WALKER-OAARIKI v NEW ZEALAND POLICE [2020] NZCA 447

WALKER-OAARIKI v NEW ZEALAND POLICE [2020] NZCA 447 [23 September 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA327/2020[2020] NZCA 447BETWEEN ALAIN WALKER-OAARIKIApplicantAND NEW ZEALAND POLICERespondentCourt: Goddard, Ellis and Dunningham JJCounsel: G H Vear and D J Taumihau for ApplicantZ W Q Andrew for RespondentJudgment:(On the papers)23 September 2020 at 11.30 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal against conviction is declined.____________________________________________________________________REASONS OF THE COURT(Given by Dunningham J)[1] Mr Walker-Oaariki applies for leave to bring a second appeal againstconviction under s 237 of the Criminal Procedure Act 2011 (CPA). The application isbrought on the ground that a risk of a miscarriage of justice arises becausethe High Court refused to set aside his guilty pleas on charges of strangulation andassault on a person in a family relationship.11 Walker-Oaariki v Police [2020] NZHC 1087 [High Court judgment].The statutory test[2] The threshold for leave to bring a second appeal is high.2 Section 237(2) ofthe CPA prevents this Court from granting leave to bring a second appeal againstconviction unless this Court is satisfied that:(a) the appeal involves a matter of general or public importance; or(b) a miscarriage of justice may have occurred, or may occur unless theappeal is heard.Background facts[3] Mr Walker-Oaariki was charged with strangulation3 and assault on a person ina family relationship,4 following a confrontation between him and his partner on28 June 2019. The assault was witnessed by two independent persons. The chargeswere scheduled to be heard at a Judge-alone trial on 7 November 2019, withMr Walker-Oaariki having been in custody since 29 June 2019.[4] On 7 November 2019, it transpired the Court was over-booked, and the trialhad to be adjourned. That meant Mr Walker-Oaariki would spend further timeremanded in custody until the new fixture date which was estimated to be in April thefollowing year. Trial counsel, Mr Silich, said Mr Walker-Oaariki's primaryconsideration was "the time he already had, and may yet have to spend in custody".For this reason, a sentence indication was not discussed with Mr Walker-Oaariki astrial counsel considered that would lead to further delays, which Mr Walker-Oaarikiwanted to avoid.[5] Having been advised that a potential end sentence of 14 to 18 months'imprisonment was possible after factoring in a guilty plea discount, and after counselnegotiated some modest amendments in the summary of facts in Mr Walker-Oaariki'sfavour, he entered guilty pleas to both charges that day. He was sentenced on10 December 2019 to two years and two months' imprisonment.52 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.3 Crimes Act 1961, s 189A: maximum sentence of seven years' imprisonment.4 Section 194A: maximum sentence of two years' imprisonment.5 Police v Walker-Oaariki [2019] NZDC 25028.The High Court decision[6] Mr Walker-Oaariki appealed his conviction and sentence to the High Court.He relied primarily on the failure to advise him to obtain a sentence indication ratherthan on the ground now advanced.[7] On 22 May 2020, Powell J dismissed the appeal. In his judgment, Powell Jbriefly outlined the facts, noting that the physical confrontation betweenMr Walker-Oaariki and his partner was observed by members of the public. He wasseen to pull the complainant to the ground and place his hands around thecomplainant's throat, strangling her before punching her twice to the face.The confrontation was broken up when members of the public intervened.6[8] Powell J then set out the legal principles applying to an appeal againstconviction based on trial counsel error, citing Whichman v R, as follows:7Where an appeal against conviction following a guilty plea relies on trialcounsel error, a miscarriage will arise where the following threshold is met:(a) the advice given by trial counsel was erroneous;(b) there was a genuine prospect of acquittal at trial had the plea notbeen entered; and(c) there is credible evidence that but for the erroneous advice, theguilty plea would not have been entered.[9] Counsel for Mr Walker-Oaariki submitted that trial counsel gave advice whichwas erroneous by:8(a) not providing the option of a sentencing indication during the resolutiondiscussions; and(b) advising Mr Walker-Oaariki that if he was to plead guilty he wouldreceive a sentence shorter than the period he would spend in custodyawaiting trial.6 High Court judgment, above n 1, at [4].7 At [9] (footnote omitted), citing Whichman v R [2018] NZCA 519 at [41].8 At [10].[10] It was argued for Mr Walker-Oaariki that he had a viable defence to the chargeof strangulation, in that the complainant did not allege she was strangled. One of theindependent witnesses did not specifically refer to strangulation but observedMr Walker-Oaariki with his hand around the complainant's throat and pushing herbackwards and later holding her by the scruff of her collar.9[11] Finally, in support of the third limb in Whichman, Mr Walker-Oaariki filedaffidavit evidence indicating that the main factor driving his decision to enter guiltypleas was to avoid serving a longer time in custody.10[12] The Judge, however, found that the appeal against conviction could notsucceed. The appeal in the High Court focused on the failure by trial counsel to adviseMr Walker-Oaariki of the availability of a sentencing indication. However, the Judgenoted "a failure to do so, on its own, will be insufficient to give rise to a miscarriageof justice", citing T (CA662/2012) v R.11 Furthermore, Mr Walker-Oaariki was"not unfamiliar with the concept of a sentence indication".12[13] The Judge also rejected the suggestion that the case was comparable tothe situation in T (CA662/2012) or Whichman, saying:13It is clear that in both these cases the issues identified went to the heart of theguilty plea whereas in the present case it is clear that Mr Walker-Oaariki wassimply disappointed in the ultimate sentencing outcome.[14] The Judge held that erroneous advice as to the length of a sentence wasinsufficient to amount to a miscarriage of justice, saying unlike the circumstances inT (CA662/2012), where a plea was induced under the mistaken assumption that notenable defence existed, "incorrectly predicting the likely sentencing outcome doesnot impugn the guilty plea to the same degree".149 At [11].10 At [12].11 At [13] citing T (CA662/2012) v R [2013] NZCA 550 at [35]–[36].12 At [14].13 At [15].14 At [16].[15] In any event, the Judge held that Mr Walker-Oaariki fell well short of satisfyingthe second limb of the threshold test in Whichman, noting there was an independentwitness who observed Mr Walker-Oaariki strangling the complainant and another whorecorded that he "grabbed the female around her neck with one of his hands".15In those circumstances, and noting his previous incidents of violent offending againsthis partner, her subsequent letter exonerating him of all charges would have likelyreceived little weight at trial. He held there was, at best, a "slim chance of acquittal".16[16] Finally, in respect of the third limb, the Judge said it was "difficult to identifyany credible evidence that Mr Walker-Oaariki would not have entered a guilty pleaanyway".17 For those reasons he dismissed the appeal against conviction.[17] In addressing the appeal against sentence, the Judge accepted the starting pointwas too high but the discounts which had been given for rehabilitative efforts andwillingness to engage in restorative justice could not be sustained. The end sentencetherefore was not in error and the appeal against sentence was dismissed.18Grounds of appeal[18] Mr Walker-Oaariki advances this application for leave for a second appealagainst conviction solely on the basis he received erroneous advice as to the possiblelength of sentence he would gain on a guilty plea and, following Su'a v R,19 andWhichman,20 this resulted in a miscarriage of justice. He does not pursue the appealagainst sentence.[19] Applying the criteria in Whichman, Mr Walker-Oaariki says the High Courtfailed to take account of the following factors:(a) There was unchallenged evidence that the erroneous advice induced theentry of the plea.15 At [17].16 At [19].17 At [20].18 At [33]–[38].19 Su'a v R [2017] NZCA 439.20 Whichman v R, above n 7.(b) There was a genuine prospect of acquittal.(c) There was credible evidence that, but for the erroneous advice, a guiltyplea would not have been entered.[20] Counsel for Mr Walker-Oaariki, submits that in distinguishing this case fromWhichman, the High Court set "too high a threshold at which advice on plea can befound erroneous", noting that in Su'a, this Court commented that:21We note that the stated fourth category in Merrilees does not specifically referto advice as to sentence but we think it implicit in the reference to"other outcomes", and in the Court's observation regarding the reasons forpleading, that miscarriage of justice for the purposes of a conviction appealfollowing a guilty plea could include erroneous advice regarding sentencingoutcomes.[21] Accordingly, counsel for Mr Walker-Oaariki submits that overly optimisticadvice as to the length of sentence is an error capable of undermining the basis onwhich a guilty plea was entered. Furthermore, he submits that the erroneous adviceneed not be presented as an unequivocal assurance to the defendant, saying thatthe facts of Whichman demonstrate that a misapprehension shared by trial counsel andthe defendant can constitute an error striking at the validity of the guilty plea.[22] Counsel for Mr Walker-Oaariki also maintains that there was a genuineprospect of acquittal, because the independent witnesses could not comment onwhether the complainant's breathing or blood circulation was affected which is anelement of the offence of strangulation.22[23] Finally, it is submitted that the affidavit evidence of both Mr Walker-Oaarikiand his trial counsel, Mr Silich, support the position that Mr Walker-Oaariki pleadedguilty based on the advice as to sentence. Mr Silich's affidavit confirms thatMr Walker-Oaariki's primary consideration was time spent in custody.21 Su'a v R, above n 19, at [11].22 Crimes Act, s 189A.Discussion[24] The application for leave to bring a second appeal is brought solely onthe grounds that a miscarriage of justice may have occurred. There is no suggestionthat the appeal involves a matter of general or public importance and we do notconsider this ground further. It turns on whether it is arguable that a Whichman-styleerror was made by trial counsel when he estimated a likely sentence length of14 to 18 months, when in fact the sentence imposed was 26 months' imprisonment.[25] We do not think this is seriously arguable. The affidavit evidence of Mr Silichsays:3.5 I did advise that a potential end sentence, after factoring in a guiltyplea discount, of 14 to 18 months was possible. I did tellMr Walker-Oaariki that these figures were estimates only and thatdependent on a number of factors, the sentence could be longer.Other factors, including the potential release date, and the possible new hearing datewere all described by Mr Silich as "possibilities".[26] We accept that Mr Walker-Oaariki said:61 I only pled guilty to the strangulation charge because I thought thatI would be released shortly. Had I known what my sentence wasgoing to be, I would have continued to defend the charge.[27] However, while Mr Walker-Oaariki was expecting to receive a short term ofimprisonment and would be released shortly in line with his trial counsel's advice, thissimply cannot reach the threshold of error which would warrant setting aside the guiltyplea.[28] In Whichman, the error was a misunderstanding of the practical effect of thesentence indication which had been given and led to the appellant being specificallyadvised that he would be released on a time served basis when that was not correct.23Similarly, in T (CA662/2012), the erroneous advice was not as to sentence length butas to the prospects of a discharge without conviction.2423 Whichman v R, above n 7.24 T (CA662/2012) v R, above n 11.[29] In R v Saik, the appellant sought to vacate his guilty pleas on the basis he hadreceived erroneous advice as to the likely length of sentence and as to the security ofhis matrimonial home in subsequent confiscation proceedings.25 The English Courtof Appeal acknowledged that defence counsel's advice was "optimistic", butdismissed the appeal, concluding that the appellant had entered his guilty plea withoutpressure from counsel, the Court or anyone else.26 The Court said that for an appealagainst conviction to succeed on the basis the guilty plea was entered after erroneousadvice:27 the facts must be so strong as to show that the plea of guilty was not a trueacknowledgment of guilt. The advice must go to the heart of the plea [30] In the present case, Mr Walker-Oaariki received clear advice on the strength ofthe case against him. There was no defence to the assault charge, and the slimmest ofprospects of success on the strangulation charge given the evidence of independentwitnesses. Mr Walker-Oaariki weighed that against the advice as to potential sentencelength, and the benefit of a discount for guilty pleas and the negotiated modificationsto the summary of facts. While the advice as to sentence length was unduly optimisticit was not an error which went to the heart of the guilty pleas in this case.[31] As there is no real risk a miscarriage of justice has occurred, the threshold forgranting leave to bring a second appeal is not reached.Result[32] The application for leave to bring a second appeal against conviction isdeclined.Solicitors:Public Defence Service, Auckland for ApplicantCrown Law Office, Wellington for Respondent25 R v Saik [2004] EWCA Crim 2936 at [5].26 At [55].27 At [57].