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)

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].
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.
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.
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.
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.
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.
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…

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 The Queen

Details

AGLC: Wikohika v The Queen [2020] NZCA 595
Case: [2020] NZCA 595
Decision Date: 26 November 2020 at 9 am

CaseChat Overview and Summary

In the case of Wikohika v The Queen, the appellant, Hine Wikohika, challenged the sentence imposed by the High Court. The Court of Appeal, consisting of French, Woolford, and Dunningham JJ, reviewed the case on the papers and delivered their judgment on 26 November 2020. The central issue was the appropriateness of the sentence of 12 months' home detention, which had been substituted for an initial sentence of three years and four months' imprisonment. The appeal followed a previous decision by the Court of Appeal, which had quashed the original sentence and mandated a new sentence of home detention, contingent on the provision of a suitable address approved by the Department of Corrections.

The Court of Appeal considered whether the proposed address for the home detention was suitable, given the reservations expressed by the Department of Corrections and the additional information about new charges faced by Ms Wikohika. Both parties submitted supplementary legal arguments and evidence. The Crown did not oppose the sentence of home detention at the proposed address, provided certain conditions were met. The Court confirmed the sentence of 12 months' home detention, with specific standard and special conditions, including restrictions on residence, communication, and association with certain individuals and gangs.

The judgment confirmed the sentence of 12 months' home detention, set to commence on 30 November 2020, subject to the outlined conditions. Bail was revoked from the same date, reflecting the transition from the pre-sentence bail to the execution of the new sentence.

Orders