WIKI v DEPARTMENT OF CORRECTIONS [2023] NZHC 1634

WIKI v DEPARTMENT OF CORRECTIONS [2023] NZHC 1634 [28 June 2023]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2023-412-000036[2023] NZHC 1634BETWEEN FREE USHER DANI WIKIAppellantAND DEPARTMENT OF CORRECTIONSNEW ZEALAND POLICERespondentsHearing: 26 June 2023Appearances: K S M Lawrence for AppellantC J Flatley for CrownJudgment: 28 June 2023JUDGMENT OF EATON JThis judgment was delivered by me on 28 June 2023 at 4.45 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] On 2 May 2023, Free Wiki was sentenced to two years and three months'imprisonment by Judge Turner1 on charges of burglary,2 driving while disqualified(aggravated form),3 assault with a weapon,4 intentional damage,5 receiving property(over $1,000),6 breach of community work,7 breach of intensive supervision,8 andfailing to answer bail.9 He appeals that sentence.Facts[2] On 17 November 2021, Mr Wiki was stopped at a random Police checkpointdriving a motor vehicle. At the time, he was a disqualified driver with four priorconvictions for disqualified driving. He appeared in court and was granted bail on9 December 2021. A little over a week later, on 16 December 2021, he launched anunprovoked attack, on a man known to him, striking the victim four times with a pairof long-handled pruners. Mr Wiki then smashed the windscreen of the vehicle thevictim was travelling in, using the same weapon.[3] On 5 January 2022, Mr Wiki failed to appear in court on the driving whiledisqualified charge.[4] On 30 January 2023, a Honda Odyssey car was stolen from a Napier address.At about 5 am on 2 February 2022, Mr Wiki, together with an associate, travelled inthat vehicle and parked nearby the commercial premises of Just Jeans in Napier. Theoriginal registration plates on the Honda Odyssey had been removed and replaced.Mr Wiki and his associate broke into the premises of Just Jeans, causing extensivedamage to the front door. Inside the property, they stole $15,000 of clothing and thecash drawer from the till containing a small amount of cash. Police attended Mr Wiki'saddress and located the property stolen in the burglary and the stolen motor vehicle.1 New Zealand Police v Wiki [2023] NZDC 8467.2 Crimes Act 1961, s 231; maximum penalty ten years' imprisonment.3 Land Transport Act 1988, ss 32(1)(a) & 32(4); maximum penalty two years' imprisonment.4 Crimes Act, s 202C; maximum penalty five years' imprisonment.5 Summary Offences Act 1981, s 11(1)(a); maximum penalty three months' imprisonment.6 Section 246 & 247(a); maximum penalty seven years' imprisonment.7 Sentencing Act 2002, s 71(1)(a); maximum penalty three months' imprisonment.8 Section 70A(a); maximum penalty three months' imprisonment.9 Bail Act 2000, s 24; maximum penalty three months' imprisonment.[5] On 14 May 2022, Mr Wiki breached a sentence of community work and asentence of intensive supervision.District Court decision[6] After traversing the facts of Mr Wiki's offending, the Judge referred to hiscriminal history, observing that Mr Wiki had accumulated five convictions fordisqualified driving and had prior convictions for burglary, failing to answer bail andreceiving stolen property. The Judge referred to a pre-sentence report recordingMr Wiki's explanation that he had committed the offending after he became depressedfollowing a relationship break-up. The Provision of Advice to Courts (PAC) reportrecorded that, since the offending, Mr Wiki had moved away from Napier to Dunedin,to address the "unsatisfactory aspects" of his life and complete his outstandingsentences. A sentence of community work and intensive supervision wasrecommended.[7] The Judge adopted a starting point of 12 months' imprisonment for drivingwhilst disqualified, observing that Mr Wiki had prior convictions in 2018, 2019 andtwo in 2021, but that there were no aggravating features of that offending. A 12-monthstarting point was adopted for the assault with a weapon, recognising this was anunprovoked attack that involved four hard blows directed at the head, followed by theintentional damaging of the car. A 20-month starting point was adopted for theburglary, the Judge observing that businesses like Just Jeans are vulnerable to burglaryin the early hours of the morning. A starting point of eight months' imprisonment wasadopted for receiving the Honda Odyssey and an additional month was added for thebreaches of sentence.[8] That gave rise to a starting point of 53 months' imprisonment which the Judgereduced, without comment, to 36 months' imprisonment.[9] An uplift of 10 per cent was applied for previous convictions and offendingboth on bail and sentence. A guilty plea credit of 15 per cent was allowed. Withreference to personal matters detailed in two pre-sentence reports, the Judge alloweda five per cent discount for background matters, including Mr Wiki's relative youth, atroubled background, having been born into a family of close gang involvement, andhis exposure to violence that the Judge accepted would have shaped his mindset. TheJudge allowed a further 15 per cent discount in recognition of the rehabilitative stepstaken by Mr Wiki. The Judge refused to allow a credit to reflect Mr Wiki having beenon a 24-hour curfew for over seven months and a night-time curfew for six months,observing that Mr Wiki had breached bail on three occasions.[10] The Judge arrived at a net 25 per cent deduction reducing the 36-monthsentence of imprisonment to one of 27 months' imprisonment.Principles on appeal[11] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.10 As the Court of Appeal mentioned in Tutakangahau v R, quoting thelower court's decision, a "court will not intervene where the sentence is within therange that can properly be justified by accepted sentencing principles".11 It is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.12SubmissionsAppellant's submissions[12] Ms Lawrence, on behalf of Mr Wiki, submits the starting point adopted for thecharge of burglary should not have been greater than 15 months' imprisonment. Sherefers to Bracey v Police,13 Poole v R,14 Bates v R,15 and Thomas v Police16 as casesinvolving more serious burglaries but similar starting points.10 Criminal Procedure Act 2011, ss 250(2) and 250(3).11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].12 Ripia v R [2011] NZCA 101 at [15].13 Bracey v Police [2022] NZHC 476.14 Poole v R [2014] NZHC 1226.15 Bates v R [2016] NZCA 456.16 Thomas v Police [2020] NZHC 273.[13] She submits, with reference to Whitely v Police,17Jenkins v Police,18 and,Johnathan v Police19 the starting point adopted for the driving whilst disqualifiedshould have been no more than six months' imprisonment. She observes the absenceof aggravating factors beyond the previous convictions.[14] Ms Lawrence submits the Judge erred in imposing a one-month uplift for thebreaches of sentence. She highlights that, prior to sentencing, Mr Wiki had completedboth sentences. The pre-sentence report confirmed Mr Wiki completed departmentalprogrammes and the rehabilitative programme intervention report had describedMr Wiki as being punctual, attending all group sessions and engaging appropriately.[15] Ms Lawrence submits the appropriate global starting point was no greater than41 months' imprisonment. While acknowledging the totality discount allowed by theJudge was generous, Ms Lawrence submits the adjusted starting point was notproportionate to the gravity of the overall offending. She contends for an adjustedstarting point, adjusted for totality, of 32 months' imprisonment.[16] As regards personal mitigating factors, Ms Lawrence submits the Judge erredin not allowing a credit to reflect Mr Wiki having been on restrictive bail conditionsfor over 13 months. Whilst it is acknowledged there were three breaches of bail overthe period, Ms Lawrence submits that a discrete credit of five per cent was neverthelessavailable.[17] Ms Lawrence submits the five per cent discount allowed for backgroundfactors was too low and that a 10 per cent allowance was appropriate. Ms Lawrencehighlights Mr Wiki's birth into a family with strong gang affiliations and consequentialexposure to violence and drugs.[18] Ms Lawrence submits that the appropriate end sentence ought to be under twoyears' imprisonment and that a sentence of home detention is the least restrictivesentence. She highlights that Mr Wiki has an approved address and the opportunity to17 Whitely v Police [2016] NZHC 1025.18 Jenkins v Police [2018] NZHC 2055.19 Johnathan v Police [2019] NZHC 1115.return to his pre-custodial employment. She highlights that Mr Wiki has never beensentenced to imprisonment or to an electronically monitored sentence.Respondent's submissions[19] Ms Flatley, for the Crown, submits the individual starting points wereappropriate and that both the totality adjustment and credits for personal factors weregenerous. Ms Flatley refers to authorities said to support the starting point adopted bythe Judge for the burglary.20 She highlights a degree of premeditation, given Mr Wikiwas in a stolen vehicle fitted with false registration plates, the value of the items stolenand the damage to the property, as justifying the 20 months' starting point.[20] Ms Flatley acknowledges the 12-month starting point adopted for thedisqualified driving charge was at the high end of the available range. Ms Flatleysubmits that the adopted starting points for aggravated disqualified driving do varysignificantly, citing Jonathan v Police.21 She highlights that Mr Wiki's previousconvictions are highly proximate to each other, he having accrued three convictions in2021. Ms Flatley submits that even if the 12-month starting point was too high, it isabsolved by the totality discount.[21] Ms Flatley submits the uplift of one-month for the sentence breaches wasappropriate and the starting point of 12 months' imprisonment for the charge of assaultwith a weapon was lenient. As regards the refusal to allow a credit for time spent onrestrictive bail conditions, Ms Flatley refers to the observation of the Court of Appealin Tuikolovatu v R that an offender who wants credit for restrictive bail conditionsshould be able to show that he complied with them.22 Ms Flatley highlights the threebail breaches committed by Mr Wiki.[22] Ms Flatley submits the 20 per cent credit adopted by the Judge to reflectMr Wiki's background and attempts at rehabilitation was generous. She contrasts thecredit allowed with that allowed for background and addiction issues by the Supreme20 Adams v R [2012] NZCA 515; Lawson v Police [2016] NZHC 1158; and Ikahihifo v Police [2012]NZHC 3553.21 Jonathan v Police, above n 19, at [14].22 Tuikolovatu v R [2012] NZCA 203.Court in Berkland v R.23 Ms Flatley observes the Judge did not have the benefit of as 27 cultural report for Mr Wiki. It was therefore unclear what specific causative linksexist between his background and his offending. Given the paucity of information thatwas available to the Judge, Ms Flatley submits the overall credit of 20 per cent toreflect background rehabilitation was generous.AnalysisBurglary[23] Having regard to the authorities, and in particular the case of Bracey, I am notpersuaded the starting point of 20 months' imprisonment was outside the availablerange.24 It was a stern starting point but not one that was erroneous. Mr Wiki'soffending had elements of premeditation. A stolen vehicle with false plates was usedto facilitate the burglary. Damage was inflicted and the value of the property stolenwas significant.Driving whilst disqualified[24] I agree with counsel that it is hard to discern from a review of the authorities aconsistent range of starting point adopted for a fifth conviction of driving whilstdisqualified. In Apiata v Police,25 a 22nd conviction led to a 12-month starting point,and in Whitely26, Opetaia27 and Russell,28 starting points of between nine and10 months' imprisonment were adopted for eighth offences. In Johnathan, Mander Jfound a starting point of 12 months' imprisonment for a sixth conviction and theimposition of a four-month uplift for a seventh conviction was not out of range.29[25] Mr Wiki was stopped at a random checkpoint. There were no aggravatingfactors particular to the offending. I agree with Ms Lawrence that the 12-month23 Berkland v R [2022] NZSC 143.24 Bracey v Police, above n 13.25 Apiata v Police [2016] NZHC 3119 at [21], the starting point for one charge was 12 months, withthree six-month cumulative additions for three other offences.26 Whitely v Police, above n 17.27 Opetaia v Police [2015] NZHC 2532, three-month uplifts for three other driving while disqualifiedcharges.28 Russell v Police [2018] NZHC 858.29 Jonathan v Police, above, n 19.starting point adopted by the Judge did err on the high side. Having reviewed theauthorities, I consider a starting point in the region of eight months' imprisonment wasappropriate.Breach of sentences[26] The Judge imposed a one-month uplift to the starting point on the charges ofbreaching intensive supervision and breaching community work. Ms Lawrencesubmits this was an error and the appropriate sentence was a conviction and discharge.[27] I agree. The admitted breaches were committed in the aftermath of a clusterof offending that gave rise to the sentence under appeal. Mr Wiki had been compliantwith previous sentences of intensive supervision and community work. Having beenbreached, Mr Wiki re-engaged with both sentences. Those sentences had beencompleted without issue prior to sentencing. The PAC report dated 16 January 2023confirmed Mr Wiki had recently completed a departmental short rehabilitationprogramme (SRP) as part of the sentence of intensive supervision and that Mr Wiki"informed he is going to complete his SRP maintenance sessions." The programmefacilitator described Mr Wiki as having "engaged appropriately in all aspects of theprogramme. He was punctual and consistently attended sessions." A further PACreport dated 19 April 2023 recorded that the sentence of intensive supervision hadexpired on 8 March 2023, that Mr Wiki had completed the maintenance sessions, andrecommended a sentence of intensive supervision and community work.[28] I consider the entry of convictions for the breaches was the appropriateresponse for that offending. Mr Wiki's positive re-engagement and successfulcompletion of both sentences mitigated the breaches. That the same sentences wererecommended in the PAC report highlights that the breaches were low level.Other offences[29] No issue is taken with the starting points adopted for the other offending. Iagree with Ms Flatley, a higher starting point could have been adopted for the assaultwith intent to injure.Totality deduction[30] The Judge allowed a totality deduction of about 33 per cent. That was generousand must be recognised in any adjustment to reflect the view I have reached in relationto the starting point for the disqualified driving and the uplift for the sentence breaches.I fix the adjusted starting point at 35 months' imprisonment.Personal considerations - aggravating[31] The Judge uplifted the starting point by 10 per cent to reflect Mr Wiki hadrecent prior convictions for burglary and receiving and had offended whilst on bailand subject to sentence. No issue is taken with that uplift on appeal.Personal consideration - mitigating[32] Ms Lawrence contends that the five per cent credit to reflect Mr Wiki'spersonal background was inadequate. I agree with Ms Flatley that it is appropriate toconsider this issue having regard to the credit of 20 per cent the Judge allowed for bothpersonal background and rehabilitation.[33] Whilst Ms Flatley observes that there was no s 27 cultural report, I do notconsider that factor to be significant. The material available to the Judge, includingthe pre-sentence report and an alcohol and drug report, provided sufficient informationfor the Judge to understand that Mr Wiki's personal background was a relevant factorin considering how and why he came to offend. I agree with the Judge that having afather who was the President of the local chapter of the Mongrel Mob and beingexposed to drugs and violence from an early age, has shaped Mr Wiki's mindset. Butit also set him on path over which I accept he was highly vulnerable.[34] Ms Lawrence raises Mr Wiki's age as a relevant personal factor. Mr Wiki wasaged 21 years at the date of his offending. The Judge described Mr Wiki as being atthe upper end of the youth range and observed that he was not a first offender. TheJudge was right to describe Mr Wiki as being at the upper end of the youth range.[35] Relevantly, Mr Wiki had not previously been sentenced to a term ofimprisonment. He had not been either sentenced to, or subject to, electronicmonitoring. The offending did have the hallmarks of the impulsivity and vulnerabilityof a younger person. It occurred over a period of weeks in what was described by thepre-sentence author as a "cluster" of offending. Mr Wiki explained that he respondedpoorly to a relationship break-up. The assault offending was unprovoked andseemingly impulsive. The burglary was committed in the presence of a co-offender bysmashing the front door of commercial premises at around 5 am and is offendingcommonly associated with youthful offenders.[36] In my view, a discrete credit for youth was available. On the other hand, thecredit of 15 per cent for rehabilitative efforts was generous. The offending hadoccurred in Napier. It was very much to his credit that Mr Wiki had resolved to leaveNapier and relocate to Dunedin with a view to sever ties with negative influences andmake a fresh start. In Dunedin he had secured employment. He had not reoffended.He had completed his sentences of intensive supervision and community work andimpressed Corrections such that the same sentences were being recommended.[37] Standing back, I consider the 20 per cent allowance to reflect personalbackground factors and rehabilitation is not inadequate. In coming to that view, I ammindful that Mr Wiki's youth is relevant in determining if a deduction to reflect timespent on restrictive bail conditions ought to have been allowed.Credit for restrictive bail conditions[38] For seven months a condition of Mr Wiki's bail was a 24-hour curfew. Forsix months he was subject to a night-time curfew. The Judge would not entertain acredit because Mr Wiki had breached bail conditions on three occasions.[39] Any curfew imposed on a young person is a significant restriction. A 24-hourcurfew, and particularly one that is not monitored electronically gives rise to a verysignificant restriction. In effect, Mr Wiki was subject to an unmonitored sentence ofhome detention. A discrete credit to reflect such restrictive bail conditions over aprolonged period is orthodox. What then of the bail breaches?[40] Having regard to Mr Wiki's age, his personal background and that he hadrecently engaged in a cluster of offending including breaches of sentence, I do notthink it surprising that there were bail breaches. What is significant is that Mr Wiki isnot alleged to have offended on bail30 and none of the breaches were deemedsufficiently serious as to justify a revocation of bail. Rather, after seven months of 24-hour curfew, the bail conditions were relaxed to a night-time curfew.[41] Ms Flatley referred to the Court of Appeal decision in Tuikolovatu in supportof the submission that an offender who wants credit for restrictive bail conditionsshould be able to show that he has complied with those conditions.31 I do notunderstand the observation made by the Court of Appeal to be an absolute. Rather,each case must turn on its own facts and in particular the offender's personalcircumstances and the nature of the breaches. In R v Karaitiana, a 21-year-olddefendant who had been subject to a 24-hour curfew for approximately eight monthswithout electronic monitoring was allowed a discount of eight months,notwithstanding "one or two breaches" in recognition of his compliance with the bailrestrictions which the Judge described as being a significant achievement for a 21-year-old.32[42] Ms Lawrence highlighted that in dealing with a bail breach in January 2023,Judge Smith had warned Mr Wiki that he would be remanded in custody if he was toagain breach bail. The notes made by the Judge indicate the breach related to Mr Wikileaving his address to "get a feed". The Judge recorded that Mr Wiki having"otherwise done well" and having not re-offended, as grounds for his re-admission tobail. Ms Lawrence highlights that Mr Wiki heeded that warning and had not breachedbail between January and sentencing in May.[43] I disagree with the Judge that the three breaches of bail negated any allowanceto reflect restrictive bail conditions. As a young man, unsupervised on bail, he spentover a year on curfew with three occasions of non-compliance. In my view someallowance was appropriate. The credit allowed by Thomas J in Karaitiana wasgenerous. I consider a three-month credit was appropriate to reflect restrictive bailconditions.30 After he was subject to the 24-hour curfew.31 Tuikolovatu v R [2012] NZCA 203.32 R v Karaitiana [2020] NZHC 91.The final calculation[44] From an adjusted starting point of 35 months' imprisonment, I apply the upliftsand credits for personal factors adopted by the Judge, giving rise to a net credit of25 per cent. That leads to a sentence of 26 months' imprisonment. I allow a furtherthree months' credit to reflect time spent on restrictive bail conditions leading to anend sentence of 23 months' imprisonment.Home detention[45] Ms Lawrence confirms that the address proposed for home detention in thePAC report remains available. Corrections considered the address to be unsuitable ifMr Wiki's partner was residing at the address. Ms Lawrence confirms that Mr Wiki'spartner will not be. Ms Lawrence has provided references confirming that Mr Wiki'semployment remains available to him. Employment will play an important role inMr Wiki's rehabilitation.[46] In considering whether to commute the sentence of imprisonment to one ofhome detention, I am mindful of s 16 of the Sentencing Act. Most particularly, I ammindful that Mr Wiki is a young man who, having regard to his personal background,is vulnerable. In my view, care needs to be taken to reduce the prospect of Mr Wikiemerging from prison a more hardened criminal that when he was taken into custody.33[47] In my view, the least restrictive appropriate sentence is one of home detention.Mr Wiki has served approximately two months of a sentence of imprisonment. Itherefore reduce the term of home detention to one of nine months.Result[48] The appeal is allowed. The sentence of 27 months' imprisonment is quashed,and a sentence of nine months' home detention is substituted, commencing from29 June 2023, on all charges other than the breaches of intensive supervision andcommunity work. On those charges Mr Wiki is convicted and discharged.33 See Kane v Police [2012] NZHC 209 at [35].[49] The sentence of nine months' home detention is subject to the condition thatMr Wiki travels directly to the home detention residence recorded in the PAC reportdated 19 April 2023 and on the special conditions and post-detention conditions asoutlined in that report....................................................Eaton JSolicitors:Ministry of Justice - Public Defence Service, DunedinRPB Law, Dunedin