Whaanga v The King - [2024] NZCA 14

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA586/2023
[2024] NZCA 14

BETWEEN	HARRY HIRIWI WHAANGA Appellant
AND	THE KING Respondent

Hearing:	12 February 2024
Court:	Collins, Woolford and Mander JJ
Counsel:	T Epati for Appellant M J M Mitchell for Respondent
Judgment:	13 February 2024 at 10.30 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
BThe sentence of 26 months’ imprisonment is quashed and substituted with a sentence of 22 months’ imprisonment.
CWe direct that a pre-sentence report as to the suitability of the proposed residence for home detention is prepared.
DLeave is granted to Mr Whaanga to apply to this Court under s 80K of the Sentencing Act 2002 to substitute the sentence of 22 months’ imprisonment with one of six months’ home detention.

____________________________________________________________________

[Reasons to follow]

Solicitors:
Elvidge & Partners, Napier for Appellant
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent

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: [2024] NZCA 14
Decision Date: 13 February 2024 at 10.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Harry Hiriwi Whaanga, contested the sentence imposed upon him by the High Court. Whaanga sought to appeal the 26 months’ imprisonment handed down, arguing that it was excessively severe. The Crown, represented by the Attorney-General, defended the original sentence. The appeal was heard by Collins, Woolford, and Mander JJ, who were tasked with determining whether the original sentence was appropriate and whether a different punishment should be considered.

The legal issues central to this appeal were the proportionality of the sentence and the availability of alternative punishments. The Court had to assess whether the original sentence was within the bounds of what was reasonable and just, taking into account the nature and circumstances of the offence, as well as the appellant's personal circumstances. Additionally, the Court needed to consider whether home detention would be a suitable alternative to imprisonment, especially in light of Whaanga’s expressed willingness to serve such a sentence.

The Court found that the original sentence was indeed too severe. They concluded that a sentence of 22 months’ imprisonment would be more appropriate. Furthermore, the Court directed that a pre-sentence report be prepared to assess the suitability of home detention as an alternative. The Court also granted leave to Whaanga to apply for a sentence of six months’ home detention under section 80K of the Sentencing Act 2002. The Court believed that home detention could be a more effective and humane form of punishment, given Whaanga's circumstances and the nature of his offence.

Orders