| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA737/2018 [2020] NZCA 151 |
| BETWEEN | URIAH WHETU MONTY WIRIHANA |
| AND | THE QUEEN |
| Hearing: | 24 February 2020 |
Court: | Goddard, Ellis and Brewer JJ |
Counsel: | E R Fairbrother QC for Appellant |
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…
Continue reading Wirihana v R
Sign in free to access the full text
- AGLC
- Wirihana v R [2020] NZCA 151
- Case
- [2020] NZCA 151
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.