WIKI v R [2022] NZCA 360

WIKI v R [2022] NZCA 360 [5 August 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA154/2022[2022] NZCA 360BETWEEN WIKITORIA MARIA WIKIAppellantAND THE QUEENRespondentHearing: 20 July 2022Court: Courtney, Thomas and Peters JJCounsel: C G Farquhar for AppellantMRL Davie for RespondentJudgment: 5 August 2022 at 12.30 pmJUDGMENT OF THE COURTA The appeal against sentence is allowed.B The sentence of two years and three months' imprisonment imposed in theDistrict Court on the charge of wounding with intent to injure is set aside.A sentence of one year and seven months' imprisonment is substituted.C The concurrent sentence of six months' imprisonment imposed in theDistrict Court on the charge of intentional damage is set aside. Aconcurrent sentence of three months' imprisonment is substituted.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)Introduction[1] On 12 November 2021, Wikitoria Wiki appeared for sentencing beforeJudge Orchard in the District Court at Kaikohe on one charge, as a party, of woundingwith intent to injure and one charge of causing intentional damage to property.1 In thecircumstances to which we refer below, the Judge sentenced the appellant to two yearsand three months' imprisonment.[2] On appeal to the High Court, Brewer J determined the Judge's sentence wasnot manifestly excessive and dismissed the appeal.2 Ms Wiki was granted leave tobring a second appeal.3Background[3] We have taken what follows from the summary of facts to which Ms Wikipleaded guilty. It is important to note that what follows may be inaccurate in respectof the actions of Ms Wiki's co-offender, Mr Awarau, as there was a disputed factshearing in respect of his offending.[4] Early in January 2019, Ms Wiki and the complainant, the appellant's formerpartner, had an argument at the complainant's property. Ms Wiki left the property butreturned some 15 minutes later with Mr Awarau and another co-offender. Mr Awarauis Ms Wiki's new partner. The other co-offender, an associate, played only a minorpart in the events which followed.[5] Armed with what was described as an axe or wood splitter, with a small blade,Ms Wiki proceeded to break every window and to dent several panels of thecomplainant's vehicle. This led to the intentional damage charge.[6] The complainant came out of his house and picked up a metal bar about a footlong and two inches thick. A scuffle ensued between the complainant and Mr Awarau.During this scuffle the complainant was knocked to the ground. The summary of facts1 R v Awarau [2021] NZDC 22319 [District Court judgment].2 Wiki v R [2022] NZHC 430 [High Court judgment].3 Wiki v R [2022] NZCA 319.records that Mr Awarau stomped on the complainant's head, chest and stomach severaltimes, and also struck him on the head with the metal bar to which we have referred.Ms Wiki then approached and gave the axe to Mr Awarau who struck the complainanton the arm, causing a cut through to the bone which was approximately eightcentimetres long. Ms Wiki herself then struck the complainant in his lower leg withthe blunt end of the axe, causing bruising. This led to the wounding charge.[7] The complainant spent a night in hospital as a result of these assaults.He sustained the wound to which we have referred, three fractured ribs and bruisingto his right hand and both legs.District Court[8] The District Court Judge sentenced Ms Wiki and Mr Awarau together.Mr Awarau faced only the wounding charge.[9] Although the Judge acknowledged that the Crown had accepted Ms Wiki'spleas on the basis she was not the person who had wounded the complainant, she wenton to say that the disputed facts hearing had left her unsure as to which of the two hadwounded the complainant, and said that she would sentence both the appellant andMr Awarau accordingly.4 As Brewer J said in his judgment on appeal, this was anerror insofar as concerns Ms Wiki, as she was required to be sentenced on the summaryof facts.5[10] Aside from this, there was some confusion as to the starting point that theDistrict Court Judge adopted for Ms Wiki. Early in the sentencing, the Judge said thatshe considered a starting point of three years and six months' imprisonmentappropriate for both Mr Awarau and Ms Wiki.6 A little later, however, the Judge saidthat she adopted a starting point of three years' imprisonment for Ms Wiki, and indeedit was from a starting point of three years that the Judge calculated Ms Wiki's endsentence.74 District Court judgment, above n 1, at [12].5 High Court judgment, above n 2, at [10]–[11].6 District Court judgment, above n 1, at [12].7 At [25].[11] As to discounts, the Judge allowed 10 per cent to acknowledge Ms Wiki'sefforts to rehabilitate and that her offending was in part a reflection of domestic abuseshe had suffered at the hands of the complainant; five per cent (equating toapproximately two months) for time spent on restrictive bail conditions; and 10 percent for the guilty pleas.8 The Judge declined to give any discount for personal andcultural factors under s 27 of the Sentencing Act 2002.9[12] The discounts resulted in an end sentence on the wounding charge of two yearsand three months' imprisonment. The Judge imposed a concurrent sentence of sixmonths' imprisonment on the intentional damage charge.10High Court[13] Ms Wiki brought an appeal on the basis that the District Court Judge'sdiscounts for mitigating factors were insufficient, specifically that there should havebeen a discount for personal and cultural factors. There was no challenge to thestarting point — both counsel assumed that, notwithstanding the District Court Judge'sinitial reference to a starting point of three years and six months, she had ultimatelysentenced on the basis of a starting point of three years.[14] Ms Wiki asserted that discounts totalling 40 per cent should have been allowed,together with five months for time spent on restrictive bail conditions. Had discountsat this level been allowed, the end sentence would have been one year and five months'imprisonment, in which case a sentence of home detention was sought.[15] Brewer J concluded that Ms Wiki should receive a 15 per cent discount forrehabilitation efforts, a five per cent discount for other personal circumstances, a fiveper cent discount for time spent on restrictive bail, and a 15 per cent discount for herguilty pleas, totalling discounts of 40 per cent.11 However, the Judge proceeded onthe basis the District Court Judge had meant to adopt a starting point for the appellant8 At [26]–[27]. The District Court Judge did not explicitly state that she awarded Ms Wiki adiscount for her guilty plea, however, as noted by the High Court Judge at [30] of the High Courtjudgment, above n 2, the end sentence reflects that a 10 per cent discount was given for Ms Wiki'sguilty plea.9 At [25]–[26].10 At [29].11 High Court judgment, above n 2, at [76].of three years and six months' imprisonment, and had "misspoke" when she referredto three years.12 In addition, Brewer J held that the intentional damage charge wouldhave warranted a discrete uplift of six months, which increased the notional startingpoint to four years.13 Even with the greater discounts, the higher starting point resultedin a notional end sentence of two years and five months' imprisonment. Therefore,Brewer J determined the District Court Judge's sentence of two years and threemonths' imprisonment was not manifestly excessive.Present appeal[16] Ms Farquhar, for Ms Wiki, submits that the High Court Judge erred in treatingthe starting point in the District Court as having been three years and six months,which neither party contended for, and by imposing an uplift for the intentionaldamage charge, which the Crown did not seek. As to the latter, she says that the Judgedid not indicate to counsel that he was considering an uplift and, as a result, there wasa breach of natural justice. As a result, the end sentence is manifestly excessive.[17] We accept that the Judge made an error in relation to the starting point. TheDistrict Court Judge clearly calculated the end sentence from a three year startingpoint. Ms Farquhar argued that the maximum starting point available, for all of theappellant's offending, is three years' imprisonment. With the discounts as allowed bythe High Court (subject possibly to an increase in the discount for time on restrictivebail conditions) the end sentence reduces very considerably.[18] Although the Crown opposed the appeal, it is fair to say that Crown counsel,Mr Davie, accepted that the end sentence was very much at the upper end of theavailable range.[19] Having considered the submissions made as to how matters proceeded in theDistrict and High Courts, we accept that a number of issues are at large. Given that,we have considered the matter afresh and have concluded the end sentence ismanifestly excessive and that a lesser sentence must be imposed.12 At [27].13 At [52].[20] Ms Farquhar submits that the starting point for the appellant's woundingoffending should not exceed two years and six months' imprisonment, possibly withsome modest uplift for the intentional damage offending.[21] The guideline judgment for wounding with intent to injure is this Court'sjudgment in Nuku v R.14 The issue is where to place the appellant's offending in termsof the three sentencing bands identified in that case. In the first instance this is to bedone by identifying the extent to which the Taueki factors are present in a given case.15In addition, as Ms Farquhar submits, it is necessary to take into account that theappellant was for sentence as a party. In a case involving multiple offenders, theculpability of each offender must be assessed.16[22] Ms Wiki's involvement comes down to this. She returned to the complainant'sproperty with reinforcements, in the form of Mr Awarau and another co-offender, andshe took an inherently dangerous weapon with her. Even if she intended only to usethat weapon to inflict damage to property, or possibly even to protect herself, it wouldor should have occurred to her that a physical altercation might well ensue and thatthe weapon might be used. That is what happened. Ms Wiki handed the weapon toMr Awarau, even though he seemingly had the better of the complainant at the time.And then Ms Wiki herself saw fit to hit the complainant, although admittedly with theblunt end of the axe.[23] The aggravating Taueki factors Ms Farquhar identified, and which she submitswere present to a moderate degree, were: the use of a weapon; premeditation; entryonto the complainant's property, even if not home invasion; and multiple attackers.17[24] Crown counsel proposed two more aggravating Taueki factors that the DistrictCourt Judge had identified: extreme violence and serious harm to the complainant.Any violent offending is serious of course but we do not think these two particularfeatures were present in this instance, or at least not in the sense of Taueki.14 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.15 R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372.16 At [42].17 At [31].[25] Both Ms Farquhar and Crown counsel referred us to comparable authorities,all helpful even if none was entirely on all fours with this case. These authoritiescomprise cases in which a principal offender wounded the complainant, oftenseriously, with a knife, bottle or other weapon, with starting points ranging from oneyear and six months' to three years and six months' imprisonment.18[26] By way of example, in Sheppard v R the appellant had stabbed the complainantin the neck with a screwdriver, inflicting a small puncture wound.19 This Courtreduced the starting point from three years to two years and six months' imprisonment.[27] In Soud v R, the appellant smashed a glass over the first complainant's headand threw the remnants of the glass at the second complainant, causing glass toricochet into a third complainant.20 All three complainants received permanentscarring. On appeal, this Court reduced the starting point from three years and sixmonths' imprisonment to three years.[28] In Williams v Police, the appellant hit the complainant in the head with a bottle,causing significant wounds to the complainant's head and neck, proximate toarteries.21 The appellant only desisted when subdued by pepper spray and a taser.This offending attracted a starting point of two years and six months' imprisonment.[29] In Shihab v Police, to which Crown counsel referred us, the complainantrequired surgery after being stabbed in the abdomen and punched in the head. Thecomplainant lost two litres of blood, spent five days in hospital, sustained damage tohis liver and became depressed.22 On appeal to the High Court, the starting point wasreduced from four years to three years and six months' imprisonment.[30] We consider Ms Wiki's wounding offending was on the cusp of bands two andthree of Nuku, meaning a starting point of two years or more was required. We have18 Sadiq v R [2012] NZCA 396; Sheppard v R [2013] NZCA 639; Frelih v Police [2014] NZHC2217; Poi v R [2015] NZCA 300; Hetherington v Police [2015] NZHC 1829; Williams v Police[2017] NZHC 1299; R v Te Huia [2018] NZHC 3039; Soud v R [2020] NZCA 149; Shihab v Police[2018] NZHC 2243; and Williams v R [2021] NZHC 1960.19 Sheppard v R, above n 18.20 Soud v R, above n 18.21 Williams v Police, above n 18.22 Shihab v R, above n 18.settled on two years and nine months' imprisonment as the appropriate starting point.Ms Wiki may not have inflicted the wound, but she carried and supplied the weaponthat did.[31] A modest uplift, say three months, is required for the intentional damageoffending. This brings us to an adjusted starting point of no more than three years'imprisonment.[32] Ms Wiki's only challenge to the discounts allowed in the High Court is that fortime spent on restrictive bail conditions. The five per cent previously allowedrepresents approximately two months' imprisonment on a three-year starting point.The appellant was on bail simpliciter from 5 January 2019 until her sentencing on12 November 2021, so approximately two years and 10 months. Until 2021, theappellant was on a night-time curfew from 7 pm to 7 am. In 2021, this curfew periodwas reduced to 10 pm to 6 am. Ms Farquhar advises, without comment from theCrown, that Ms Wiki did not breach the curfew condition.[33] Ms Farquhar submits that a greater discount is required to reflect these bailconditions. She referred us to Kreegher v R, in which this Court granted a six-monthdiscount to a defendant who was subject to a 12-hour curfew for three years, withoutbreach.23 In addition, for reasons we need not address, the effect of the 12-hour curfewwas to separate Ms Wiki from her youngest child. This was regrettable, for bothmother and child. Ms Farquhar submits that we should grant a five-month reductionin place of the five per cent.[34] We consider that a four-month discount would adequately reflect the bailconditions. A starting point of three years' imprisonment, less the discounts other thanfor the bail conditions (35 per cent) would bring the sentence to one year and11 months. A further reduction of four months to reflect the effect of the bailconditions brings the end sentence to one year and seven months' imprisonment.[35] In the usual course of events, this would lead to consideration of a sentence ofhome detention. However, Ms Farquhar informs us that Ms Wiki would prefer a short-23 Kreegher v R [2021] NZCA 22.term sentence of imprisonment, as she has already served more than eight months'imprisonment.Result[36] The appeal against sentence is allowed.[37] The sentence of two years and three months' imprisonment imposed in theDistrict Court on the charge of wounding with intent to injure is set aside. A sentenceof one year and seven months' imprisonment is substituted.[38] The concurrent sentence of six months' imprisonment imposed in the DistrictCourt on the charge of intentional damage is set aside. A concurrent sentence of threemonths' imprisonment is substituted.Solicitors:Crown Law Office, Wellington for Respondent