Wirihana v R - [2020] NZCA 151

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA737/2018
[2020] NZCA 151

BETWEEN	URIAH WHETU MONTY WIRIHANA Appellant
AND	THE QUEEN Respondent

Hearing:	24 February 2020
Court:	Goddard, Ellis and Brewer JJ
Counsel:	E R Fairbrother QC for Appellant M L Wong for Respondent
Judgment:	8 May 2020 at 9.30 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
B The sentence imposed in the District Court is quashed. We impose a sentence of 12 months’ home detention to be served at the address specified in the updated s 26 report dated 17 March 2020.

____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard and Ellis JJ)

Mr Wirihana pleaded guilty to two charges of possession of methamphetamine for the purpose of supply. The first charge involved the supply of 15.5 grams. The second involved 336 grams. On 30 November 2018 he was sentenced to three years and seven months’ imprisonment by Judge Rea in the District Court.[1]
[1]R v Wirihana [2018] NZDC 24961. He received a concurrent sentence of two years’ imprisonment on the first charge.
In the course of sentencing the Judge made it clear that he had considerable sympathy for the submission that a less severe sentence should be imposed, having regard to Mr Wirihana’s limited role in the supply operation and his personal circumstances, but felt constrained by the sentencing bands in the guideline judgment R v Fatu.[2]
[2]R v Fatu [2006] 2 NZLR 72 (CA).
Mr Wirihana appealed against his sentence.[3] The hearing of his appeal was deferred until after delivery of the decision of this Court in Zhang v R,[4] which was to be the new guideline judgment in relation to methamphetamine sentencing. Mr Shane Thompson, one of the appellants in Zhang, was the principal offender in the supply network in which Mr Wirihana was involved.
[3]Mr Wirihana also initially appealed against his conviction on the basis that the facts he accepted did not amount to possession for supply. However, the appeal against conviction was abandoned shortly before this appeal was heard.
[4]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
Zhang was delivered late last year. As well as revising the sentencing bands (which continue to be based on quantity) this Court confirmed that:
(a)an offender’s role is a significant factor in sentencing for methamphetamine offending;
(b)as with sentencing for all other offending, the Sentencing Act 2002 (the SA) requires the personal circumstances of the offender to be taken into account in sentencing for methamphetamine offending; and
(c)a mechanical approach that ignores these factors, or gives them minimal weight, is inconsistent with the statutory framework.
The principal question for us in this appeal is whether Mr Wirihana’s sentence should be recalibrated in light of Zhang and, if so, what that sentence should be. Ultimately, we have concluded that in the quite unusual circumstances of his case, a sentence of 12 months’ home detention is appropriate. We give our reasons…

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 Wirihana v R

Details

AGLC: Wirihana v R [2020] NZCA 151
Case: [2020] NZCA 151
Decision Date: 8 May 2020 at 9.30 am

CaseChat Overview and Summary

Uriah Whētu Monty Wirihana appealed against the sentence imposed on him by the District Court for two charges of possession of methamphetamine for the purpose of supply. The first charge involved the supply of 15.5 grams of methamphetamine and the second involved 336 grams of methamphetamine. The District Court Judge imposed a sentence of three years and seven months’ imprisonment, with a concurrent sentence of two years’ imprisonment on the first charge. Mr Wirihana argued that the sentence should be reconsidered in light of the Court of Appeal’s decision in Zhang v R, which provided new guidelines for sentencing methamphetamine offences. The Court of Appeal considered the relevance of Mr Wirihana’s limited role in the methamphetamine supply operation and his personal circumstances, as well as the sentencing purpose of assisting in the offender’s rehabilitation and reintegration. The Court of Appeal concluded that a sentence of 12 months’ home detention was appropriate, given Mr Wirihana’s conduct during the 15 months he had been on bail, his stable and supportive family life, and his low likelihood of reoffending. The Court of Appeal quashed the sentence imposed by the District Court and substituted a sentence of 12 months’ home detention to be served at the address specified in an updated pre-sentence report.

The Court of Appeal allowed the appeal and quashed the sentence imposed by the District Court, substituting a sentence of 12 months’ home detention to be served at the address specified in the updated pre-sentence report dated 17 March 2020. The Court of Appeal emphasised that one of the primary reasons for imposing this sentence was to enable Mr Wirihana to continue in his employment. The standard conditions for a sentence of home detention set out in s 80C of the Sentencing Act 2002 will apply. The Court of Appeal did not impose any special conditions because there was no significant risk of further offending by Mr Wirihana. The Court of Appeal expected the probation service to manage Mr Wirihana’s sentence and provide appropriate approvals under s 80C(3)(c)(ii) to ensure that he could continue in his employment.

Orders