AThe application to admit fresh evidence on appeal is granted.
BThe appeal is allowed.
CThe sentence of three years and four months’ imprisonment is quashed and substituted with a sentence of 12 months’ home detention subject to the provision of a suitable address approved by the Department of Corrections.
DWe direct that a further pre-sentence report under s 26A of the Sentencing Act 2002 be prepared covering the suitability of the proposed home detention address.
ELeave is reserved to the parties to come back to the Court in the event of any difficulties in providing an approved address.

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REASONS OF THE COURT

(Given by Woolford J)

On 29 March 2018, in the District Court at Napier, Hine Wikohika pleaded guilty to one representative charge of supplying methamphetamine to various people over a 10 and a half month period from 1 November 2016 to 13 November 2017. Following a disputed facts hearing on 16 August 2018, Judge Rea found that Ms Wikohika had supplied a total of 536.25 grams of methamphetamine over a relatively short period of time between 4 July 2017 and 18 August 2017.[1]
[1]R v Wikohika [2018] NZDC 16940.
On 9 November 2018, the Judge sentenced Ms Wikohika to three years and four months’ imprisonment.[2] He granted her bail pending appeal against sentence. On 5 February 2019, in the High Court at Napier, Churchman J dismissed Ms Wikohika’s appeal.[3] He continued her bail pending application for leave to appeal to this Court. Ms Wikohika was subsequently granted leave by this Court to bring a second appeal against sentence on 27 February 2020.[4]
[2]R v Wikohika [2018] NZDC 24128 [District Court sentencing].
[3]Wikohika v R [2019] NZHC 79 [High Court appeal].
[4]Wikohika v R [2020] NZCA 30.
Counsel for Ms Wikohika now submits that following this Court’s reassessment of the guidelines for sentencing of methamphetamine offenders in Zhang v R,[5] the sentence of three years and four months’ imprisonment is manifestly excessive. A more appropriate sentence would be two years’ imprisonment which could then properly be commuted to 12 months’ home detention.

Ms Wikohika’s role in offending

[5]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

Operation Lariat was a police operation targeting the supply of methamphetamine in Hawkes Bay between 1 November 2016 and 13 September 2017. Police were able to retrieve text data back to November 2016 and were authorised to monitor certain telephone numbers live pursuant to surveillance warrants from June 2017.
Shane Thompson was the principal offender. He is Ms Wikohika’s brother. Between November 2016 and September 2017, he supplied 4.2 kilograms of methamphetamine to others…

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 Wikohika v R

Details

AGLC: Wikohika v R [2020] NZCA 352
Case: [2020] NZCA 352
Decision Date: 18 August 2020 at 9 am

CaseChat Overview and Summary

The appeal in Wikohika v R was brought by the appellant, Hine Wikohika, against her sentence of three years and four months' imprisonment for supplying methamphetamine. The Court of Appeal granted the application to admit fresh evidence concerning Wikohika's diagnosis and treatment for an aggressive form of breast cancer. The primary legal issue the Court had to decide was whether the sentence imposed by the District Court was manifestly excessive in light of the updated sentencing guidelines for methamphetamine offending, as well as Wikohika's exceptional personal circumstances.

The Court of Appeal found that the District Court Judge had correctly assessed Wikohika's minimal role in her brother's drug empire and had appropriately discounted the starting point for sentencing. However, the Court concluded that the sentence of three years and four months' imprisonment was manifestly excessive given the updated sentencing guidelines and Wikohika's exceptional personal circumstances. The Court allowed the appeal, quashed the original sentence, and substituted it with a sentence of 12 months' home detention, to commence on 1 October 2020, conditional on the provision of an address found to be suitable by the Department of Corrections. The Court also directed that a further pre-sentence report be prepared, covering the suitability of the proposed home detention address.

The final orders of the Court were that the application to admit fresh evidence on appeal was granted, the appeal was allowed, and the sentence of three years and four months' imprisonment was quashed and substituted with a sentence of 12 months' home detention. Leave was reserved to the parties to come back to the Court in the event of any difficulties in providing an approved address.

Orders