Wharerau v R - [2015] NZCA 299

IN THE COURT OF APPEAL OF NEW ZEALAND

CA658/2014
[2015] NZCA 299

BETWEEN	SHAYLENE WHARERAU Appellant
AND	THE QUEEN Respondent

Hearing:	30 June 2015
Court:	Winkelmann, Lang and Wylie JJ
Counsel:	A B Fairley for Appellant M A Corlett for Respondent
Judgment:	10 July 2015 at 10.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

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REASONS OF THE COURT

(Given by Winkelmann J)

The appellant, Ms Wharerau, was convicted following trial before Faire J and a jury on a charge of manslaughter. She was sentenced by Faire J to three years and two months’ imprisonment, and now appeals that sentence on the ground that it is manifestly excessive.

The circumstances of the offending

Ms Wharerau had been in a relationship with the victim for about six months at the time of the offending. It was a relationship in which there was some low-level violence. On 30 October 2012 Ms Wharerau and the victim were together at home when an argument broke out over the use of her phone. In the course of the argument the victim slapped Ms Wharerau across the face, and in return she punched him on the back. She then tried to use her phone to contact her cousin, but the victim broke it. He followed Ms Wharerau into her bedroom, throwing the phone on the floor multiple times.
Ms Wharerau picked up the phone and went to the kitchen and again the victim followed her. The kitchen was a confined space, and the victim was, in Ms Wharerau’s words, “really angry” with her. She grabbed a knife off the kitchen bench and swung it in the victim’s direction. She said she was trying to scare him away, but the knife stabbed the victim in the chest, puncturing his lung and his heart sac. Ms Wharerau then rinsed the knife, and went to the neighbour’s to call for help. After that she returned home and supported the victim until an ambulance arrived.
The victim received medical treatment for a collapsed lung, air in the chest cavity, blood in the chest cavity and blood in the pericardial sac. It is an unusual feature of this case that he died some time after receiving treatment, and after leaving hospital. Nevertheless, a post-mortem indicated that he had died as a result of the injuries sustained on 30 October.
The victim was 17 years old at the time of his death. Ms Wharerau was 20 years old at the time of her offending.

The sentence

The Judge proceeded to sentence Ms Wharerau on the basis of her account that she acted recklessly rather than deliberately when she stabbed the victim. He referred to cases he regarded as factually similar to this offending to assist him in selecting a starting point. These were cases involving defendants convicted of manslaughter who had stabbed their partners in the context of a domestic dispute. He referred in particular to the cases of R v Paton, R v Hu, R v Woods, R v…

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 Wharerau v R

Details

AGLC: Wharerau v R [2015] NZCA 299
Case: [2015] NZCA 299
Decision Date: 10 July 2015 at 10.30 am

CaseChat Overview and Summary

In Wharerau v R, the appellant, Ms Wharerau, appealed against her conviction for manslaughter, contending that the sentence imposed was manifestly excessive. Ms Wharerau had stabbed the victim during an argument, resulting in his death. She was sentenced to three years and two months’ imprisonment. The court was required to determine whether the sentence was manifestly excessive, considering the circumstances of the offence and the appropriate starting point for sentencing.

The Court of Appeal considered whether the Judge misdirected himself by treating the cases he referred to as factually similar, and whether he failed to give sufficient weight to the absence of premeditation and the fact that the fatal injury was caused by a reckless rather than intentional act. The Crown conceded that lack of intent was a factor distinguishing this case from those referred to by the Judge, but submitted that the Judge clearly took that into account and that the starting point he settled upon was appropriate when regard was had to all of the circumstances of Ms Wharerau’s offending.

The Court held that the starting point adopted by the Judge was within the appropriate range, having regard to the nature and circumstances of the act that led to the victim’s death. It found that the sentence was not manifestly excessive. The appeal was dismissed.

The final orders of the Court were that the appeal be dismissed, and the original sentence of three years and two months’ imprisonment be upheld.

Orders