BThe sentence of two years and three months’ imprisonment imposed in the District Court on the charge of wounding with intent to injure is set aside. A sentence of one year and seven months’ imprisonment is substituted.
CThe concurrent sentence of six months’ imprisonment imposed in the District Court on the charge of intentional damage is set aside. A concurrent sentence of three months’ imprisonment is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

On 12 November 2021, Wikitoria Wiki appeared for sentencing before Judge Orchard in the District Court at Kaikohe on one charge, as a party, of wounding with intent to injure and one charge of causing intentional damage to property.[1] In the circumstances to which we refer below, the Judge sentenced the appellant to two years and three months’ imprisonment.
[1]R v Awarau [2021] NZDC 22319 [District Court judgment].
On appeal to the High Court, Brewer J determined the Judge’s sentence was not manifestly excessive and dismissed the appeal.[2] Ms Wiki was granted leave to bring a second appeal.[3]

Background

[2]Wiki v R [2022] NZHC 430 [High Court judgment].

[3]Wiki v R [2022] NZCA 319.

We have taken what follows from the summary of facts to which Ms Wiki pleaded guilty. It is important to note that what follows may be inaccurate in respect of the actions of Ms Wiki’s co‑offender, Mr Awarau, as there was a disputed facts hearing in respect of his offending.
Early in January 2019, Ms Wiki and the complainant, the appellant’s former partner, had an argument at the complainant’s property. Ms Wiki left the property but returned some 15 minutes later with Mr Awarau and another co-offender, Ms Robson. Mr Awarau is Ms Wiki’s new partner. Ms Robson, an associate, played only a minor part in the events which followed.
Armed with what was described as an axe or wood splitter, with a small blade, Ms Wiki proceeded to break every window and to dent several panels of the complainant’s vehicle. This led to the intentional damage charge.
The complainant came out of his house and picked up a metal bar about a foot long and two inches thick. A scuffle ensued between the complainant and Mr Awarau. During this scuffle the complainant was knocked to the ground. The summary of facts records that Mr Awarau stomped on the complainant’s head, chest and stomach several times, and also struck him on the head with the metal bar to which we have referred. Ms Wiki then approached and gave the axe to Mr Awarau who struck the complainant on 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.

Continue reading Wiki v The the Queen

Details

AGLC: Wiki v The the Queen [2022] NZCA 360
Case: [2022] NZCA 360
Decision Date: 5 August 2022 at 12.30 pm

CaseChat Overview and Summary

Wikitoria Maria Wiki appealed against her sentence imposed by the District Court at Kaikohe. The District Court had sentenced Ms Wiki to two years and three months' imprisonment for wounding with intent to injure and a concurrent six months' imprisonment for causing intentional damage to property. Ms Wiki brought an appeal on the basis that the District Court Judge's discounts for mitigating factors were insufficient, specifically that there should have been a discount for personal and cultural factors. The High Court dismissed the appeal. Ms Wiki was granted leave to bring a second appeal. The Court of Appeal accepted that the High Court Judge erred in treating the starting point in the District Court as having been three years and six months, which neither party contended for, and by imposing an uplift for the intentional damage charge, which the Crown did not seek. The Court of Appeal considered the matter afresh and concluded that the end sentence was manifestly excessive and that a lesser sentence must be imposed. The Court of Appeal set aside the sentence of two years and three months' imprisonment imposed in the District Court on the charge of wounding with intent to injure and substituted a sentence of one year and seven months' imprisonment. The Court of Appeal also set aside the concurrent sentence of six months' imprisonment imposed in the District Court on the charge of intentional damage and substituted a concurrent sentence of three months' imprisonment.

Orders