.

[5]      Mr Wawatai does not complain about the three month uplift.  Mr McGuigan suggested that the uplift was, in fact, generous, given Mr Wawatai’s serious history but does not seek to have me interfere with it.

Discounts

[6]      Mr  Wawatai  has  an  acknowledged  alcohol  problem  and  has  previously attempted to address it.   Following the current offending he undertook further rehabilitation  programmes  and  a  vocational  training  programme  (anger  at  his inability to support his family being one of the contributing factors to his offending) and secured the offer of a bed at WISE Guys, a residential rehabilitation facility.  A letter to his partner that was placed before the Judge disclosed genuine remorse and intention to work towards rehabilitation.

[7]      Mr McGuigan submitted that the Judge had clearly turned her mind to the issues of rehabilitation and remorse and that the discount given was open to her. However, it is difficult to see how a single discount of 5% could adequately reflect both these factors for which there was strong evidence.

[8]      I accept Ms Giles’ submission that the discount of 5% to reflect these factors was inadequate and led to a sentence that was manifestly excessive.  A discount of

5% to reflect remorse and a discount of 10% to reflect Mr Wawatai’s efforts at

rehabilitation would have been appropriate.

Result

[9]      A starting point of seven months with an uplift of three months and total discount of 40 per cent would have been appropriate.  This would result in an end sentence of six months’ imprisonment.

[10]     The appeal is allowed.  The sentence of 15 months’ imprisonment is quashed

and substituted with one of six months.

P Courtney J