Korewha v R [2018] NZHC 1896 (30 July 2018)

Last Updated: 13 August 2018

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2018-488-000021 [2018] NZHC 1896

BETWEEN	WILSON KOREWHA Appellant
AND	THE QUEEN Respondent

Hearing:	20 July 2018
Appearances:	G Skinner for the Appellant J P R Scott for the Respondent
Judgment:	30 July 2018

JUDGMENT OF HINTON J

This judgment was delivered by me on 30 July 2018 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules

.............................................................................. Registrar/Deputy Registrar

Solicitors:

Thode Utting & Co, Auckland

Marsden Woods Inskip & Smith, Whangarei

WILSON KOREWHA v R [2018] NZHC 1896 [30 July 2018]

[1] Mr Korewha appeals the decision of Judge D J Orchard, on 7 March 2018, in the District Court at Whangarei, sentencing him to 18 month’s imprisonment for assault with a weapon under s 202C of the Crimes Act 1961, and declining to grant leave under s 80I of the Sentencing Act 2002 (the Act) to apply for home detention, should an address become available.¹ In a letter to the Court the defendant says he now believes he has such an address in Whangarei.

[2] Counsel for the appellant does not take issue with the length of the sentence. The only issue from their perspective is with regard to the refusal to grant leave to seek home detention.

Facts

[3] On 30 May 2015, following an argument between his brother and the victim, Hemi Wylie, that developed into a physical altercation, Mr Korewha struck Mr Wylie with a beer bottle, smashing it over his head.²

[4] Mr Wylie suffered serious injuries as a result of the altercation, including a left front subdural haematoma and two broken front teeth. He suffered a traumatic brain injury for which he spent three weeks in the Acquired Brain Injury Rehabilitation Centre. Since the attack he has suffered from seizures, problems with his hearing, vision and balance issues. I adduce from his victim impact statement that it has been a long and arduous road to recovery, which is not yet over.

The decision in the District Court

[5] Section 80I of the Act applies if the Court sentences a defendant to a short- term sentence of imprisonment and, at the time of sentencing, the Court would have sentenced the defendant to home detention, but for a suitable residence.

[6] The Judge decided that she would not have sentenced the defendant to home detention even if there were a suitable residence. She said so, it would seem for the

¹ Police v Korewha [2018] NZDC 4352.

2. I note, as did the Judge, that there is a particularly long and unexplained length of time between the offending and the charges being laid.

primary reason that such a sentence would not come close to meeting the seriousness of the offending and achieving the purposes of sentencing which are relevant.³ To some extent I am reading that into the judgment, but I consider it a reasonable interpretation.

[7] It does seem that the Judge was also influenced by the fact that the only address that had been put forward at that time was over-crowded.⁴

[8] The Judge said she took into account that home detention was in itself a relatively serious consequence and does impose real restrictions on a defendant’s liberty.⁵

[9] The Judge explicitly stated that she thought she was entitled to take into account, in sentencing Mr Korewha, that a more serious charge could have been laid against him.⁶

Approach on appeal

[10] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

[11] In any other case, the Court must dismiss the appeal.⁷

[12] The Court of Appeal in Tutakangahau v R confirmed that the approach to an appeal under s 250(2) is the following:⁸

³ At [14] and [25].

⁴ At [14] and [26].

⁵ At [25].

⁶ At [18].

⁷ Criminal Procedure Act 2011, s 250(3).

⁸ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]- [27].

(a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle”.

(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[13] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles, instead the sentence must be manifestly excessive. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.⁹

Analysis

[14] I accept, as does Crown counsel, the appellant’s submission that the Judge was clearly in error when she stated that she considered she was entitled to take into account that more serious charges could have been laid when conducting the sentencing exercise. In sentencing, a Court may not take into account the fact that a more serious charge could have been laid. It cannot be discounted that this error had an operative effect on the Judge when she declined to grant leave to Mr Korewha to seek home detention. This is particularly the case when the primary basis for her refusing to grant leave seems to relate to her view of the seriousness of the offence.

[15] I still have to be satisfied that the sentence imposed was manifestly unjust.

[16] I think it axiomatic, at least in the present circumstances, that a sentence of imprisonment is manifestly unjust if the offender could have rightly been sentenced to home detention, or if leave to seek home detention is denied when such leave should have been granted.

⁹ Ripia v R [2011] NZCA 101 at [15].

[17] In order to allow the appeal and grant leave under s 80I of the Act, I have to conclude that I would have sentenced the defendant to home detention, but for a suitable residence.

[18] The Crown say that regardless of the error, the decision not to grant leave was correct, because this was serious offending. They say the Judge understated the start point, which could have been six to 12 months higher, and as a general rule for offending of this nature, absent personal mitigating factors, home detention should not be allowed. The case law they rely on in support of this position is Nuku v R.¹⁰ Though the Court of Appeal in that decision did not refer to section 202C of the Crimes Act 1961, the sentencing bands set down in that case were described as being appropriate for sentencing of assault offences that do not involve intent to cause grievous bodily harm. Since the offending involved serious injury to the victim, the use of a weapon and was directed at the victim’s head, a starting point of between two and three years’ imprisonment would have been appropriate. The starting point of two years is therefore within range.

[19] The Crown says, while the case of Goodlet v Police¹¹ relied on by the defence in support of their contention that leave to seek home detention should have been granted is similarly serious offending, it was a situation where the offender was only 17 at the time of the offending and it was her first offence. It can therefore be understood as the action of an impulsive youth. There was also evidence of a very supportive family, to sway the Judge towards granting home detention. Here the defendant was 26 at the time of the offending, has three prior assault charges, albeit the last in 2007, and it is clear his offending is alcohol-driven, something which he has taken no steps to address. Also, he showed little or no remorse until far too late, though admittedly he absented himself to Australia, apparently quite shortly after the offending occurred.

[20] Whether home detention should be granted is an evaluative exercise, focusing on whether the purposes and principles in ss 7 and 8 of the Act cannot be satisfied by any less restrictive sentence. In the present case I consider such factors as deterrence,

¹⁰ Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

¹¹ Goodlet v Police HC Dunedin CRI-2008-412-36, 18 November 2008.

denunciation and rehabilitation to be particularly cogent to the exercise of the discretion.

[21] I note the following factors as relevant to the exercise of the discretion as to whether to grant leave:

(a) The PAC report recommended a sentence of imprisonment with leave to apply for home detention, as no residence was available at the time of the report;

(b) Mr Korewha has a young family, all under eight years of age, with his partner of 10 years, for whom he is responsible;

(c) Between the time of the offending and being charged, he was employed in Australia, working in carpentry, concreting and forklift driving;

(d) He was completing a course at Polytech prior to his incarceration;

(e) He hopes to gain employment in the forestry industry;

(f) He did not offend nor breach any conditions while on bail;

(g) His earlier offending is historic, relating to the period of 2007 through 2008.

[22] I am very concerned that the apparent root cause, or one of the causes of violent outbursts by Mr Korewha, seems to be alcohol and that he has done little to address that since this serious offending occurred in 2015. (I note that the PAC report records that Mr Korewha claimed to have abstained from drinking for three months prior to the interview, but this could not be confirmed.) That is a failure to help himself, but to be fair, it seems that probation took no steps in that regard either, during his earlier sentence.
[23] I am also concerned that Mr Korewha seems to have taken action far too late to try to make amends with his victim, particularly considering the degree of harm caused to his victim.

[24] Nonetheless, I would have exercised my discretion to sentence Mr Korewha to home detention. It follows, as stated earlier, that it was manifestly unjust to not grant leave. I accept that there are not the same personal mitigating circumstances as in Goodlet, and therefore the case for home detention is not as strong. But the offending here is less serious than in Goodlet and although Mr Korewha is in his 20s rather than in his teens, and has offended before, that offending was a long time ago. As such, the purpose of deterrence does not resonate so strongly in the present circumstances, that a sentence of imprisonment would be necessary to send a message to Mr Korewha that repeat offending will not be tolerated and must result in incarceration. Also, I accept that there is much that is positive to be said about his work and course efforts. Mr Korewha will have a better chance to rehabilitate and reintegrate himself into his community if he is granted home detention, being therefore possibly permitted to engage in employment, seek advancement through his Polytech course, and attend a programme to help him deal with his issues with alcohol.

[25] I want to make it clear that home detention is not a soft option. It still involves a significant restriction on an offender’s liberty, and those sentenced to home detention regularly find compliance with its terms onerous. All the same, in the present circumstances, I consider that the interests of Mr Korewha and those of the community are better served by a sentence of home detention, as opposed to imprisonment.

Conclusion

[26] The appeal is allowed.


[27] Mr Korewha’s sentence of 18 months’ imprisonment is not disturbed, but he is granted leave to apply for a sentence of home detention.










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Hinton J