WALKER-OAARIKI v NEW ZEALAND POLICE [2020] NZHC 1087

WALKER-OAARIKI v NEW ZEALAND POLICE [2020] NZHC 1087 [22 May 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-50[2020] NZHC 1087BETWEEN ALAIN WALKER-OAARIKIAppellantAND NEW ZEALAND POLICERespondentHearing: 19 May 2020Appearances: D Taumihau for the AppellantC R Purdon for the RespondentJudgment: 22 May 2020JUDGMENT OF POWELL JThis judgment was delivered by me on 22 May 2020 at 3 pmRegistrar/Deputy RegistrarDate:[1] The appellant, Alain Walker-Oaariki has appealed against both conviction andsentence after pleading guilty to one charge of strangulation1 and one charge of assaulton a person in a family relationship.2[2] Mr Walker-Oaariki appeals against the strangulation conviction on the basisthat trial counsel erred in declining to advise him on the availability of a sentencingindication. Mr Walker Oaariki also appeals against the overall sentence imposed byJudge Jelas of two years and two months' imprisonment on the strangulation charge,and three months' imprisonment on the assault charge, to be served concurrently.3[3] Mr Walker-Oaariki seeks leave to appeal out of time. Leave is not opposed bythe Police. Given the limited delay and the fact that the delay has not resulted in anyprejudice to the Police, leave to appeal out of time is granted in respect of both appeals.Background to appeal[4] On 28 June 2019 Mr Walker-Oaariki and his partner were observed bymembers of the public physically attacking one another in the course of an argument.Mr Walker-Oaariki pulled the victim to the ground and stood over her, pulling her hair.At this point passers-by intervened and Mr Walker-Oaariki stepped away from thevictim. Not long afterwards Mr Walker-Oaariki again pulled the victim to the groundand was observed placing his hands around her throat and strangling her beforepunching her twice to the face. Members of the public again intervened and movedthe victim away from Mr Walker-Oaariki.The appeal against conviction[5] After initially pleading not guilty, on 7 November 2019 Mr Walker-Oaarikientered guilty pleas to both charges on the morning of his Judge-alone trial.Resolution discussion were commenced after it became clear that Mr Walker-Oaariki'strial was unlikely to be reached that day and would be adjourned until April 2020,1 Crimes Act 1961, s 189A. Maximum penalty seven years' imprisonment.2 Section 194A. Maximum penalty two years' imprisonment.3 Police v Walker-Oaariki [2019] NZDC 25028.noting that at that point Mr Walker-Oaariki had been remanded in custody since29 June 2019.[6] Although the prosecutor was not willing to withdraw the charge ofstrangulation the summary of facts was amended to confirm that initially the partieshad been attacking each other and that Mr Walker-Oaariki strangled the victim forfour-five seconds.[7] Mr Silich, counsel for Mr Walker-Oaariki in the District Court, explained thatthese amendments were intended to mitigate the seriousness of the offending atsentence, and that if Mr Walker-Oaariki proceeded to trial the evidence of the twoindependent witnesses could lead to the offending being found to be far more serious.On the amended facts Mr Silich advised Mr Walker-Oaariki that a sentence of between14 and 18 months' imprisonment could be expected. Mr Walker-Oaariki then signedthe amended summary of facts and guilty pleas were entered.[8] Mr Silich has confirmed he did not advise Mr Walker-Oaariki of theavailability of a sentencing indication as he was aware of Mr Walker-Oaariki's desireto spend as little time in custody as possible, and thus Mr Silich concluded anindication was an unattractive option for Mr Walker-Oaariki as it would have delayeddisposition of the matter.Legal principles[9] Only in exceptional circumstances will an appeal against conviction beentertained after a guilty plea.4 To qualify it must be shown that a miscarriage ofjustice will result if a conviction is not overturned.5 Where an appeal againstconviction following a guilty plea relies on trial counsel error, a miscarriage will arisewhere the following threshold is met:6(a) the advice given by trial counsel was erroneous;4 R v Le Page [2005] 2 NZLR 845 at [16].5 See R v Meerilees [2009] NZCA 59 at [33].6 Whichman v R [2018] NZCA 519 at [41] – [42].(b) there was a genuine prospect of acquittal at trial had the plea not beenentered; and(c) there is credible evidence that but for the erroneous advice, the guiltyplea would not have been entered.Mr Walker-Oaariki's position on conviction appeal[10] Mr Taumihau, on behalf of Mr Walker-Oaariki, submits that the first limb ofthe test is met as Mr Silich erred by failing to provide the option of a sentencingindication during the resolution discussions. Mr Taumihau submits Mr Silicherroneously advised Mr Walker-Oaariki that if he was to plead guilty he would receivea sentence shorter than the period that he would spend in custody awaiting trial. Bywithholding this option Mr Walker-Oaariki entered a plea on the basis of incompleteand ultimately incorrect advice.[11] Mr Taumihau submits that the second limb of the test is also met as Mr Walker-Oaariki had a viable defence to the charge of strangulation, that being that he did notstrangle the victim. Mr Taumihau notes in particular that Mr Walker-Oaariki hasconsistently denied strangling the complainant, the complainant has not alleged shewas strangled. In addition, one of the independent witnesses did not specifically referto strangulation but observed Mr Walker-Oaariki variously with his hand around thecomplainant's throat and pushing her backwards, and later holding her by the scruffof her collar.[12] Mr Taumihau submits that the third limb is also made out and as a result amiscarriage of justice has resulted. Mr Walker-Oaariki has filed an affidavit in supportof his appeal and this together with Mr Silich's affidavit indicate that the main factordriving the decision to enter guilty pleas was to avoid serving a longer time in custody.The failure to inform Mr Walker-Oaariki of the right to seek a sentencing indicationmeant he was unable to make an informed decision regarding next steps.Discussion - appeal against conviction[13] Mr Walker-Oaariki's appeal against conviction cannot succeed. It cannot besaid that trial counsel erred in declining to advise the appellant of the availability of asentencing indication as the Court of Appeal in T (CA662/2012) v R held that a failureto do so, on its own, will be insufficient to give rise to a miscarriage of justice.7[14] It must be noted that Mr Walker-Oaariki, unlike the appellant inT (CA662/2012) v R was not unfamiliar with the concept of a sentence indication buthas explained in his affidavit that he did not think it was available after case reviewand so he did not raise it with Mr Silich.[15] The present situation is otherwise not comparable to the situation in eitherT (CA662/2012) v R or Whichman v R relied on by Mr Taumihau. As Mr Purdon, forthe Police, has submitted the issue in T was not simply that a sentence indication hadnot been sought, but that a sentence indication would have clarified the informalapproach to sentencing that had been agreed between the defence and prosecution andwhich had an impact on the resolution of the case.8 Likewise, in Whichman thesentence indication had in fact been obtained mid trial and resulted in a significantmisconception on the part of Mr Whichman as to the consequences of accepting theindication.9 It is clear that in both these cases the issues identified went to the heart ofthe guilty plea whereas in the present case it is clear that Mr Walker-Oaariki wassimply disappointed in the ultimate sentencing outcome.[16] In this regard, although the ultimate sentence adopted by Judge Jelas waslonger than trial counsel advised Mr Walker-Oaariki, erroneous advice as to the lengthof a sentence is also insufficient to amount to a miscarriage of justice. As Mr Purdonnoted it is difficult to see how erroneous advice as to the length of sentence can berelevant to an appeal against conviction following the entry of guilty pleas, becausethe decision on sentence is for the Judge.10 Instead, it is well understood thatdefendants may plead guilty for a myriad of reasons, and a disappointing sentence7 T (CA662/2012) v R [2013] NZCA 550 at [36].8 At [37] – [41].9 Whichman v R [2018] NZCA 519 at [42].10 R v Salik [2004] EWCA Crim 2936, cited with approval in T (CA662/2012) v R [2013] NZCA 550at [31].outcome alone is not sufficient to amount to a miscarriage of justice.11 Unlikeinducing a plea under the mistaken assumption that no tenable defence existed,12failing to advise the defendant of the availability of a sentencing indication orincorrectly predicting the likely sentencing outcome does not impugn the guilty pleato the same degree. On this basis, there is no error upon which an appeal can beproperly mounted.[17] Even if this were not the case, Mr Walker-Oaariki would fall well short ofsatisfying the second limb of the threshold test as it is difficult to say that there was agenuine prospect of acquittal. Although there can be no doubt that Mr Walker-Oaarikihad an arguable defence to the strangulation charge, relying upon his own and thecomplainant's statements, the fact the complainant has been in a long-termrelationship with Mr Walker-Oaariki which has involved two prior occasions ofviolent offending against her, her letter completely exonerating him of all chargeswould likely have received little weight at trial. In contrast there was one independentwitness who observed Mr Walker-Oaariki strangling the complainant, while the other,although not as noted alleging strangulation, recorded that Mr Walker-Oaariki: grabbed the female around her neck with one of his hands. I think it was his lefthand, but I'm not sure. His hands were big enough to go around her neck. He waswalking towards her and pushing her back by the throat while slapping and punchingher with his free hand.[and later]I saw the male on top of the female holding her down. He had pinned her shoulderswith his knees. He was holding her by the scruff around her collar or her neck withone hand, I think it was his left hand.[18] As a result Mr Silich had advised Mr Walker-Oaariki:given the evidence of the independent witnesses when compared to the evidence ofthe complainant and Mr Walker-Oaariki, a judge would likely favour the evidence ofthe independent witnesses, an outcome that would have had adverse consequences forMr Walker-Oaariki.[19] At best, there was a slim chance of acquittal.11 T (CA662/2012) v R [2013] NZCA 550 at [36].12 At [34].[20] Given that position it is also difficult to identify any credible evidence thatMr Walker-Oaariki would not have entered a guilty plea anyway.[21] Overall, I conclude there is an insufficient factual basis to find Mr Walker-Oaariki's pleas of guilty were not a true acknowledgment of guilt.13 The appealagainst conviction must fail.The appeal against sentence[22] At sentencing Judge Jelas identified strangulation as the lead charge, and withreference to the decision of Cooke J in R v Ackland,14 identified the relevant factors ofthe offending to be that: 15(a) Mr Walker-Oaariki was in a domestic relationship with the victim;(b) he applied force to the victim's throat for four to five seconds;(c) the complainant did not lose consciousness;(d) there had been prior violence toward the complainant; and(e) both the violence and the strangulation only ended after interference bymembers of the public.[23] Ultimately, her Honour adopted a starting point of 30 months' imprisonmentfor the offending on 28 June 2019.16 Judge Jelas then applied a three month uplift totake account of prior offending involving the same victim, followed by a seven monthdeduction to reflect rehabilitative efforts by Mr Walker-Oaariki, an indicatedwillingness by Mr Walker-Oaariki to engage in restorative justice procedures had theybeen available, and his guilty pleas.17 This resulted in an end sentence of 26 months'imprisonment on the strangulation charge, including 5 days imprisonment imposed as13 See R v Saik [2004] EWCA Crim 2936 at [57].14 Ackland v Police [2019] NZHC 312.15 Police v Walker-Oaariki [2019] NZDC 25028 at [9].16 At [9].17 At [10].a result of remitting Mr Walker-Oaariki's fines and levies,18 and a concurrent sentenceof three months' imprisonment in regard to the assault charge.19Mr Walker-Oaariki's position on sentence appeal[24] Mr Taumihau submits that Judge Jelas erred by adopting a starting point thatwas too high. Mr Taumihau relies on what he submitted was comparable offendingconsidered in Houkamau v Police20 where a starting point of two years' imprisonmentwas said to be stern.21 As a result, Mr Taumihau submits that a starting point of aroundtwo years is also appropriate for the present offending.[25] Mr Taumihau also submits that Judge Jelas erred by double counting previousviolence by Mr Walker-Oaariki towards the victim, counting it both when calculatingthe starting point and when applying a three-month uplift for prior offending.[26] Mr Taumihau takes no issue with the deductions applied in the District Court,and with the adjusted starting point he submits that an end sentence of 20 months'imprisonment should be reached.Discussion – appeal against sentence[27] Section 250(2) of the Criminal Procedure Act 2011 provides that the Courtmust allow an appeal against sentence if satisfied that for any reason, there is an errorin the sentence, and a different sentence should be imposed. In any other case, theCourt must dismiss the appeal.22 The measure of error that must be shown, is that thesentence is "manifestly excessive".23 Whether a sentence is manifestly excessive is tobe examined in terms of the sentence given, rather than the process by which thesentence is reached.24 The High Court will not intervene where the sentence is within18 At [7] and [13].19 At [11] – [12].20 Houkamau v Police [2019] NZHC 2743.21 In Houkamau, Mr Houkamau called the victim offensive names and then proceeded to grab thevictim, who was lying on the couch and shove her out the front door. He then punched her in theforehead and began choking her. Mr Houkamau eventually let go of the victim's throat and pushedher to the ground.22 Section 250(3).23 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26]–[27].24 At [36].the range that can properly be justified by accepted sentencing principles as to do sowould amount to tinkering.25[28] Strangulation is a relatively new offence and there are only a limited numberof cases involving sentencing for such offending. As noted Judge Jelas relied on thedecision of Cooke J in Ackland which has provided some initial guidance. In thatdecision a number of factors relevant to the assessment of the seriousness of theoffending were identified, including: strangulation in the context of a domestic orintimate relationship/vulnerability of the victim; threats, particularly threats to kill;loss of consciousness; multiple events; other violence/injury; significant impact onothers; and breach of a protection order.26[29] Cooke J also identified three bands of offending:(a) band one where offending is at the lower end of the spectrum and doesnot involve any aggravating features. Here a starting point of betweensix months and two years' imprisonment will be appropriate;(b) band two where offending falls within the mid-range. Here a startingpoint of two to five years will be warranted; and(c) band three, where offending is at the highest range, involving a numberof aggravating factors. Here a starting point of between five and sevenyears' imprisonment will be appropriate.[30] In establishing this approach Cooke J stressed that it was not the number offactors that was important but the overall nature and culpability of the offending, andemphasised that the factors simply provide a framework for making that assessment.27This approach was also adopted by Thomas J in Houkamau and Doogue J in T v Police,however both emphasised that it was important not to let the approach to sentencingbecome overly mechanistic.2825 R v St John CA404/33, 24 May 2004 at [31].26 Ackland v Police [2019] NZHC 312 at [26](a) – (g).27 At [31].28 Houkamau v Police [2019] NZHC 2743 at [33]; T v Police [2019] NZHC 3375 at [35].[31] As Mr Taumihau noted, Houkamau also involved shoving the victim, punchingthe victim to the face and brief strangulation, attracting a starting point of two years'imprisonment. However, Mr Purdon correctly identifies that the current offending isslightly more serious than that in Houkamau given Mr Walker-Oaariki engaged in twoseparate acts of violent offending against the complainant, both of which only ceasedfollowing the intervention of members of the public. However, I do not see theoffending as involving coercion and control to quite the degree described byMr Purdon. Although consideration must be given to the victim's denial of theoffending and the fact that the offending occurred in the context of a long-termrelationship with a history of two prior domestic violence incidents, the lack of anyclear account of how the altercation arose, its public setting, the acknowledgment ofthe fact that the parties were fighting and the shortness of the strangulation agreed inthe summary of facts, makes it difficult to draw conclusions as to the extent coercionand control were evident.29[32] On the other hand in Milne v Police a 30 month starting point was identifiedfor one charge of strangulation and one charge of assault with intent to injure, the latterbeing a more serious charge than the assault charge faced by Mr Walker-Oaariki.30 Inthat case the offending involved a similar degree of violence, however, thestrangulation persisted for a longer period of time against a backdrop of a high degreeof coercion and control, rendering it more serious than the current offending.31[33] Having regard to these comparator cases, the starting point of 30 months'imprisonment adopted by Judge Jelas was too high, and a starting point of 26 months'29 See Milne v Police [2020] NZHC 358 as an example of coercive control where the offender lulledthe victim into a false sense of security, telling her he had calmed down and asking that she returnto pick him up after leaving him on the road side. When she returned Mr Milne launched himselfat the victim, head butted her to the face and then strangled her to the point where she felt as if shewas about to lose consciousness.30 It involving an intent that is absent from the charge of male assaults female.31 See summary of Milne v Police at footnote 29. See also T v Police [2019] NZHC 3375 where theoffending was also of much greater gravity. In T v Police Mr T and the victim had been in anargument the day prior and the victim had elected to leave the address. When she returned thenext morning Mr T ran at the victim shouting, "if I'm going to jail, I'm going for a good reason"and as he shouted this he delivered a running kick to her forehead. The victim lost consciousnessand awoke to Mr T dragging her into the house. The victim tried to escape out a window and Mr Tgrabbed her around the neck in a headlock and wrestled her to the bed. Eventually the victim lostconsciousness. For the strangulation charge a starting point of 36 months was adopted.imprisonment would have adequately taken into account the gravity of the offendingin relation to both the strangulation and the assault charges.[34] There can however be no dispute that the three-month uplift for the previousviolent offending towards the complainant was within range and was not doublecounted. Judge Jelas made it clear that in setting the starting point she was concernedonly with the other violence on 26 June 2019, namely the "other circumstances whichinclude there was associated violence in that you were punching her in the face andthat you had been previously violent towards her, stopped when the witness intervenedbut then continued again".32[35] Although the corrected starting point of 29 months' imprisonment issignificantly lower than that adopted by the sentencing judge it does not mean that theend sentence is manifestly excessive. As Mr Purdon submitted the seven-monthcombined discount (approximately 21 per cent) given in the District Court was"generous" and in fact on closer analysis cannot be justified.[36] In particular I agree with Mr Purdon that it is difficult to see on what basisMr Walker-Oaariki could be given a discount for either rehabilitation undertaken or awillingness to engage in restorative justice. The only rehabilitative efforts able to beidentified was that while Mr Walker-Oaariki was serving an earlier community-basedsentence he appears to have received some treatment for anger management andcompleted a Medium Intensity Rehabilitation Programme. This was of course beforethe present offending and it is difficult to see on what basis it demonstrates steps takenby Mr Walker-Oaariki to change his behaviour. Likewise, there is in fact noinformation before the court to indicate Mr Walker-Oaariki had wished to participatein restorative justice, only a reference in the PAC report that he wished to "reconcilewith the victim". Moreover, even if there had been a clearly expressed intention toparticipate in restorative justice it would be difficult to characterise this as genuinegiven the complainant's approach to the offending in the context of previous violenceby Mr Walker-Oaariki, and Mr Walker-Oaariki's own subsequent denial ofresponsibility with regard to the present offending.32 Police v Walker-Oaariki [2019] NZDC 25028 at [9].[37] In the absence of any discount for rehabilitative efforts/willingness toundertake restorative justice, Mr Walker-Oaariki was only entitled to a discount forhis guilty plea. This came on the day his charges were scheduled to be heard in a judgealone trial and as a result the discount he is entitled to is limited. I am howeverconscious that although the judge alone trial was scheduled and ready to proceed itcould not have taken place on that day, and I also accept Mr Taumihau's submissionthat Mr Walker-Oaariki's guilty plea followed the negotiation of the slight changes tothe summary of facts noted above. Given those considerations. I therefore concludethe guilty plea discount should be slightly greater than the 10 per cent discountrecognised as unexceptional for pleas at the commencement of trial.33 In thecircumstances I conclude the maximum discount for Mr Walker-Oaariki's guilty pleawas 12 per cent.[38] It can therefore be seen that when the guilty plea discount of 12 per cent isdeducted from the corrected starting point of 29 months the end sentence is 25.52months. Assessed against that figure the end sentence imposed by Judge Jelas of26 months is clearly not manifestly excessive, including as it does the additional fivedays in custody imposed in lieu of the fines and levies. As a result, the appeal againstsentence must be dismissed.Decision[39] The application for an extension of time to bring the appeal is granted.[40] The appeal against conviction and sentence is dismissed._______________________________Powell J33 Harris v R [2018] NZCA 632 at [43].