Wikohika v R
[2020] NZCA 352
•18 August 2020 at 9 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA52/2019 [2020] NZCA 352 |
| BETWEEN | HINE WIKOHIKA |
| AND | THE QUEEN |
| Hearing: | 28 July 2020 |
Court: | French, Woolford and Dunningham JJ |
Counsel: | M J Phelps for Appellant |
Judgment: | 18 August 2020 at 9 am |
JUDGMENT OF THE COURT
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.
____________________________________________________________________
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 at both wholesale and retail levels. On termination of the police operation, he was in possession of a further 2.6 kilograms for supply. Ms Wikohika lived in Mr Thompson’s house with him and his partner as well as her own partner, Freeman Babbington-Dougherty, and their four children. All four adult members of the household were charged with various drug dealing offences.
The District Court Judge found that over a relatively short period of time between 4 July 2017 and 18 August 2017, Ms Wikohika was involved in the direct supply to others of four separate quantities of methamphetamine — 63.25 grams on 4 July, 14 grams on 10 July, 28 grams on 11 July, and then on 18 August Ms Wikohika delivered 340 grams to a Mr Wirihana for storage at a safe house.
In addition, Ms Wikohika was involved as a party to four other separate transactions — 28 grams on 9 July, 28 grams on 11 July, 28 grams on 18 August to one person and seven grams to another person.
The District Court Judge found that all the drugs supplied to others and the delivery to Mr Wirihana were made by Ms Wikohika on instructions from her brother, who was out of Hawkes Bay on the specific dates. Mr Thompson had rung Ms Wikohika and instructed her to carry out the transactions as part of his drug dealing business. Because of the unavailability of Ms Wikohika’s partner, who would otherwise have carried out the transactions, she followed her brother’s instructions on the dates specified.
Ms Wikohika’s personal circumstances
Ms Wikohika is 36 years old. She has now separated from her partner. Her four children remain in her care. Their ages range from nine to 18 years old. She has no previous convictions. She has been on bail since her arrest without incident.
At the time of the offending, Ms Wikohika was the only member of the household who worked. She held two jobs — a full time supervisor at the Hastings TOP 10 Holiday Park and a part time cleaning job. She was fired from her second job with the cleaning company when they found out about the charges laid against her. She is also now unable to work as a supervisor at the Holiday Park because of her health, but she says the Holiday Park would have her back if she was able to work.
In July 2019 Ms Wikohika was diagnosed with breast cancer. Her cancer is an aggressive type of breast cancer. The Crown did not oppose fresh evidence of her diagnosis and treatment being admitted on appeal, and accordingly we grant the application to admit that evidence.
Ms Wikohika has undergone several major surgeries, radiotherapy and chemotherapy. Her treatment is ongoing, and she is expected to complete treatment in July 2021.
Her oncologist is of the view that it would be best if Ms Wikohika could remain in her home environment with support from her whānau and medical team to maximise the chances of successful treatment.
District Court sentencing
At the outset of the original sentencing notes, the Judge referred to Ms Wikohika as “collateral damage” from her brother’s drug empire in Hawkes Bay.[6] The Judge then outlined Ms Wikohika’s personal circumstances because, he said, they were completely different to most people in her situation.[7] She did not use drugs. She was the only adult member of the household who was working. She did not receive any financial benefit as a result of her offending. The Judge noted that he asked Ms Wikohika at the disputed facts hearing how on earth she had got herself involved in the offending and what she expected to happen if the police walked in the door. The Judge recorded her advice that she had discussed this both with her brother and with her partner and they indicated to her that it was all down to them and there would be no repercussions on her. The Judge commented that Ms Wikohika now knew, very much to her cost, that that was not the case at all.[8] The Judge noted that Ms Wikohika had no previous convictions and from what he had read in the various pre-sentence reports she was entirely pro-social.[9]
[6]District Court sentencing, above n 2, at [1].
[7]At [2].
[8]At [3].
[9]At [4].
The Judge then referred to the recommendation of home detention made by the pre-sentence report writer.[10] He said he could understand the reasons for that, both at a professional and a human level. However, it seemed to the Judge that the pre‑sentence report writer may not be familiar with the judgment of R v Fatu,[11] and the sentencing tariffs that were imposed and the way the sentencing courts have to go about sentencing for this type of offending. The Judge noted that there had certainly been comments by senior members of the judiciary about sentencing in this area in recent times and it may be that a review was going to be undertaken at some point. However, the Judge said it was for him to sentence based on the law as it was currently and in accordance with the judicial oath that he had taken.
[10]At [9].
[11]R v Fatu [2006] 2 NZLR 72 (CA).
The Judge noted that the case which was binding on him (R v Fatu) says the starting point for the quantity of drugs supplied by Ms Wikohika (536.25 grams) was about 10 years’ imprisonment. However, the Crown had looked at the reality of the situation and suggested that a significant discount from that could be granted, which would make the appropriate starting point one of six years’ imprisonment. The Judge noted that this actually took the sentence out of the band in which Ms Wikohika’s offending would normally fall, but he agreed with the Crown’s approach that the circumstances of this case warranted such a reduction.[12]
[12]District Court sentencing, above n 2, at [11].
From the starting point of six years’ imprisonment, the Judge gave a six‑month discount for Ms Wikohika’s lack of previous convictions and a further six‑month discount for what would be a dramatic impact on her children. The Judge also took into account the personal tragic circumstances that Ms Wikohika had encountered in recent times, which warranted a further six month discount.[13] It appears these tragic circumstances included separation from her partner following a domestic incident in which the police were involved and the death of a cousin.
[13]At [14].
Overall, there was a reduction of 18 months (or 25 per cent) from the starting point, leaving a revised sentence of four years and six months’ imprisonment. The Judge then gave Ms Wikohika a full 25 per cent discount for her plea of guilty and, in the end, that meant a final sentence of three years and four months’ imprisonment.[14] The Judge noted that that sentence did not fall within the home detention range and, therefore, home detention could not be considered in this case.[15]
High Court appeal
[14]At [15].
[15]At [16].
Counsel for Ms Wikohika sought an adjournment of the appeal against sentence on the basis that the Court of Appeal was scheduled to hear a number of appeals on 16 and 17 April 2019, following an indication that it may reconsider certain aspects of R vFatu.[16] Churchman J, however, declined the application to adjourn the appeal on the basis that Ms Wikohika should be able to join her appeal with the others scheduled to be heard in April.[17]
[16]Wikohika v R [2019] NZHC 51.
[17]At [12]–[13].
On appeal, therefore, the High Court Judge indicated that he had some sympathy for Ms Wikohika and acknowledged that, not only was she drawn into the offending by her brother, but that she also appeared to have been under the misapprehension as to the possible consequences for her should the offending come to light.[18] The High Court Judge was of the view that the District Court Judge working within the constraints of R v Fatu was generous in identifying the starting point and made no error in doing so.[19] It was clear, he said, that the courts did not have to slavishly apply R v Fatu and ignore the actual role played by the defendant in the offending. He was of the view that this was the approach taken by the District Court Judge, which illustrated that R vFatu was not a straitjacket and that the courts were able to depart from its guidelines in appropriate cases.[20] He therefore dismissed the appeal.[21]
Discussion
[18]High Court appeal, above n 3, at [27].
[19]At [29].
[20]At [31].
[21]At [32].
The appeals heard by the Court of Appeal on 16 and 17 April 2019 have resulted in updated sentencing guidelines for methamphetamine offending — Zhang v R. The guidelines in R v Fatu were modified. One of the changes made was to reduce the sentence starting point in bands one to four (as well as adding an additional band five).[22] Access to the lower sentence starting points may be expected only by those whose role is found to be lesser in degree and where quantities are at the lower end of the relevant range. The Court did not, however, exclude the possibility of a case involving minimal participation which might fall below even those entry points.[23]
[22]Zhang v R, above n 5, at [123]–[125].
[23]At [123].
In the District Court, the Judge had noted that, under R v Fatu, ordinarily the amount of methamphetamine that Ms Wikohika had supplied (536.25 grams) would have resulted in a starting point of about 10 years’ imprisonment. The old band four applied to amounts of more than 500 grams for which starting points of ten years to life imprisonment were available. The band into which Ms Wikohika would now fall has an entry point of eight years’ imprisonment. That is, the new band four, which applies to amounts from 500 grams to two kilograms, has starting points from eight to 16 years’ imprisonment. That is, the lowest available starting point is now two years less than previously. The starting point of six years’ imprisonment adopted by the Judge fell below even the revised entry point. This obviously reflected his view of Ms Wikohika’s minimal role in her brother’s drug empire. In the circumstances as outlined above, we will not question the Judge’s assessment of the appropriate starting point.
Apart from updating the guidelines on starting points for methamphetamine offending, Zhang v R made it clear that personal mitigating circumstances can be taken into account in all instances of drug offending, as in any other offending. In the present case, the Judge gave appropriate discounts for Ms Wikohika’s previous good character, impact of imprisonment on her four children and the personal tragic circumstances that Ms Wikohika had encountered in recent times.
What the Judge did not know about was Ms Wikohika’s subsequent diagnosis and treatment for an aggressive form of breast cancer. An offender’s medical condition or ill‑health may justify a reduction in the length of a prison sentence, where information about that ill-health is available at sentencing. However, the courts have adopted a cautious approach to this factor so that it does not become a licence to offend and avoid accountability.[24] This Court has further indicated that where ill-health was not apparent at sentence but evidence comes to light subsequently, or an intervening event occurs (such as a serious injury while in prison), the sentence is unlikely to be reduced on appeal as there will be an absence of error at the time of sentencing that warrants the appellate court interfering with the sentence under s 250(2) of the Criminal Procedure Act 2011.[25] Where an offender’s health deteriorates seriously after sentence, the appropriate response is likely to be administrative in terms of ss 25(1) and 41(1)(b) of the Parole Act 2002 or s 62(2)(a)(ii) of the Corrections Act 2004.[26]
[24]See R v Verschaffelt [2002] 3 NZLR 772 (CA) at [24] citing R v Smith (1987) 44 SASR 587 (SC) at 589; and Luce v R [2007] NZCA 476 at [22].
[25]Poi v R [2015] NZCA 300 at [11]; and see further Adams on Criminal Law — Sentencing (online looseleaf ed, Thomson Reuters) at [SA8.13A]. We note s 250(2) of the Criminal Procedure Act 2011 relates to first appeals against sentence. However, an equivalent provision exists for second appeals against sentence — s 256(2).
[26]At [13] citing Pomana v R [2007] NZCA 138 at [22]; Hart v R CA199/93, 17 November 1993; Tuoro v R CA44/94, 17 March 1994; and de Bruin v R [2007] NZCA 600 at [56].
.
We note that this case is somewhat different from the previous cases in which this Court has considered health issues post sentencing. In those cases, the appellants were already in custody serving the sentence imposed upon them. However, Ms Wikohika has been diagnosed and is undergoing treatment in the community for an aggressive form of cancer while on bail, pending appeal against sentence. We are not convinced that this alone would be sufficient justification for not applying the usual rule. However, we note that there are other factors that take this case out of the ordinary.
In particular, Ms Wikohika has been on bail without incident since her arrest in September 2017: a period of nearly three years. During that time, she has been a contributing member of the community, caring for her four children and working in a stable job (until ill-health rendered her unable to do so). The pre‑sentence report records that Ms Wikohika took full responsibility for her offending and expressed genuine remorse and a sense of shame for her actions. She was also assessed as posing a low likelihood of reoffending. We consider this to still be an accurate assessment.
We have regard to the case of Wirihana v R.[27] Mr Wirihana was the man to whom Ms Wikohika delivered approximately 340 grams of methamphetamine for safe keeping on her brother’s instructions on 18 August 2017.[28] He was charged with possession of methamphetamine for supply of both that amount and another 15.5 grams of methamphetamine, which he had sourced from Mr Thompson for supply to other people.
[27]Wirihana v R [2020] NZCA 151.
[28]We note that Mr Wirihana was sentenced on the basis that he had 336 grams in his possession, but Ms Wikohika was sentenced on the basis she delivered 340 grams to Mr Wirihana. We have not been made aware of the reason for this inconsistency but, in any case, consider it insignificant.
On 30 November 2018, he was sentenced to three years and seven months’ imprisonment by Judge Rea in the District Court.[29] The Judge adopted a starting point of five years’ imprisonment, which he discounted by six months for Mr Wirihana’s efforts to improve his situation following arrest assisted by support from the community and his family. The Judge then reduced Mr Wirihana’s sentence by 20 per cent for his guilty plea. Like Ms Wikohika, the Judge granted bail to Mr Wirihana pending appeal.
[29]R v Wirihana [2018] NZDC 24961.
On appeal, this Court noted that ordinarily a court hearing an appeal against sentence would not take into account events occurring or personal circumstances arising subsequent to sentencing, but Mr Wirihana’s case was different. It stated:[30]
It is almost three years since his offending. We understand he has spent the whole of that period on bail. His conduct during that time evidences not only prospects of, but actual, rehabilitation. He has taken steps to address the causes of his offending and he is willing to take more. He has a stable and supportive family life and is a valued and contributing member of society. He is drug free. The likelihood of him re-offending is assessed as low.
[30]Wirihana v R, above n 27, at [27].
The Court reminded itself that it was not required to sentence him to imprisonment if, having regard to the particular circumstances of the offence or the offender, it is of the opinion that he should not be so sentenced.[31] The Court was of the view that imprisoning Mr Wirihana now would have a disproportionately severe effect on him in terms of s 8(h) of the Sentencing Act 2002.[32] He would lose his employment and almost certainly the benefits of the progress he had made and the commitment he had shown. The Court considered that this result would be wholly inconsistent with the purpose of assisting in an offender’s rehabilitation and reintegration in terms of s 7(1)(h) of the Sentencing Act. The Court considered that Mr Wirihana’s manifest rehabilitative prospects and the positive steps he has already taken in light of the greater level of flexibility now accorded under Zhang v R, warranted a discount that reflected those prospects and the desirability of seeing them fully realised. The Court considered a discount of 50 per cent to reflect those factors could be justified.[33] In the unique circumstances of the case, the Court allowed the appeal. The sentence of three years and seven months’ imprisonment was quashed and in its place a sentence of 12 months’ home detention was imposed.[34]
[31]At [28].
[32]At [30].
[33]At [32].
[34]At [33].
We consider that Ms Wikohika’s circumstances, like Mr Wirihana’s circumstances, are unique and exceptional. Sentencing Ms Wikohika to prison now would be disproportionately severe.[35] Accordingly, we consider that it is appropriate to impose an additional discount for these exceptional circumstances. We think the appropriate discount here is lower than the discount given in Wirihana v R, given the discounts already granted to Ms Wikohika. We fix the discount at 17.5 per cent.
[35]Sentencing Act 2002, s 8(h).
As already noted, we are of the view that the Judge’s starting point and the other discounts granted were appropriate.
The cumulative discounts on the starting point of six years’ imprisonment therefore now amount to 67.5 per cent, the primary components of which are 25 per cent for the guilty plea, 17.5 per cent for Ms Wikohika’s exceptional circumstances since sentencing and 25 per cent for the other discounts applied by the sentencing Judge.[36] That leaves an end sentence of 23.5 months’ imprisonment. Home detention, therefore, becomes an available option and, in our view, is the least restrictive sentencing outcome that is appropriate in this case. In our view, it would now be unjust to send her to prison.
[36]We note that when Ms Wikohika was sentenced the guilty plea discount was calculated in the third step as 25 per cent of the sentence reached after all other discounts had been subtracted. However, since then this Court has clarified that the guilty plea discount should be calculated as a percentage of the adjusted starting point and subtracted in step two along with the incorporation of any aggravating or mitigating factors personal to the offender: Moses v R [2020] NZCA 296 at [46]. We calculate the revised sentence on that basis.
However, an address at which Ms Wikohika can reside on home detention needs to be provided and approved by the Department of Corrections. We accordingly direct a further pre-sentence report under s 26A of the Sentencing Act be prepared, which is to include the matters outlined in s 26A(2), including the suitability of the proposed home detention address.
Result
The application to admit fresh evidence on appeal is allowed.
The appeal is allowed.
The sentence imposed by the District Court of three years and four months’ imprisonment is quashed.
A sentence of 12 months’ home detention is substituted, to commence on 1 October 2020, conditional on the provision of an address found to be suitable by the Department of Corrections at which a sentence of home detention can be served. The standard conditions for a sentence of home detention set out in s 80C of the Sentencing Act will apply.
We 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.
Leave is reserved to the parties to come back to the Court in the event of any difficulties in providing an approved address.
Solicitors:
Crown Law Office, Wellington for Respondent
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