WIKOHIKA v R [2020] NZCA 595

WIKOHIKA v R [2020] NZCA 595 [26 November 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA52/2019[2020] NZCA 595BETWEEN HINE WIKOHIKAAppellantAND THE QUEENRespondentCourt: French, Woolford and Dunningham JJCounsel: M J Phelps for AppellantM H Cooke for RespondentJudgment:(On the papers)26 November 2020 at 9 amJUDGMENT OF THE COURTA The sentence of 12 months' home detention is confirmed and is to commenceon 30 November 2020 on the standard and special conditions set out at [7].B Bail is revoked from 30 November 2020.____________________________________________________________________REASONS OF THE COURT(Given by Woolford J)[1] In our judgment dated 18 August 2020, we quashed Ms Wikohika's sentenceof three years and four months' imprisonment and substituted a sentence of 12 months'home detention subject to the provision of a suitable address approved bythe Department of Corrections.1 We directed that a further pre-sentence report under1 Wikohika v R [2020] NZCA 352.s 26A of the Sentencing Act 2002 be prepared covering the suitability of the proposedhome detention address.2[2] In a report dated 24 September 2020, the Department of Corrections(the Department) expressed reservations about the proposed address. It recommendeda further remand on bail to allow information about new charges faced byMs Wikohika to be considered and the possible implementation of additional supportand oversight for her. In our minute dated 28 September 2020, we deferred the startdate of the home detention sentence to enable further information to be obtained aboutthe suitability of the address.[3] We received a supplementary memorandum from the Department ofCorrections dated 16 October 2020 in which the Department addressed questions asto the role the proposed address played in alleged offending by Ms Wikohika's partnerand the basis of the new charges against Ms Wikohika, including provision ofthe summary of facts. In our further minute dated 21 October 2020, we sought furthersubmissions from counsel regarding the implications of this information forthe sentence appeal.[4] We have now received supplementary submissions of counsel for Ms Wikohikadated 10 November 2020 and a memorandum of counsel for the Crown dated16 November 2020. We are most grateful for the valuable assistance provided bythe parties.[5] Counsel for Ms Wikohika maintains that the proposed address is suitable asan address at which she is able to serve a sentence of home detention, subject tothe standard conditions and special conditions set out in his submissions.[6] After consultation with the prosecutor and the officer-in-charge, the Crownconfirms that it is unaware at this stage of grounds justifying a different approach tothat set out in this Court's decision of 18 August 2020. The Crown does not thereforeoppose Ms Wikohika serving a sentence of home detention at the proposed address.2 At [39].[7] Accordingly, we confirm the sentence of 12 months' home detention which isto commence on Monday, 30 November 2020, on the standard conditions andthe following special conditions. Ms Wikohika is:(a) to reside at the address specified in the pre-sentence report dated24 September 2020 and not move to any new residential addresswithout the prior written approval of a probation officer;(b) to attend an assessment for Departmental programmes, if health allows,as directed by a probation officer and to attend and complete anycounselling, treatment or programme as recommended bythe assessment as directed by, and to the satisfaction of, the probationofficer;(c) not to possess, consume or use any alcohol or drugs not prescribed toher;(d) not to communicate in any way or associate with the persons named inthe proposed special condition No.4 in the pre-sentence report dated24 September 2020 without the prior written approval of a probationofficer;(e) not to communicate in any way or associate with the person named in[46(v)] of the supplementary submissions of counsel for the appellantdated 10 November 2020 without the prior written approval of aprobation officer; and(f) not to communicate in any way or associate with any known gangmember or associate, without the prior written approval of a probationofficer.[8] Ms Wikohika has been on bail throughout. Bail is revoked from 30 November2020.Solicitors:Crown Law Office, Wellington for Respondent