Whiu v Police - [2020] NZHC 298

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2019-488-47

[2020] NZHC 298

BETWEEN
WINDSOR ION WHIU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 26 February 2020

Appearances:

M A Littlefair for the Appellant C Taylor For the Respondent

Judgment:

26 February 2020

ORAL JUDGMENT OF GORDON J

Solicitors: Crown Solicitor, Whangarei
Rune Law, Kaikohe

WHIU v POLICE [2020] NZHC 298 [26 February 2020]

Introduction

[1] The appellant, Windsor Ion Whiu, was sentenced to two years and three months’ imprisonment on one charge of breach of release conditions,1 one charge of breach of protection order,2 and one charge of wilful damage3 after pleading guilty to those charges. He now appeals against that sentence on the basis that the starting point adopted was manifestly excessive.

[2] Mr Whiu’s notice of appeal is out of time but the respondent takes no issue with that.

Background facts

[3] On 27 September 2019, at around 2.15 am, Mr Whiu went to the address of the victim, who is the protected person under the protection order to which he is subject. Mr Whiu and Ms G are former partners and have three children together who are under the care of Oranga Tamariki.

[4] Mr Whiu entered the property while the victim was sleeping, yelling outside her window and waking her. In response to the victim questioning why he was at the address, Mr Whiu said “I’m here to see if you are with another man.” The victim closed her window, telling Mr Whiu she did not wish to talk to him. When Mr Whiu advised he wanted to talk to her about their children she went to the front door to speak to him. The conversation went on to other matters so the victim closed the front door and contacted the police. Mr Whiu then kicked a rubbish bin, breaking it in half, as he left the address. The police located Mr Whiu nearby soon after.

[5] He admitted breaching the protection order and release conditions but said he was invited into the address after arriving there. He told the police he got angry when the victim said she was going to call the police so he kicked the rubbish bin before leaving.

1      Sentencing Act 2002, s 96(1). Maximum penalty: one year’s imprisonment or a fine not exceeding
$2000.
2      Family Violence Act 2018, ss 90(b) and 112(1)(a). Section 112(1)(a) carries a maximum penalty of three years’ imprisonment.
3      Summary Offences Act 1981, s 11(1)(a). Maximum penalty: 3 months’ imprisonment or fine not exceeding $2,000.

The District Court Decision

[6]On 13 November 2019 Mr Whiu was sentenced in the Kaikohe District Court.4

[7] Taking into account the repeated prior offences against the victim from 2014 to 2019 (including assaults, threats to kill, and a burglary), and the psychological harm to the victim from the contact, the Judge adopted a starting point of two years for the breach of protection order and wilful damage. Turning to 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.

Keep reading for free

Create a free CaseChat account to read Whiu v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NZHC 298
Decision Date: 26 February 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Windsor Ion Whiu appeals against his sentence of two years and three months’ imprisonment for breach of release conditions, breach of a protection order, and wilful damage. The appeal focuses on the starting point adopted by the Judge as manifestly excessive. The respondent does not contest the timeliness of the appeal. The appellant contends that the starting point should have been six to nine months for the overall sentence on all charges, resulting in a final sentence of four to eight months after applying the discount for an early guilty plea. The respondent argues that the starting points of two years and eight months were within range, and the cumulative sentence was appropriate given the different nature and time of the offending.

The court considered the starting points for the breach of a protection order and breach of release conditions. For the breach of protection order, the court held that the starting point of two years was too high given there was no physical violence and the kicking of the rubbish bin occurred after Whiu left the house. The court found a starting point of six months would be consistent with similar cases. For the breach of release conditions, the court held that the starting point of eight months was too high. The court found a sentence of two months appropriate given the failure to report as the only offence. The court also considered the uplift for other convictions and agreed with a one-month uplift. Finally, the court agreed with a 25 per cent discount for the guilty plea, resulting in a final sentence of six months.

The appeal is allowed, and a final sentence of six months’ imprisonment is substituted. This comprises four months for the breach of the protection order, two months (cumulative) for the breach of release conditions, and a concurrent sentence of one month for the wilful damage charge.

Orders