Wikohika v The Queen

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2018-441-20

[2019] NZHC 51

BETWEEN
HINE WIKOHIKA

Appellant

AND

THE QUEEN

Respondent

On the papers:

Counsel:

M J Phelps for Appellant C R Stuart for Respondent

Judgment:

1 February 2019

JUDGMENT OF CHURCHMAN J

Introduction

[1] By memorandum dated 31 January 2019, counsel for the appellant seeks an adjournment of the hearing of this appeal.

[2] The appellant had pleaded guilty to, and was sentenced in relation to the supply of 536.25 grams of methamphetamine.

[3] The circumstances surrounding her part in the offending were unusual and resulted in the Court imposing an end sentence of three years four months’ imprisonment. It appears that, imposing that sentence, the Court felt constrained to comply with the guidelines set out in R v Fatu.1

1 R v Fatu [2006] 2 NZLR 72 (CA).

WIKOHIKA v R [2019] NZHC 51 [1 February 2019]

[4] The Court of Appeal is scheduled to hear a number of appeals on 16 and 17 April 2019 which indicate that it may reconsider certain aspects of R v Fatu.

[5] In a minute issued by the Court of Appeal on 11 December 2018, it indicated that it intended addressing matters such as the weight it should be given to the role played by the offender, the relevance of the offender’s personal circumstances and the approach to be taken to the imposition of minimum periods of imprisonment.

[6] These matters are potentially relevant to this appeal given what is said to be the limited role of the appellant, the fact that she did not obtain any financial benefit from her actions and her personal circumstances.

[7] Accordingly, the appellant has asked this appeal be adjourned pending the outcome of the review of R v Fatu to be undertaken by the Court of Appeal in April.

Opposition

[8] The Crown opposes the request for an adjournment. The submissions filed in support of the notice of opposition refer to the fact that a number of guideline judgments have consistently applied to sentencings that take place after the issuing of the judgment.2

[9] The submissions suggest that there may be some merit in having this matter considered at the same time as the other appeals to be dealt with by the Court of Appeal in April.

Analysis

[10] On sentencing a defendant in relation to a charge such as is involved in the present appeal, the sentencing Court is obliged to apply the law, including any guideline judgments, that existed as at the date of the sentencing. If sentencing principles are subsequently altered, either by legislative change or as a result of the

2 Above n 1 at [44]; Nuku v R [2012] NZCA 584 at [44]; R v Taueki [2005] 3 NZLR 372 (CA) at [60]; and R v AM [2010] NZCA 114 at [125].

issue of a revised guideline judgment, then the alteration of those principles will not automatically be of retrospective effect.

[11] It is possible that some of the issues that arise in this case in relation to the extent of the involvement of the appellant in the offending and her personal circumstances may be matters upon which the Court of Appeal varies or extends the guideline decision of R v Fatu in April.

[12] Given the indication by the Court of Appeal in its minute of 11 December 2018 as to the issues that it wishes to address in the April hearing, it would be appropriate for the Court to consider this case along with the others that are to be the subject of that hearing.

[13] The proper way for that to occur is for the appeal set down in this Court to proceed, a decision on that appeal to be issued promptly and, depending on the outcome of the appeal, with the appellant then having the right to appeal to the Court of Appeal from that decision should she wish to do so and, if thought appropriate, to apply to join that appeal to the others scheduled to be heard in April.

Outcome

[14]Accordingly, the application to adjourn this appeal is declined.

Churchman J

Solicitors:
M J Phelps, Barrister, Hastings for Appellant
Crown Solicitor’s Office, Napier for Respondent

In Wikohika v The Queen, the appellant, Hine Wikohika, sought an adjournment of her appeal against a sentence imposed for the supply of methamphetamine. Wikohika had pleaded guilty and was sentenced to three years and four months' imprisonment. The case was before Churchman J in the High Court of New Zealand at Napier. The appellant's request for adjournment was based on the possibility that the Court of Appeal might reconsider aspects of the sentencing guidelines in R v Fatu during a hearing in April 2019. Wikohika argued that the issues surrounding her role in the offending, her lack of financial benefit, and her personal circumstances were potentially relevant to the reconsideration of the guidelines.

The legal issues before the court were whether the appeal should be adjourned pending the Court of Appeal's review of R v Fatu and, if not, whether the appellant should be permitted to join her appeal with those to be heard in April. The court had to consider the principle that sentencing is governed by the law as it stood on the date of sentencing and that changes in sentencing principles are not retroactive unless explicitly stated. The court also had to balance the appellant's request for an adjournment against the Crown's opposition, which pointed to the consistent application of guideline judgments post-sentencing.

The court decided against adjourning the appeal, reasoning that the proper course was for the appeal to proceed in the High Court. The decision on the appeal would then be issued promptly, allowing the appellant to appeal to the Court of Appeal if she deemed it appropriate and to apply to join her appeal with those scheduled for April, depending on the outcome. This approach ensured that the appeal was dealt with in a timely manner and that the appellant could still benefit from any changes in the guidelines if they occurred.

In conclusion, the High Court declined the appellant's application for an adjournment. The appellant was to proceed with her appeal, and the decision would be issued promptly. The appellant retained the right to appeal to the Court of Appeal and, if considered appropriate, to apply to join her appeal with those scheduled for April. This outcome ensured that the appellant's case was addressed in a timely and appropriate manner, respecting both the principles of sentencing and the potential for future guideline changes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

On the papers:
Counsel:	M J Phelps for Appellant C R Stuart for Respondent
Judgment:	1 February 2019