PIKI (AKA) PIKIRANGI v R [2023] NZHC 3306

PIKI (AKA) PIKIRANGI v R [2023] NZHC 3306 [21 November 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2023-485-67[2023] NZHC 3306BETWEEN INA PIKI (AKA)POKOINA PIKIRANGIAppellantAND THE KINGRespondentHearing: 15 November 2023Counsel: E A Hall and R E O'Hagan for AppellantJ MacPherson and S Carter for RespondentJudgment: 21 November 2023JUDGMENT OF ISAC J[Sentence appeal]Introduction[1] Mr Pikirangi appeals against a sentence of 22 months' imprisonment imposedby the District Court on one charge of wounding with reckless disregard.1[2] He advances two grounds of appeal:(a) that Judge Johnston in the Court below misapplied the two-stepsentencing methodology set out in Moses v R;2 and(b) that the Judge failed to provide a discount for remorse.1 Crimes Act 1961, s 188(2); maximum penalty seven years' imprisonment.2 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.The offending[3] Mr Pikirangi had been in a relationship with the victim for approximately twoyears.3 The summary of facts recorded that there had been 10 previous family harmincidents between the appellant and his victim.4 Four days after they had separated,the victim approached an address where Mr Pikirangi was living at 10.30 pm in theevening. He was awoken by her knocking on his window, asking for her belongings.The appellant told the victim to "fuck off" and said that he had smashed herbelongings.5 Nevertheless she continued to call out for around five minutes whilestanding outside the address.[4] Mr Pikirangi then obviously flew into a rage. He armed himself with atomahawk and went outside, saying to the victim "come here, you fucking bitch".6 Hethen struck her twice in the head with the weapon. The blows caused two lacerationsto her head, approximately five and two centimetres in length. It also appears that shewas struck with the tomahawk at the back of the left thigh, where she had a furtherlarge laceration.7[5] The appellant then stood over the victim and began to punch her in the face,causing a fracture to her nose. After grabbing her by her jersey, the appellant appearsto have recovered himself, stopping the assault and apologising for what he had done.8[6] As noted, the victim received two lacerations to the top and back of her headas well as a four centimetre laceration to the back of the left thigh. This wound wassaid to be four centimetres wide, with fatty tissue coming out of the wound.9 Inaddition to a fracture—described as small—to the left side of her nose, the victim alsosuffered from swelling and bruising to her head, forehead and eyebrows. She requiredimmediate medical treatment.3 NZ Police v Piki [2023] NZDC 21428 at [2].4 At [2].5 At [3].6 At [4].7 At [4].8 At [5].9 At [6].The Judge's sentencing decision[7] After setting out the relevant facts, Judge Johnston turned to consider theappropriate starting point. Having noted that Police and the appellant were six monthsapart, and based on the relevant guideline judgments,10 the Judge concluded theoffending fell within band three described by the Court of Appeal in Nuku v R. Hefound three aggravating features established:(a) the use of a tomahawk as his weapon;11(b) an attack to the head of the victim;12 and(c) the relative vulnerability of the victim.13[8] The Judge adopted a starting point of two years and nine months' imprisonment(being the halfway point precisely between the Crown and defence submissions).14[9] He then turned to address personal mitigating and aggravating factors personalto the appellant. The Judge provided discounts in total of 40 per cent representing:15(a) 25 per cent for an early guilty plea;(b) five per cent for Mr Pikirangi's rehabilitative prospects; and(c) an additional 10 per cent for systemic deprivation which he foundcausally linked to the offending, as set out in a s 27 SentencingAct 2002 report.10 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39; and R v Taueki [2005] 3 NZLR 372 (CA).11 At [27].12 At [27].13 At [28].14 At [34].15 At [36]–[37].[10] The Judge declined to grant a discount for remorse, finding:16As far as remorse is concerned, I have considered this very carefully, includingthe letter from you and the s 27 report, however, in my view there should beno further discount for remorse. Receiving the letter on the eve of sentencingis too late, despite what your lawyer has said today about the delay, and isinconsistent with what you said to the pre-sentence report writer. I considerthat to be a more accurate assessment certainly at the time that you wereinterviewed.[11] Turning to the question of an uplift for Mr Pikirangi's previous criminalhistory, the Judge considered that an addition of three months was warranted. Thatconclusion is not challenged on appeal. Rather the focus of the parties' arguments onappeal was how the Judge applied the discounts and uplifts to the starting point. Giventhat, it is convenient to set out in full the Judge's remarks when dealing with theadjusted starting point against the uplift and discounts that he had identified:17[34] As a result, and after considering all of the cases before me, I considerthat a starting point of two years and nine months' imprisonment is warranted.[35] As far as an uplift for your relevant previous history is concerned, Inote the case of R v Orchard that has been referred to by counsel. In any event,here I still consider that an uplift of three months' imprisonment is warrantedfor your relevant previous conviction history, getting to an adjusted startingpoint of three years' imprisonment.[36] Discounts are appropriate. For your guilty plea, 25 per cent.[37] I accept the rehabilitative prospects discount sought of 5 per cent andan additional 10 per cent for the systemic deprivation covered in the s 27report.[38] As far as remorse is concerned, I have considered this very carefully,including the letter from you and the s 27 report, however, in my view thereshould be no further discount for remorse. Receiving the letter on the eve ofsentencing is too late, despite what your lawyer has said today about the delay,and is inconsistent with what you said to the pre-sentence report writer. Iconsider that to be a more accurate assessment certainly at the time that youwere interviewed.[39] Accordingly, the total discount is 40 per cent or 13.2 months, of coursethat coming off the two years and nine months starting point.[40] That gets to an end point of 22.8 months, which I round down in yourfavour to 22 months imprisonment.16 At [38].17 At [34].[41] I am satisfied based on the relevant cases and law that in thesecircumstances a sentence of imprisonment is required, and that the purposesfor which this sentence is being imposed cannot be achieved by any lessrestrictive sentence or combination of other sentences.[42] For the reasons that I have spelt out, you are accordingly sentenced toimprisonment for 22 months. Leave to apply for substitution of sentence isrefused due to the seriousness of your offending and your conviction historyfor violence.Approach on appeal[12] Under s 250 of the Criminal Procedure Act 2011, an appeal against sentencemust only be allowed if the Court is satisfied that, for any reason, there was a materialerror in the sentence imposed and a different sentence should have been imposed.18The focus is on the final sentence reached. Although s 250 does not use the expression"manifestly excessive", it is a principle that is well-established in the Court's approachto determining the extent of the error in sentence appeals.19ConsiderationDid the Judge incorrectly apply the Moses two-stage methodology?[13] In calculating Mr Pikirangi's sentence, Ms Hall submitted that Judge Johnstonsubtracted the total discount for personal mitigating factors from the lower startingpoint of two years and nine months' imprisonment, rather than the final "adjustedstarting point" (after the uplift was accounted for) of three years' imprisonment. Incounsel's submission, this involved a three-step rather than two-step methodologywhich failed to take into account the deduction for personal mitigating factors on theadjusted starting point of three years, or 36 months. Ms Hall helpfully set out herinterpretation of the Judge's approach in table form, which I gratefully adopt:18 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].19 At [32]–[35]; and R v Shipton [2007] 2 NZLR 218 (CA) at [138]–[140].Step/MethodologyMoses v R Judge JohnstonOne Starting Point: 2 years9 months (33 months)+ 3-month uplift =36 monthsStarting Point: 2 years9 months (33 months)Two - 40% (14.4 months)for personal mitigatingfactors = 21.6m- 40% (13.2 months)for personal mitigatingfactors = 19.8mThree N/A + 3-month upliftEnd sentence 21.6 months 22.8 months[14] Ms Hall, building on the submission that there had been an arithmetical errorof approach in the application of Moses to the sentencing exercise, then submitted thatcurrent principle required the Court to correct a mathematical error, even if theresulting sentence is not manifestly excessive.20[15] If one only looks at [34]–[35] of the Judge's sentencing notes, the impressionleft is that the Judge may, indeed, have added the three month uplift for personalaggravating factors to the identified starting point of two years, nine months'imprisonment, before then applying percentage deductions for personal mitigatingfactors. If that were all the Judge had said, I would have had some sympathy for thesuggestion that there was a mathematical error in the Judge's application of Moses.[16] However, when one has regard to [36]–[42] of the judgment, it is clear that theJudge correctly dealt with both personal aggravating and mitigating factors (or in otherwords, uplifts to and discounts from the adjusted starting point) as part of the secondstage of the Moses analysis.[17] I agree with Ms MacPherson that when one examines the underlyingcalculation applied by the Judge, there is no identifiable error. Indeed, in my view theapproach suggested by the appellant is inconsistent with Moses. It would provide theappellant with a discount for personal mitigating factors applied not only to theadjusted starting point, but also to the identified uplift for personal aggravating factors.As counsel for the respondent has noted, recent decisions of the Court of Appeal have20 Relying on B (CA757/2021) v R [2023] NZCA 51 at [59]–[62] and Ferris-Bromley v R [2017]NZCA 115 at [15].confirmed the correct application of Moses to defendants who receive both discountsand uplifts for personal factors.21[18] Accordingly, I dismiss this ground of appeal.Discount for remorse?[19] As noted above at [10], the Judge was not persuaded that any discount forremorse was warranted. Two reasons supported that conclusion:(a) Mr Pikirangi's letter of apology to the victim came at the "11th hour",and on the eve of sentencing. It seems the Judge was not impressed withthe appellant's delay in providing an apology, if he were trulyremorseful.(b) Second, the Judge noted the probation officer's observation in thereport for sentencing that Mr Pikirangi "showed no remorse toward thevictim during the interview".[20] Ms Hall says the Judge was wrong to reject a submission that a further discretediscount for remorse was warranted. The reason for Mr Pikirangi's delay in providinga letter of apology was that he cannot read or write. Counsel was therefore obliged toattend on him in person, receive a dictated apology from her client, and then transcribeit. Ms Hall also pointed to the well known difficulties defence counsel haveexperienced in recent years in obtaining access to their clients and systemic delays thathave arisen.[21] Second, Ms Hall referred to a notebook entry of a police constable whichrecords that in addition to apologising to the victim immediately following the assault,the following day he handed himself in to Police. When the Police officer thankedMr Pikirangi for coming voluntarily to the station, the appellant said he knew he waswanted and it was better than "running away and hiding". These actions, counsel21 Uruamo v R [2023] NZCA 356 at [25]; Gray v R [2020] NZCA 548 at [31].submit, are clear evidence that the appellant took full responsibility for his conductand is evidence of his remorse.[22] Counsel for the respondent accepts that the notebook entry could be taken asevidence of genuine remorse. However, the respondent argues that, given thepre-sentence report writer's views, it was open to the Judge not to provide anyadditional credit for this factor.[23] Having regard to Mr Pikirangi's explanation for the delay in the provision ofhis letter of apology to the victim and the Court, and what were clearly his spontaneousactions both when the assault ended, and in handing himself in to Police the followingday, I am satisfied that a discrete discount for remorse was called for. The pre-sentencereport does not, in my view, provide a satisfactory basis on which to concludeMr Pikirangi has not demonstrated genuine remorse. First, the report isself-contradictory. While it clearly records, in two locations, that Mr Pikirangi"showed no remorse" and "did not express any remorse", in the very first paragraph itrecords:Mr [Pikirangi] fully accepts the descriptions set out in the summary [of facts]and expressed remorse for his actions.[24] Second, as Ms Hall suggests, the report provides no factual or other context onwhich to assess the basis for the report writer's subsequent and contradictoryconclusion that there was no remorse.[25] Third, the report throughout wrongly refers to Mr Pikirangi as "Mr Williams".These mistakes and inconsistencies do not inspire confidence about the reliability ofthe statements on which the respondent's case rests.[26] In written submissions Ms Hall submitted that a discount of five per cent wasappropriate, but at the hearing Ms O'Hagan, who carried this part of the argument,submitted a discount of 10 per cent was warranted.[27] Overall, I consider it appropriate to provide a discount for remorse of eightper cent. Together with the discount for an early plea, that would bring the totaldiscount for those factors to one third of the starting point.[28] While the additional discount may not make a significant difference to theappellant's overall sentence, when viewed as a proportion of the total, I am satisfiedthat a failure to adjust a sentence would render it manifestly excessive.Conclusion and Result[29] Mr Pikirangi's sentence of 22 months' imprisonment is quashed. In its place Iimpose a sentence of 20 months' imprisonment calculated as follows:(a) I adopt the Judge's adjusted starting point of two years and nine months'imprisonment, or 33 months (step one of Moses);(b) I provide discounts for personal mitigating factors of 48 per cent andan uplift for Mr Pikirangi's previous criminal offending of threemonths, or nine per cent (step two of Moses);(c) resulting in a final sentence of 20 months' imprisonment.[30] I am aware that, historically, it has not been uncommon for first instance judgesto identify a starting point, then apply an uplift for personal aggravating factors(invariably as a consequence of a defendant's previous criminal history), beforeapplying a discount for mitigating factors to both the adjusted starting point and theuplift. That approach is no longer correct following Moses. Step two requires asentencing judge to arrive at a "net" position by combining both discounts and uplifts,and to apply the net stage two adjustment to the identified starting point.22Isac JSolicitors:Luke Cunningham Clere, Wellington for Respondent22 While there is no need for any change in sentencing practice in the District Court, a possible sourcefor confusion in the past may have been the tendency to identify starting points and uplifts forprevious offending as fixed time periods, while discounts for personal mitigating factors are oftenexpressed as percentages. It may be clearer to express stage two factors in numerically consistentterms (as a percentage of the starting point, or as an identified numerical discount or uplift, orboth).