Wikohika v The Queen - [2019] NZHC 79

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2018-441-000036

[2019] NZHC 79

HINE WIKOHIKA

v

THE QUEEN

Hearing: 5 February 2019

Counsel:

M J Phelps for Defendant C Stuart for Crown

Judgment:

5 February 2019

ORAL JUDGMENT OF CHURCHMAN J

Introduction

[1] On 9 November 2018, Ms Wikohika was sentenced by Judge Rea in the Napier District Court1 in respect of one representative charge of supplying methamphetamine.2 She was sentenced to three years and four months’ imprisonment.

[2]She appeals on the basis that:

(a)the starting point adopted by the sentencing Judge was too high;

1 R v Wikohika [2018] NZDC 24128.
2 Misuse of Drugs Act 1975, ss 6(1)(c) and (2)(a); maximum penalty life imprisonment.

WIKOHIKA v R [2019] NZHC 79 [5 February 2019]

(b)the Court’s decision in R v Fatu failed to provide appropriate guidance as to the sentencing Judge on how the culpability of secondary offenders is to be assessed in adopting an appropriate starting point;3

(c)having regard to the secondary role of the appellant, a sentence of home detention ought to have been imposed; and

(d)in all the circumstances of the case, the sentence imposed was manifestly excessive.

[3] The Crown opposes the appeal, submitting that the starting point adopted by the sentencing Judge was generous based on the guideline judgment of R v Fatu and that it is artificial to differentiate between the types of supply in this case. It is submitted that there is no identifiable error in the sentence and the appeal should be dismissed.

Factual background

[4] Ms Wikohika is a mother of four, the eldest of whom is 16 years of age. At the time of the offending, she was living with her partner and children, along with her brother and his partner, and she was working two jobs.

[5] Her brother is a methamphetamine dealer involved in dealing commercial quantities of methamphetamine. When he was out of town, as it appears he was reasonably frequently, Ms Wikohika, acting under his instructions, took on a role in supplying methamphetamine. This is alleged to have occurred between 1 November 2016 and 13 September 2017, although Mr Phelps makes a point with some force that the actual involvement appears to have been concentrated between 4 July 2017 and 18 August 2017. She is said to have received no financial benefit for her role in this supply. The total quantity of methamphetamine that Ms Wikohika had dealings with was 536.25 grams.

3 R v Fatu [2006] 2 NZLR 72.

[6] Ms Wikohika has no previous convictions, has been assessed as being low risk of reoffending, has taken full responsibility for her actions, and has expressed genuine remorse.

District Court decision

[7] The sentencing Judge, noting that Ms Wikohika’s counsel had referred him to a number of decisions in which the promptings of mercy had allowed for a departure from the tariff set in R v Fatu,4 stated that those cases involved similar quantities of…

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 [2019] NZHC 79
Case: [2019] NZHC 79
Decision Date: 5 February 2019

CaseChat Overview and Summary

The case of Wikohika v The Queen concerns an appeal against the sentence imposed by the Napier District Court on Ms Wikohika for supplying methamphetamine. The appeal was heard in the High Court of New Zealand at Napier, with the appeal being brought under section 250 of the Criminal Procedure Act 2011. Ms Wikohika's appeal was based on several grounds, including that the starting point adopted by the sentencing Judge was too high, that the Court's decision in R v Fatu did not provide appropriate guidance on assessing the culpability of secondary offenders, and that a sentence of home detention should have been imposed.

The central legal issue before the court was whether the sentence imposed by the Napier District Court was manifestly excessive. The court needed to determine if there was an identifiable error in the sentence and whether a different sentence should have been imposed. The Crown argued that the starting point adopted by the sentencing Judge was generous, and the appeal should be dismissed. Ms Wikohika's counsel argued that her role in the methamphetamine supply was capable of a more nuanced analysis, and the failure to undertake such an analysis led the Judge into error.

The High Court, after considering the submissions from both parties, concluded that the sentencing Judge was generous in identifying the starting point and made no error in doing so. The court acknowledged that the R v Fatu decision provides a guideline for sentencing individuals who deal in methamphetamine but noted that the courts have some flexibility in applying these guidelines. The High Court found that Ms Wikohika's involvement in the methamphetamine supply, although secondary, was significant, and the sentence imposed was within the available range. Therefore, the appeal was dismissed.

The court granted Ms Wikohika bail pending the disposal of this appeal, either as part of a larger appeal to be heard with Chen or as a standalone appeal. The court indicated that it may be a reasonable course of action for counsel to pursue an application to have this appeal considered by the Court of Appeal along with the other cases in the Chen matter.

Orders