Wikohika v The Queen

[2020] NZCA 595

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA52/2019
 [2020] NZCA 595

BETWEEN	HINE WIKOHIKA Appellant
AND	THE QUEEN Respondent

Court:	French, Woolford and Dunningham JJ
Counsel:	M J Phelps for Appellant M H Cooke for Respondent
Judgment: (On the papers)	26 November 2020 at 9 am

JUDGMENT OF THE COURT

A The sentence of 12 months’ home detention is confirmed and is to commence on 30 November 2020 on the standard and special conditions set out at [7].

BBail is revoked from 30 November 2020.

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REASONS OF THE COURT

(Given by Woolford J)

1. In our judgment dated 18 August 2020, we quashed Ms Wikohika’s sentence of three years and four months’ imprisonment and substituted a sentence of 12 months’ home detention subject to the provision of a suitable address approved by the Department of Corrections.[1]  We directed 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.[2] 

   [1]Wikohika v R [2020] NZCA 352.

   [2]At [39].

2. In a report dated 24 September 2020, the Department of Corrections (the Department) expressed reservations about the proposed address.  It recommended a further remand on bail to allow information about new charges faced by Ms Wikohika to be considered and the possible implementation of additional support and oversight for her.  In our minute dated 28 September 2020, we deferred the start date of the home detention sentence to enable further information to be obtained about the suitability of the address. 

3. We received a supplementary memorandum from the Department of Corrections dated 16 October 2020 in which the Department addressed questions as to the role the proposed address played in alleged offending by Ms Wikohika’s partner and the basis of the new charges against Ms Wikohika, including provision of the summary of facts.  In our further minute dated 21 October 2020, we sought further submissions from counsel regarding the implications of this information for the sentence appeal. 

4. We have now received supplementary submissions of counsel for Ms Wikohika dated 10 November 2020 and a memorandum of counsel for the Crown dated 16 November 2020.  We are most grateful for the valuable assistance provided by the parties. 

5. Counsel for Ms Wikohika maintains that the proposed address is suitable as an address at which she is able to serve a sentence of home detention, subject to the standard conditions and special conditions set out in his submissions.

6. After consultation with the prosecutor and the officer-in-charge, the Crown confirms that it is unaware at this stage of grounds justifying a different approach to that set out in this Court’s decision of 18 August 2020.  The Crown does not therefore oppose Ms Wikohika serving a sentence of home detention at the proposed address.

7. Accordingly, we confirm the sentence of 12 months’ home detention which is to commence on Monday, 30 November 2020, on the standard conditions and the following special conditions.  Ms Wikohika is:

   (a)to reside at the address specified in the pre-sentence report dated 24 September 2020 and not move to any new residential address without the prior written approval of a probation officer;

   (b)to attend an assessment for Departmental programmes, if health allows, as directed by a probation officer and to attend and complete any counselling, treatment or programme as recommended by the assessment as directed by, and to the satisfaction of, the probation officer;

   (c)not to possess, consume or use any alcohol or drugs not prescribed to her;

   (d)not to communicate in any way or associate with the persons named in the proposed special condition No.4 in the pre-sentence report dated 24 September 2020 without the prior written approval of a probation officer;

   (e)not to communicate in any way or associate with the person named in [46(v)] of the supplementary submissions of counsel for the appellant dated 10 November 2020 without the prior written approval of a probation officer; and

   (f)not to communicate in any way or associate with any known gang member or associate, without the prior written approval of a probation officer.

8. Ms Wikohika has been on bail throughout.  Bail is revoked from 30 November 2020.

Solicitors:
Crown Law Office, Wellington for Respondent