WATI v R [2016] NZCA 69

WATI v R [2016] NZCA 69 [15 March 2016]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA570/2015[2016] NZCA 69BETWEEN ALLAN NELSON WATIApplicantAND THE QUEENRespondentCourt: Kós, Keane and Dobson JJCounsel: Applicant in personK A Courteney for RespondentJudgment:(On the papers)15 March 2016 at 3.30 pmJUDGMENT OF THE COURTA An extension of time within which to bring an application for leave is granted.B The application for leave to bring a second appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Kós J)[1] Mr Wati pleaded guilty to charges of male assaults female, assault with intent to injure, threatening to kill and assault with a weapon in the Nelson District Court.He was sentenced to two years and nine months' imprisonment.1 An appeal against sentence was dismissed by Brewer J in the High Court.2 He now seeks leave to bring a second appeal to this Court.District Court[2] The charges were that Mr Wati pulled the female complainant by the hair, punched her in the face, threw a cell phone at her, punched her in the face again, threatened to kill her and grabbed her and pulled her by her dressing gown. A police officer then arrived. Mr Wati punched the officer in the head.[3] Mr Wati was initially charged also with sexual violation by unlawful sexual connection by inserting a wine bottle into the complainant's vagina after pulling herhair. That charge was withdrawn.[4] The District Court Judge took a starting point of 27 months' imprisonment forthe charges concerning the female complainant, and 18 months for the charge concerning the police officer. On a totality basis, he reduced the 27 month starting point to 24 months to obtain a total of 42 months. He uplifted this by three months to 45 months for previous violent offending, and then gave a 25 per cent discount for the guilty pleas.[5] The end sentence was two years and nine months' imprisonment. Nominallythis was structured on a different basis to the initial analysis: two years and nine months on the assault with intent to injure against the police officer and twelve months concurrent for each of the other charges.3[6] In reaching this conclusion, the Judge said the insertion of the wine bottle didnot form part of the charges but was "indicative of an attitude of contempt towards"the complainant.41 R v Wati [2015] NZDC 11650.2 Wati v R [2015] NZHC 2064.3 R v Wati, above n 1, at [30].4 At [15].High Court[7] On appeal, Brewer J held the respective starting points of 27 months and 18 months were within range. He said the nominal structure of the sentence was"unusual" and out of kilter with the initial analytical approach, but the overall endsentence was not out of range.5 In fact, the Judge said he would have imposed a significantly more severe sentence.6[8] Brewer J considered the District Court Judge should not have referred in sentencing to the introduction of the wine bottle to the complainant's vagina asindicative of an attitude of contempt towards her. There was no evidential basis for saying there was an attitude of contempt as the complainant had said she consented to the insertion. But the Judge said that did not result in a material error.7[9] Brewer J dismissed an argument that a three month discount should have been given for a letter of forgiveness from the complainant. Such a discount had been contemplated in a sentencing indication. However, the complainant had later stated in a victim impact statement she was manipulated by Mr Wati into writing the letter of forgiveness.8Application for leave[10] The application for leave to appeal was filed out of time by four days. The Crown does not oppose an extension of time, which is granted accordingly.[11] Mr Wati seeks leave for a second appeal because he says a miscarriage of justice has occurred for these reasons:(a) The District Court Judge should not have referred to the wine bottle incident.5 Wati v R, above n 2, at [27].6 At [29].7 At [31].8 At [32]–[34].(b) The District Court Judge was not able to take a starting point of 27 months for the male assaults female charges against the complainant.(c) The sentences should not have been cumulative.(d) A discount for the complainant's letter of forgiveness should havebeen given as contemplated by the sentencing indication.Discussion[12] Leave is sought only on the basis a miscarriage of justice has occurred. There is no argument any issue raised is of general or public importance.9[13] None of the issues summarised above at [11] in our view raise any concern of a miscarriage of justice.[14] In response to Mr Wati's complaints:(a) It is clear the District Court Judge should not have referred to the wine bottle incident. But this was a sentencing decision, following a guilty plea. The comment was a minor part of the sentencing reasoning. It seems to have had no material effect on the result, which in that context is what matters.(b) The starting point of 27 months for the charges concerning the female complainant was reached on the basis of four counts of male assaults female, one of assault with a weapon, and one of threatening to kill. The assault with a weapon and threatening to kill charges have maximum sentences of five and seven years' imprisonmentrespectively. The starting point adopted was plainly within the range open to the Judge given the degree of seriousness of the crimes committed by Mr Wati.9 Criminal Procedure Act 2011, s 253.(c) The incidents against the female complainant and police officer were distinct. A cumulative approach was not inappropriate.(d) No discount for forgiveness was appropriate because the complainant had recanted her forgiveness.[15] At the end of the day it cannot sensibly be said the end sentence was out of range for the crimes Mr Wati committed. There is no miscarriage evident. That is the end of the matter.Result[16] An extension of time is granted, but the application for leave to bring a second appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent