Wiki v The the Queen - [2022] NZHC 430

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

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

CRI-2021-488-58

[2022] NZHC 430

BETWEEN
WIKITORIA MARIA WIKI

Appellant

AND

THE QUEEN

Respondent

Hearing: 2 February 2022

Counsel:

C G Farquhar for Appellant C S Taylor for Respondent

Judgment:

11 March 2022

JUDGMENT OF BREWER J

This judgment was delivered by me on 11 March 2022 at 11 am

Registrar/Deputy Registrar

Solicitors/Counsel:
Claire Farquhar (Auckland) for Appellant
Marsden Woods Inskip Smith (Whangārei) for Respondent

WIKI v R [2022] NZHC 430 [11 March 2022]

Introduction

[1] Ms Wiki and Mr Awarau attacked her ex-partner, Mr Matthews. The attack left Mr Matthews with an approximately 8 cm cut on his right arm (which went through to the bone), three fractured ribs, and contusions to his right hand and both legs.

[2] Ms Wiki and Mr Awarau were charged with intentionally causing Mr Matthews grievous bodily harm. This is an offence which has a maximum penalty of 14 years’ imprisonment.1 Ms Wiki was also charged with intentionally damaging Mr Matthews’s car, an offence with a maximum penalty of seven years’ imprisonment.2

[3] On the morning of trial, the charge of intentionally causing grievous bodily harm was reduced to a charge of wounding with intent to injure.3 The maximum penalty is seven years’ imprisonment.

[4] Ms Wiki then pleaded “guilty” to the reduced charge and to the charge of intentional damage. Mr Awarau also pleaded guilty to the reduced charge.

[5] On 12 November 2021, Judge DJ Orchard sentenced Ms Wiki to two years and three months’ imprisonment.4 Mr Awarau was sentenced to three years’ imprisonment.

[6] Ms Wiki now appeals her sentence. She contends her sentence is manifestly excessive because Judge Orchard did not properly take into account her mitigating personal circumstances. Ms Wiki’s submission is that her sentence should have been less than two years and that it should have been commuted to a sentence of home detention.

1      Crimes Act 1961, s 188(1).
2      Section 269(2)(a).
3      Section 188(2).
4      R v Awarau [2021] NZDC 22319.

[7] My task is to assess whether there has been an error in Ms Wiki’s sentencing such that a different sentence should be imposed. A manifestly excessive sentence would be such an error.

Disputed facts hearing

[8] There was a disputed facts hearing subsequent to Ms Wiki and Mr Awarau entering their pleas of guilty. That was because Mr Awarau denied the Crown’s assertion that he caused the wound to Mr Matthews’s arm by striking him with an axe. Judge Orchard concluded that the Crown had not proved that Mr Awarau caused the wound.5

[9] Ms Farquhar, for Ms Wiki, submits that I should apply to this appeal only the facts set out in the summary of facts operative when Ms Wiki pleaded guilty. I accept Ms Farquhar’s submission. The summary of facts said:

The defendant WIKI has approached and given the axe to the defendant AWARAU. The defendant AWARAU has struck the complainant on the right arm…

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] NZHC 430
Case: [2022] NZHC 430
Decision Date: 11 March 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Wiki, the appellant, appealed against her sentence for wounding with intent to injure, which was two years and three months’ imprisonment. Wiki was also sentenced for intentionally damaging property, which was six months’ imprisonment, to run concurrently with the first sentence. The appellant’s sentence was for her involvement in a violent confrontation with Mr Matthews, a former partner, in which she and her partner at the time, Mr Awarau, assaulted him. Wiki argued that her sentence was manifestly excessive and should be reduced, or replaced with a sentence of home detention. The appellant’s counsel submitted that the starting point should have been three years instead of three years and six months’ imprisonment. The starting point was appropriate, but the appellant’s sentence was calculated on the basis of a three-year starting point. The court found that the appropriate starting point should have been four years’ imprisonment, taking into account Wiki’s involvement in damaging Mr Matthews’s car. The court found that Wiki was entitled to a discount of 15 per cent for her rehabilitation efforts, five per cent for her personal circumstances, five per cent for her time on restrictive bail, and 15 per cent for her guilty pleas. This resulted in an appropriate sentence of two years and five months’ imprisonment. The appeal was dismissed.

Orders