Wihongi v Police [2015] NZHC 2321 (24 September 2015)

Last Updated: 13 October 2015

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2015-488-20 [2015] NZHC 2321

BETWEEN	DILLON SCOTT WIHONGI Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	23 September 2015
Appearances:	K G Johnson for Appellant J Scott for Respondent
Judgment:	24 September 2015

JUDGMENT OF LANG J [on appeal against sentence]

This judgment was delivered by me on 24 September 2015 at 2 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

_{Date...............}

WIHONGI v NEW ZEALAND POLICE [2015] NZHC 2321 [24 September 2015]

[1] Following a defended hearing in the District Court, Judge Duncan Harvey found Mr Wihongi guilty on a charge of assault with intent to injure.¹ On 3 July

_{2015, the Judge sentenced Mr Wihongi to 15 months imprisonment.}² _{Mr Wihongi}

appeals against sentence on the basis that the Judge adopted a starting point that was too high, failed to give Mr Wihongi credit for his previous good record and ought to have imposed a sentence of home detention.

Background

[2] Mr Wihongi and an associate were both initially charged with injuring two complainants with intent to injure them. Mr Wihongi was alleged to have injured one of the complainants, whilst his associate was alleged to have injured the other. The charges were laid as a result of an incident that occurred at a bar in Whangarei on 15 August 2014. Mr Wihongi and his associate were drinking at the bar when bar staff became suspicious they were consuming alcohol that had not been purchased on the premises. An altercation then occurred, in which Mr Wihongi’s associate struck one of the bar staff. Another staff member attempted to intervene, and Mr Wihongi allegedly struck this person several blows that rendered him unconscious.

[3] The Judge found that Mr Wihongi struck this complainant with his fist on three occasions. The first blow was struck when the complainant was standing up. The remaining two blows were inflicted after the complainant had fallen to the ground.

[4] The Judge observed, however, that one of the eyewitnesses had observed two people attacking this complainant. For that reason he was unable to determine whether it was Mr Wihongi or the other assailant who had caused the injuries suffered by the complainant. These included a broken jaw and two dislodged teeth. For that reason the Judge amended the charge from injuring with intent to injure to

_{assault with intent to injure.}

¹ _{New Zealand Police v Wihongi [2015] NZDC 7878.}

² New Zealand Police v Wihongi [2015] NZDC 12673.

The starting point

[5] Mr Johnson bases his challenge to the starting point of 15 months imprisonment on the Judge’s observation during his sentencing remarks that Mr Wihongi had knocked the complainant out. The Judge made this observation during the following passage:³

[5] For absolutely no reason whatsoever, Mr Lomas, you chose to hit Mr Curran. When he went down, you stomped him. Not surprisingly, Mr Inder became aware very quickly that there was a problem and he also came out and you, Mr Wihongi, you met him. You hit him once and when he went to the ground, you then hit him a further three occasions. You knocked him out. That, in very general terms, is what occurred. This was a classic example of drunken random violence without any provocation whatsoever.

[6] In this passage the Judge observes that Mr Wihongi struck the complainant on four occasions. That is obviously different to the finding he made in his earlier decision following the defended hearing, but nothing turns on it for present purposes. Mr Johnson submits, however, that the Judge was wrong to sentence Mr Wihongi on the basis that he had knocked the complainant out. He points out that the Judge never made such a finding in his earlier decision, and the involvement of a second assailant meant that such a finding was not open on the evidence.

[7] Mr Johnson submits that this was a material error, because it is likely to have influenced the Judge in adopting a starting point of 15 months imprisonment. He contends that this was too high having regard to the established facts, and that a starting point of nine to twelve months imprisonment would have been appropriate.

[8] I agree that the Judge’s earlier decision precluded him from finding that the blows struck by Mr Wihongi caused the complainant to be rendered unconscious. Nevertheless, Mr Wihongi struck the complainant in the head on three separate occasions, two of which occurred when the complainant was on the ground. Even if the blows struck by the other assailant caused the complainant’s injuries, Mr Wihongi was party to an unprovoked group attack involving concerted violence to a

_{vulnerable part of the complainant’s body. In those circumstances I do not consider}

³ New Zealand Police v Wihongi, above n 2.

that a starting point of 15 months imprisonment was outside the available range. This ground of appeal fails as a result.

Failure to give credit for previous good character

[9] This argument overlooks the fact that on 24 June 2013 Mr Wihongi was convicted and ordered to pay reparation of $1,000 on a charge of carelessly using a firearm to cause bodily injury. The Judge did not apply an uplift to reflect this conviction, but it meant that Mr Wihongi could not lay claim to an unblemished record. For that reason the Judge was not obliged to apply a discount to reflect Mr Wihongi’s previous good character.

Home detention

[10] A decision to impose a sentence of home detention rather than imprisonment is the exercise of a judicial discretion. That discretion must be exercised within the general context of the Sentencing Act 2002, and in a manner consistent with the purposes and principles of the Act.⁴

[11] The Judge declined to impose a sentence of home detention in the following passage of his sentencing remarks:⁵

[12] I turn now to the necessity for the Court to start imposing sentences that are truly deterrent. In my view, a sentence of home detention in this particular circumstance, given the randomness and the unprovoked nature of this violence, means that a sentence of home detention would simply send the wrong message. I have to make it very clear that you cannot behave in this way.

[12] This passage makes it clear that the Judge declined to impose a sentence of home detention because it would not sufficiently meet the recognised sentencing purpose of deterrence.⁶ Furthermore, such a sentence might send the wrong message to others tempted to engage in similar conduct in the future. The Judge therefore

_{exercised his discretion having regard to the purposes and principles prescribed by}

⁴ _{R v Hill [2008] NZCA 41; (2009) 23 CRNZ 744 (CA) at [34]; R v Stacey [2008] NZCA 465 at [19].}

⁵ _{New Zealand Police v Wihongi, above n 2.}

⁶ Sentencing Act 2002, s 7(1)(f).

the Act. There is therefore no basis upon which this Court could interfere with the

exercise of the Judge’s discretion.

Result

_{[13] The appeal against sentence is dismissed.}

Lang J

Solicitors:

Crown Solicitor, Whangarei