WIKI v R [2022] NZHC 430

WIKI v R [2022] NZHC 430 [11 March 2022]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2021-488-58[2022] NZHC 430BETWEEN WIKITORIA MARIA WIKIAppellantAND THE QUEENRespondentHearing: 2 February 2022Counsel: C G Farquhar for AppellantC S Taylor for RespondentJudgment: 11 March 2022JUDGMENT OF BREWER JThis judgment was delivered by me on 11 March 2022 at 11 amRegistrar/Deputy RegistrarSolicitors/Counsel:Claire Farquhar (Auckland) for AppellantMarsden Woods Inskip Smith (Whangārei) for RespondentIntroduction[1] Ms Wiki and Mr Awarau attacked her ex-partner, Mr Matthews. The attackleft Mr Matthews with an approximately 8 cm cut on his right arm (which wentthrough to the bone), three fractured ribs, and contusions to his right hand and bothlegs.[2] Ms Wiki and Mr Awarau were charged with intentionally causingMr Matthews grievous bodily harm. This is an offence which has a maximum penaltyof 14 years' imprisonment.1 Ms Wiki was also charged with intentionally damagingMr Matthews's car, an offence with a maximum penalty of seven years'imprisonment.2[3] On the morning of trial, the charge of intentionally causing grievous bodilyharm was reduced to a charge of wounding with intent to injure.3 The maximumpenalty is seven years' imprisonment.[4] Ms Wiki then pleaded "guilty" to the reduced charge and to the charge ofintentional damage. Mr Awarau also pleaded guilty to the reduced charge.[5] On 12 November 2021, Judge DJ Orchard sentenced Ms Wiki to two years andthree months' imprisonment.4 Mr Awarau was sentenced to three years'imprisonment.[6] Ms Wiki now appeals her sentence. She contends her sentence is manifestlyexcessive because Judge Orchard did not properly take into account her mitigatingpersonal circumstances. Ms Wiki's submission is that her sentence should have beenless than two years and that it should have been commuted to a sentence of homedetention.1 Crimes Act 1961, s 188(1).2 Section 269(2)(a).3 Section 188(2).4 R v Awarau [2021] NZDC 22319.[7] My task is to assess whether there has been an error in Ms Wiki's sentencingsuch that a different sentence should be imposed. A manifestly excessive sentencewould be such an error.Disputed facts hearing[8] There was a disputed facts hearing subsequent to Ms Wiki and Mr Awarauentering their pleas of guilty. That was because Mr Awarau denied the Crown'sassertion that he caused the wound to Mr Matthews's arm by striking him with an axe.Judge Orchard concluded that the Crown had not proved that Mr Awarau caused thewound.5[9] Ms Farquhar, for Ms Wiki, submits that I should apply to this appeal only thefacts set out in the summary of facts operative when Ms Wiki pleaded guilty. I acceptMs Farquhar's submission. The summary of facts said:The defendant WIKI has approached and given the axe to the defendantAWARAU. The defendant AWARAU has struck the complainant on the rightarm with the axe, causing a cut right through to the bone, that was about 8 cmslong. No ligaments or tendons were damaged.[10] Judge Orchard concluded that the Crown had not proved that allegation beyondreasonable doubt in the disputed facts hearing and so she sentenced on the basis thatit had not been proved who struck the blow which wounded Mr Matthews. In myview, that was not a course open to the Judge in sentencing Ms Wiki.[11] Ms Wiki was not a party to the disputed facts hearing. She was not a witnessat the hearing. Her position is analogous to a party who pleads guilty to a summaryof facts and subsequently the trial of a co-defendant creates a different evidencepicture. The evidence at the trial cannot undermine the summary of facts.6[12] Ms Wiki does not challenge the starting point adopted by the Judge. As I willcome to, the Judge said the same starting point (three years and six months'imprisonment) should apply to both defendants. I find that was appropriate. On thesummary of facts, as part of a violent confrontation with a man already down on the5 R v Wiki [2021] NZDC 17841.6 R (CA628/2018) v R [2019] NZCA 135 at [33].ground, Ms Wiki handed the axe to Mr Awarau who used it to cut the victim's arm tothe bone, and then Ms Wiki gained possession of the axe and struck the victim withthe blunt end. Ms Wiki's culpability is at least equal to Mr Awarau's.[13] I see no prejudice to Ms Wiki from the Judge's decision to adopt the samestarting point for her and for Mr Awarau.Factual background[14] Ms Wiki and Mr Matthews spent some years in a domestic relationship andhad three children together. The relationship broke down some four years before theincident. At the time of the incident, Ms Wiki and Mr Awarau were in a domesticrelationship.[15] On 2 January 2019, Ms Wiki visited Mr Matthews. An argument developedbetween them and Ms Wiki left.[16] Ms Wiki returned to the address approximately 15 minutes later, accompaniedby Mr Awarau.[17] Ms Wiki got out of the vehicle in which she travelled to the address holding anaxe. This was described as a splitter axe with a small blade and (about) a three feetlong handle.[18] Ms Wiki went straight to Mr Matthews's car. She used the axe to smash everywindow and she dented several panels. This gave rise to the charge of causingintentional damage.[19] As a result of Ms Wiki's actions, Mr Matthews armed himself with a metal barwhich was about one foot long and about two inches thick. At this time, Mr Awarauwas getting out of the vehicle. He and Mr Matthews approached each other and ascuffle broke out.[20] Mr Matthews dropped the bar and was knocked to the ground. He went into afoetal position and Mr Awarau "stomped on his head, chest and stomach a number oftimes and struck [Mr Matthews] on the head with the bar".[21] Ms Wiki approached Mr Awarau carrying the axe and one of them used the axeto strike Mr Matthews on the right arm causing the cut which went through to thebone. As I have said, the Judge should have sentenced Ms Wiki on the summary offacts to which she pleaded and Mr Awarau on her finding at the disputed facts hearing.[22] Subsequently, Ms Wiki used the blunt end of the axe to strike Mr Matthews'slower leg causing a bruise.[23] Ms Wiki and Mr Awarau then left the address.The sentencing[24] Judge Orchard adopted a starting point of three years and six months'imprisonment for both Ms Wiki and Mr Awarau on the charge of wounding with intentto injure. The Judge used that starting point in her assessment of Mr Awarau's endsentence.[25] However, when the Judge turned to Ms Wiki's case she made an error:7Ms Wiki, as I have already said to you, the starting point for you is three years'imprisonment.[26] The Judge went on to assess Ms Wiki's sentence using a three year startingpoint.[27] Ms Farquhar made her submissions on the basis that Judge Orchard adopted astarting point of three years. However, as I said at the hearing, I find that the Judgeadopted a starting point of three years and six months and misspoke when she toldMs Wiki that "as I have already said to you" the starting point was three years. I amsatisfied also that the Judge's analysis which led her to adopt three years and sixmonths as the starting point was appropriate to the charge. Accordingly, when I assess7 At [25].the end sentence I will do so on the basis that three years and six months was anappropriate starting point.[28] Judge Orchard discounted Ms Wiki's sentence by 10 per cent to take accountof personal factors set out in a cultural report provided pursuant to s 27 of theSentencing Act 2002. The Judge placed particular emphasis on the domestic abuseinflicted on Ms Wiki by Mr Matthews during the period in which he was her domesticpartner. The discount recognised also the post-incident efforts made by Ms Wiki torehabilitate.[29] Judge Orchard gave a further discount of five per cent for the time spent byMs Wiki on restrictive bail conditions.[30] The end sentence of two years and three months' imprisonment means that theJudge also gave a 10 per cent discount for the pleas of guilty, the same discount shegave Mr Awarau.[31] The Judge did not address how the charge of intentionally damagingMr Matthews's car should affect the starting point. Indeed, the Judge did not addressit at all. At the end of the sentencing the Judge said simply:8 and you are sentenced to a concurrent sentence of six months in relation tothe charge of intentional damage.[32] When I assess whether the end sentence was manifestly excessive, I will takeinto account that the Judge imposed no additional penalty for the intentional damagecharge.The appealMs Wiki's position[33] The focus of the appeal is on the discounts awarded by Judge Orchard.8 At [29].[34] First, Ms Farquhar submits that the discount of 10 per cent for Ms Wiki'spersonal factors was not enough. Ms Farquhar submits that Ms Wiki undertookextensive rehabilitation efforts such that the writer of the PAC report said that littlecould be achieved from further intervention such as supervision. Ms Farquhar sets outthe rehabilitative efforts as follows:(a) Weekly sessions at a stopping violence programme at Te WhareRuruhau o Meri, in Kaitaia.(b) Family Restoration Programme at Te Whakaora Tangata, which[included] modules for stopping violence, communication andemotional stability. She also attended a one-on-one counsellingsession.(c) Salvation Army Alcohol and Drug intervention over a period of sixweeks. The letter confirming her participation notes her deep remorsefor the offending.(d) Weekly therapy at the Miriam Centre Abuse and Trauma Centre, toaddress her PTSD arising from domestic violence abuse by the victim.(e) Voluntary work for the St Johns Ambulance Service who runweekend markets in Pukenui. The appellant instructs that she wouldhelp out when needed at the request of her mother, approximatelyonce a month.[35] Ms Farquhar told me that Ms Wiki pursued her rehabilitation efforts whileresiding at the He Korowai Trust Kaitaia over a nine-month period. I saw a letter ofsupport from the Trust noting Ms Wiki's compliant behaviour, pleasant nature andproactive and self-directed efforts at engaging in support in the community. Anupdated letter provided to me confirms the Trust's ongoing support for Ms Wiki.[36] Ms Farquhar submits that the s 27 report should have attracted a greaterdiscount. Ms Farquhar points to parts of the report which include Ms Wiki'sdescriptions of the severe domestic violence she suffered at the hands of Mr Matthewsfor a number of years.[37] Remorse is a factor which Ms Farquhar urges the Court to recognise:The appellant felt a deep sense of regret for the offending, which separatedher from her children and affected her mother. She attended the victim'stangihanga and was still grieving after his death. Ms Henare considered thatMs Wiki is whakamā of her offending and the impact it has had on others,indicating her genuine remorse.[38] Ms Farquhar submits that the five per cent discount given for time spentsubject to restrictive bail conditions was insufficient. Ms Wiki was on bail from5 January 2019 until her sentencing on 12 November 2021, a period of just over twoyears and 10 months. Her bail conditions included a night-time curfew from 7.00 pmto 7.00 am, which was relaxed to 10.00 pm to 6.00 am in 2021.[39] In sum, Ms Farquhar submits that a discount of at least 20 per cent should havebeen awarded for Ms Wiki's rehabilitative efforts, the nexus between the domesticabuse, resulting post-traumatic stress disorder, and the offending. Ms Wiki's genuineremorse should be a factor in awarding a discount of this magnitude.[40] Ms Farquhar submits that the Judge should have awarded a discount of 20 to25 per cent for Ms Wiki's guilty pleas. Ms Farquhar submits that the situation whichled Ms Wiki to enter her pleas was so different from the jeopardy she faced when shewas charged that she should be treated, essentially, as having entered pleas at the firstavailable opportunity. Ms Farquhar points to the following matters:(a) Mr Matthews died of unrelated causes approximately six weeks beforethe trial. Judge Orchard later ruled that Mr Matthews's witnessstatement was admissible as evidence in the trial.(b) The charge of intentionally causing grievous bodily harm was reducedto wounding with intent to injure.(c) An amended summary of facts was agreed with the Crown.[41] As to the discount for time spent on restrictive bail, Ms Farquhar submits thatan appropriate discount is around five months (about 12 per cent).[42] In Ms Farquhar's submission, the Judge should have sentenced Ms Wiki toapproximately 17 months' imprisonment and commuted it to a sentence of homedetention. Ms Farquhar points out that Ms Wiki has a negligible criminal history.The Crown's position[43] On the submission that a discount should be given for Ms Wiki's rehabilitativeefforts, the Crown acknowledges that she attended programmes for approximately10 months and that the COVID-19 Level 4 lockdown interfered with further attemptsto engage with more rehabilitative programmes. However, when viewed against theseriousness of the charges, a discount greater than 10 per cent is unwarranted.[44] Mr Taylor, for the Crown, does not accept Ms Farquhar's submission that thes 27 report provides a nexus between the offending and the domestic abuse sufferedby Ms Wiki at the hands of Mr Matthews. First, he points out that Ms Wiki'srelationship with Mr Matthews ended approximately four years before the incident.Mr Taylor submits it is clear that after an argument between Ms Wiki andMr Matthews, Ms Wiki left the address enraged. She returned shortly afterwards withMr Awarau having armed herself with an axe. This shows premeditation as to whathappened next.[45] Mr Taylor submits that the s 27 cultural report shows that Ms Wiki had a goodupbringing and was not culturally disconnected. Accordingly, the 10 per cent discountfor all personal factors was appropriate.[46] As to the guilty plea discount, Mr Taylor points out that the charge ofintentional damage remained unchanged. No discount for entering a plea of guilty onthe day of trial to that charge is available.[47] Mr Taylor submits that the reduction in the charge, without significantamendment to the summary of facts, conferred a benefit on Ms Wiki which should notbe further enhanced by a credit for pleading guilty to it.[48] Mr Taylor submits:19. In the context of this matter, resolution occurred on the morning oftrial. In fairness to the appellant additional material from a witnesswas provided to the Crown on the morning of trial (this was disclosedto Defence Counsel in jobsheet form). With this information theCrown was able to identify the precise roles of the offenders in theconcerted assault. The Crown particularised the charge to identify theappellant's role in the offending as 'giving the co-offender Mr Awarauthe axe'. Following the Crown's identification, the appellant enteredguilty pleas to the charges. However, it is noted that the availability ofa disputed fact hearing was always an option to the appellant whenprogressing to trial.[49] In short, Mr Taylor submits a discount in the region of 10 to 15 per cent wasavailable to Judge Orchard.[50] As for whether there should be greater credit for the time Ms Wiki spent onrestrictive bail conditions, Mr Taylor cites Filoa v R as holding that whether anoffender breached bail is a factor that the court could take into account in assessing adiscount.9 In this case there was a breach of bail in October 2019 relating to a disputebetween Ms Wiki and her sister. Mr Taylor acknowledges there was no opposition toMs Wiki being readmitted to bail. However, he submits a discount of five per cent —effectively a reduction of two months — is sufficient.Discussion[51] The first stage of the sentencing process is to determine a starting point byevaluating the defendant's culpability for the offending itself. As I have said, I acceptthat the Judge's intended starting point of three years and six months' imprisonmenton the charge of wounding with intent to injure was within the available range.However, the Judge should have also considered how the charge of intentionallydamaging Mr Matthews's car affected the starting point.[52] Damaging the car was a separate criminal act. Ms Wiki brought the axe toMr Matthews's property. As soon as she and Mr Awarau arrived she went straight tothe car armed with the axe. She used it to cause extensive damage: she smashed everywindow and she dented several panels. This offending required an uplift to the startingpoint. Considering totality, I would increase the starting point by six months to fouryears' imprisonment.9 Filoa v R [2010] NZCA 588.[53] The second stage of the sentencing process is to evaluate whether the startingpoint should be altered, up or down, taking into account the defendant's personalcharacteristics.[54] I start with the fact that Ms Wiki's criminal record was not relevant to thesentencing. There were no previous convictions for violence. Her minor dishonestyconvictions from 2019 and 2020 simply mean that Ms Wiki could not claim credit forgood character.[55] A defendant can be given credit for post-offending efforts to rehabilitate. Suchefforts show that the defendant is accepting responsibility for their actions and hastaken concrete steps to address the causes of their offending. This reduces their riskof re-offending.[56] I accept Ms Farquhar's submission that Ms Wiki's rehabilitation efforts wereextensive and deserve recognition. She has no previous convictions for violence andshe has now addressed the causes of her offending. I would allow a discount of15 per cent.[57] A defendant's personal background can also warrant a discount on sentence ifthere is a nexus between the background and the offending such as to reduce thedefendant's moral culpability.[58] I have read the report on Ms Wiki prepared pursuant to s 27 of the SentencingAct. Ms Wiki was a 38 year old mother of four children at the time of the incident.Her parents separated when she was five years old. Ms Wiki was close to both parents,she grew up in relative affluence, and she was closely connected with her Māoriculture.[59] As a teenager, Ms Wiki began to drift. She did not like school and was afrequent truant. She left school at age 15 and worked in a number of jobs beforebecoming a fulltime mother at the age of 20.[60] Ms Wiki was in a relationship with Mr Matthews off and on for 15 years.Ms Wiki reports that Mr Matthews was physically and mentally abusive. The twonever actually lived together, although over the course of their relationship they hadthree children.[61] Ms Wiki ended the relationship with Mr Matthews in 2014, formed a newrelationship with Mr Awarau, and had a son with him.[62] I agree with Judge Orchard that Ms Wiki does not have the sort of deprivedbackground that is so often causally linked to criminal offending. What happened inthis case is that Ms Wiki argued with Mr Matthews, became enraged, went away andcame back with a weapon and Mr Awarau. I accept that Ms Wiki's history of domesticabuse at Mr Matthews's hands was an operative factor in her offending.[63] I would allow a five per cent discount for that factor.[64] I would not allow a discount for remorse. Ms Wiki's remorse is over herseparation from her children as a result of her offending. There is no tangibledemonstration of remorse for the effects of the offending on Mr Matthews. The factshe went to his tangihanga does not justify a discount.[65] Ms Wiki was entitled to a discount for restrictive bail conditions. The bailperiod was two years and 10 months. But the conditions were not particularlyrestrictive. The most restrictive condition was a night-time curfew from 7.00 pm to7.00 am, which was relaxed to 10.00 pm to 6.00 am in 2021. Judge Orchard alloweda discount of five per cent. That was within her discretion.[66] Finally, Ms Wiki is entitled to a discount for her pleas of guilty. Judge Orchardgave a discount of 10 per cent, which was what the Crown submitted was appropriate.Ms Farquhar's submission is that because of changes to the evidence and the chargethe Judge was obliged to give a discount of at least 20 per cent.[67] I accept there was a material change to the most serious charge. The issues forthe trial would have been the role Ms Wiki played in the injuring of Mr Matthews, andher intent at that time. Immediately prior to the trial the Crown received evidencewhich led it to accept that Ms Wiki handed the axe to Mr Awarau and that she did notherself cause the injury, although she later hit Mr Matthews with the blunt side of theaxe.[68] The charge of intentionally causing grievous bodily harm could havecontinued. But the Crown agreed to reduce it to wounding with intent to injure. AsJudge Orchard said, that was a material benefit to Ms Wiki. There was no change tothe charge of intentional damage.[69] The Supreme Court in Hessell v R10 held that the value attributed to a guiltyplea is assessed having regard to all the circumstances of the case. The Court ofAppeal in Hessell observed that:[44] If the charge is amended after a not guilty plea was entered, thereduction for a subsequent plea must be calculated with reference to the timethen taken by the offender to enter a guilty plea. For example, if, on themorning of a trial, one charge is substituted with another and the offenderimmediately pleaded guilty, he or she should receive the full benefit of a guiltyplea at the first reasonable opportunity.[70] But this is always subject to the value of the plea in the overall circumstancesof the case. For example, in Heta v R11 the offender was regarded as having pleadedguilty at the first reasonable opportunity (attracting a 25 per cent discount) when sheentered a guilty plea at trial immediately after the Crown amended the chargingdocument to reduce the number of welfare fraud charges and the quantum involved.By contrast, in Aupouri v R,12 Mr Aupouri was initially charged with rape; that wasdowngraded before trial to one charge of sexual exploitation by sexual connection,and at the end of the Crown case he pleaded guilty to a further downgraded charge ofsexual exploitation by an indecent act. Kós P observed that:[16] although Mr Aupouri pleaded guilty promptly once the reducedcharge was offered, that did not justify a full discount. Mr Aupouri took noearlier step to express a willingness to plead to a lesser offence on the basis oflesser offending. Had that action been taken, we consider that Mr Aupourimight have been entitled to a full 25 per cent discount. The belated acceptance10 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.11 Heta v R [2012] NZCA 267.12 Aupouri v R [2019] NZCA 216.of responsibility here means the maximum discount available is no more than15 per cent.[71] The fact that an appellant has already derived benefit from a charge reductionis a factor to be considered. The Supreme Court in Hessell said:[62] Guilty pleas are often the result of understandings reached by accusedand prosecutors on the charges faced and facts admitted. To give the samepercentage credit invariably for an early guilty plea in sentencing withoutregard to the circumstances can amount to giving a double benefit. Forexample, if the Crown agrees to accept a plea to manslaughter and drops acharge of murder in relation to offending, the acceptance of the plea can be aconcession in itself. If the full credit for an early plea is then also given, thesentence may not properly reflect the offending. The only way in which themany variable circumstances of individual cases which are relevant to a guiltyplea can properly be identified is by requiring their evaluation by thesentencing judge, and allowing that judge scope in light of the conclusion heor she reaches to give the most appropriate recognition of the guilty plea infixing the sentence.[72] In Mathias v New Zealand Police,13 for example, it was said that "the reductionof the burglary charge to receiving was of benefit to the defendant and can have abearing on whether a defendant should also get a full discount for a guilty plea".Similarly, the Court of Appeal in R v Tamatea14 observed that the appellant's discountfor guilty pleas "should have recognised the benefit she received from pleading to alesser charge and the strength of the Crown case". A discount of 20 per cent wasawarded.[73] But circumstances can go against refusing a full discount. In Ormsby v R,15Mr Ormsby was charged with wounding with intent to cause grievous bodily harm.Following discussions with defence counsel, the Crown advised that it would accepta guilty plea to a charge under s 188(2). Mr Ormsby entered a guilty plea to theamended indictment at the next call on the morning of the reserve trial date. TheCrown argued that, having reduced the charge, giving Mr Ormsby the full 25 per centguilty plea discount would amount "to giving a double benefit". However, the Courtof Appeal observed:[16] Assuming the correct charge here was one under s 188(2) (and oneassumes the Crown would not otherwise have substituted that charge), it is13 Mathias v New Zealand Police [2018] NZHC 1910 at [33].14 R v Tamatea [2012] NZCA 443 at [27].15 Ormsby v R [2014] NZCA 73.difficult to see any "double benefit" from allowing the full 25% discount forthe early plea of guilty to that charge.[74] Having regard to all the circumstances of the plea (including the strength ofthe Crown case), the Court in Ormsby allowed a discount of 20 per cent.[75] In my view, Ms Wiki's case is not akin to the example given by the SupremeCourt in Hessell of the Crown making a concession that it would accept a plea for alower charge. In that situation the concession itself is a benefit and awarding a fullguilty plea discount can result in a "double benefit" for the defendant. In Ms Wiki'scase, additional evidence came to light causing the Crown to substitute a moreappropriate charge in place of the original one (along the lines of the observation ofthe Court in Ormsby). Nevertheless, the Crown's case was strong and could havewarranted a conviction on the more serious charge. And there was no change to thecharge of intentional damage. In these circumstances, I conclude that a discount of15 per cent is appropriate.Result[76] On my analysis, the appropriate sentence for Ms Wiki is calculated as follows:Starting point: 4 years' imprisonmentDiscounts: Rehabilitation efforts 15%Other personal circumstances 5%Restrictive bail 5%Pleas of guilty 15%Total 40%End sentence: 2 years 5 months' imprisonment[77] It follows that Judge Orchard's sentence of two years and three months'imprisonment was not manifestly excessive.[78] The appeal is dismissed.________________________________Brewer J