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…
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- Case
- [2020] NZHC 298
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
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Decision
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Ratio Decidendi
Legal Principle Established
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