Wikohika v The Queen
[2019] NZHC 51
•1 February 2019
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