Allen v The King
[2024] NZHC 1972
•17 July 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-93
[2024] NZHC 1972
BETWEEN TREIK RAKENA ALLEN
Appellant
AND
THE KING
Respondent
Hearing: 11 July 2024 Appearances:
D J Matthews for Appellant B W D Alexander for Crown
Judgment:
17 July 2024
Reissued:
15 August 2024
JUDGMENT OF EATON J
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
ALLEN v R [2024] NZHC 1972 [17 July 2024]
Introduction
[1] Mr Treik Allen was sentenced on 11 January 2024 to five years five months’ imprisonment on one representative charge of wounding with intent to cause grievous bodily harm, having pleaded guilty during a judge-alone trial.1 Mr Allen appeals the sentence. He says he should have received credit for his personal background and the impact of parental incarceration on his daughter. He seeks to rely on affidavits filed in this Court.
The offending
[2] At midnight on 12 June 2022, Mr Allen was at a bus stop with a woman. The victims and their friends, planning to go into town, walked down the street from the first victim’s nearby flat and started speaking with Mr Allen and the woman he was with.
[3] Following an initial friendly conversation, Mr Allen’s attitude changed. He presented a knife and told them to back off. He poked the tip of the knife into the back of the second victim and said he was going to “shank” him.
[4] The first victim pulled the second victim away. Mr Allen said, “what’s up G, I’ll fuck you up”, and moved towards the first victim in a stabbing motion. The first victim picked up a bottle of Jack Daniels and told Mr Allen he would put down the bottle if he put down the knife. They did so, but when the first victim approached Mr Allen to shake his hand, Mr Allen punched him in the face. The first victim reactively punched Mr Allen and knocked him to the ground.
[5] Three or four of Mr Allen’s friends arrived and got involved in the fight. At some point, Mr Allen picked the knife up off the ground and joined in where the first victim and a third victim were assaulted. The third victim was confronted by Mr Allen and another man wearing a black hoodie, both of whom were holding a knife at one stage. When the first and third victims managed to separate themselves and get to safety, they realised they had each been stabbed. The third victim had been stabbed in
1 R v Allen [2024] NZDC 385; and Crimes Act 1961, s 188(1); maximum penalty 14 years’ imprisonment.
the left armpit area, which penetrated muscles and required surgery. The first victim had been stabbed in the buttock and required six stitches.
[6] Mr Allen denied involvement and claimed he was not at the bus stop that night, rather he was asleep at one of his friend’s flats next to the first victim’s flat. Mr Allen pleaded guilty on the second day of the trial, but maintained in the pre-sentence report that he was not involved.
District Court decision
[7] Judge Kellar adopted a starting point of six years six months’ imprisonment based on comparable cases and the following aggravating factors:2
(a)the extent of the violence, with the presentation of the knife described by the Judge as a “drastic overreaction”, and that it was Mr Allen and his friends who initiated the violence;
(b)an element of premeditation demonstrated by Mr Allen carrying and presenting the knife, and using it once he had a “support team”;
(c)seriousness of the injuries;
(d)use of a weapon, the knife being “not of insignificant size” and “capable of inflicting extremely serious injury”; and
(e)the victims were outnumbered by the multiple attackers.
[8] The Judge acknowledged, but did not impose an uplift for, Mr Allen’s relevant criminal history, his “steady pattern” of non-compliance and four convictions for breach of community-based sentence orders, and that the offending occurred whilst subject to a sentence of community work. The Judge considered Mr Allen’s criminal history was reasonably limited, he was assessed as at low risk of re-offending, and he
2 R v Fenton [2020] NZHC 2044; R v Cameron [2016] NZHC 2604; Lewis v R [2015] NZCA 444; R v Wereta [2015] NZHC 2683; R v Mohammed [2007] NZCA 170; R v Konui [2008] NZCA 401; and Shen v R [2017] NZCA 103.
had completed a short rehabilitative programme and a tikanga programme while subject to his latest previous sentence.
[9] The Judge found Mr Allen had expressed no remorse due to his continued denial of involvement in the offending. The Judge agreed with Mr Allen’s grandmother’s account that the offending was due to alcohol consumption despite Mr Allen stating he had no issues to address in that respect.
[10] The Judge considered Mr Allan’s personal circumstances, observing that Mr Allen had a strict upbringing but remained close to his family, is a loving father to his daughter whom he shares joint custody of and has a good employment history with positive intentions for future employment prospects.
[11] The Judge ultimately adopted a 10 per cent discount for Mr Allen’s guilty plea entered partway through trial after the key evidence had been given. As well, the Judge allowed a five-month discount for time spent on electronically monitored bail, resulting in an end sentence of five years five months’ imprisonment.
Leave to appeal out of time
[12] The appellant was sentenced on 11 January 2024. The notice of appeal was filed on 10 April 2024. This appeal is out of time.
[13] In an affidavit filed on appeal, the appellant explains that he was unaware of any potential grounds of appeal until well after sentencing and following conversations with other prisoners. In contacting his new lawyer on appeal, Mr Matthews, there were further delays in obtaining Mr Allen’s file and providing advice.
[14] The Crown does not oppose leave to appeal out of time being granted and there is no prejudice to either party. Accordingly, I grant leave to the appellant to appeal out of time.
The appeal
Appellant submissions
[15] The appellant does not contest the starting point or the level of credits allowed by the Judge. Mr Matthews submits, with reliance on two affidavits filed on appeal, that the appellant should be allowed further credits, namely, a 10 per cent discount for the appellant’s personal background and 10 per cent for the impact of his incarceration on his daughter.
[16] In support of the credits sought, Mr Matthews seeks leave to adduce the two affidavits as fresh evidence: (1) an affidavit from the appellant; and (2) an affidavit from the appellant’s former partner and mother of his child. Mr Matthews submits both are directly relevant to the appeal and supplement information that was before the Judge at sentencing, and further, admitting the material is not prejudicial to any party.
[17] Mr Allen, in his affidavit, detailed his upbringing. This includes his step-father’s terms of imprisonment and gang affiliation, domestic violence between his mother and step-father, and the normalisation of breaking the law which Mr Allen perceived as “cool” as a teenager. Mr Allen describes his biological father as a “heavy drug addict” who he saw every few years. He states his mother was violent towards him, and that she drank heavily. His grandfather, who Mr Allen sometimes stayed with, was also a heavy drinker and would beat him. Mr Allen says he left high school at 15 to work full time to financially support his family. At 17, he failed a drug test and lost his contract to play rugby in Australia.
[18] In the former partner’s affidavit, she explains the negative impact of Mr Allen’s incarceration on their seven-year-old daughter. The former partner describes Mr Allen as having “always played a very active role in [our daughter’s] life”, and their daughter misses him being around. As part of the joint custody arrangement, Mr Allen would have his daughter every weekend but now she visits him almost every week in prison. The former partner arranged counselling for their daughter to help with her difficulties in relation to Mr Allen’s imprisonment.
Respondent submissions
[19] The Crown opposes the application to adduce evidence and the appeal. Mr Alexander submits the appellant’s affidavit evidence is not credible nor fresh, having regard to its self-reporting and lack of supporting material from family members, the risk of “information sharing” between prisoners to try secure discounts, and that the matters were not reported to the pre-sentence report writer.
[20] Mr Alexander similarly submits the former partner’s affidavit should not be admitted because it does not impact the sentence as, at most, a five per cent discount may have been appropriate.
[21] In submitting the end sentence is not manifestly excessive, Mr Alexander contends an uplift of 10 to 15 per cent would have been appropriate for the appellant’s previous convictions and that he was subject to bail and sentence at the time of the offending. Further, he submits no discount for the guilty plea would have been justified due to the reduction in charges and the lateness of the plea, it having been entered during trial after witnesses had already been called. Therefore, the end sentence was within the available range.
Legal principles
Leave to adduce evidence
[22] The principles for adducing fresh evidence were set out by the Court of Appeal in Mark v R:3
… Thus, if the fresh evidence is not credible it should not be admitted. If it is credible, an assessment needs to be made as to whether or not it could have been presented to the sentencing Court with reasonable diligence. If the evidence is both credible and fresh it should be admitted unless the appellate court is satisfied it would have no effect on the sentence. If the evidence is credible but not fresh, the appellate court should assess its strength and its potential impact on the sentence. If the appellate court considers that the sentence could be manifestly excessive if the evidence is excluded, then it should be admitted notwithstanding that it is not fresh.
(footnotes omitted)
3 Mark v R [2019] NZCA 121 at [16].
Appeal principles
[23] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence will be successful only if the appeal Court is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.4 A court will not intervene if the ultimate sentence imposed is within the available range and is one that can properly be justified on the application of relevant sentencing principles.5
[24] The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached, or its constituent elements.6 As articulated in R v Peters:7
As this Court has indicated on many occasions, the issue whether a sentence is manifestly excessive or manifestly inadequate or inappropriate must be examined in terms of the sentence actually passed, rather than the precise process by which it is reached. Thus, if a sentence might be the product of a starting point which is itself manifestly excessive but it is in the result ameliorated by allowances made for mitigating factors so as ultimately to be brought to a point of acceptability, this Court will be disinclined to intervene through concern over any particular component.
Analysis
Should the two affidavits be admitted on appeal?
[25]I have resolved that neither affidavit is admissible on the appeal.
[26] I accept that, generally speaking, the affidavits are credible. That is because in large part they do no more than amplify the material before the Judge in the form of the presentence report and supporting letters.
4 Criminal Procedure Act 2011, s 250(2) and (3).
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Ripia v R [2011] NZCA 101 at [15].
6 Islam v R [2020] NZCA 140 at [32]; and Bowring v Police [2021] NZCA 325 at [12].
7 R v Peters CA12/03, 14 May 2003 at [13], and Islam v R [2020] NZCA 140 at [32]; and Bowring v Police [2021] NZCA 325 at [12].
[27] Mr Matthews responsibly acknowledges that neither affidavit is fresh. The material sought to be admitted on appeal could, with reasonable diligence, have been put before the Judge.
[28] I therefore consider the strength of the material and whether, if this material had been before the Judge, it could have impacted the end sentence and whether, if not admitted, could result in a manifestly excessive sentence. For three reasons, I am satisfied the appellant’s affidavit should not be admitted.
[29] First, the evidence provided by the appellant in his affidavit is largely self-reported. While this is not fatal to a discount, when other family members are available to report as to an offender's background, corroborated evidence of trauma or deprivation ought to be available as opposed to self-reporting. At sentencing, Mr Allen relied on letters of support from his step-father, grandmother and aunt, none of whom have filed affidavits on the appeal. Further, the Judge spoke directly with Mr Allen’s grandmother.
[30] Secondly, the material before the Judge addressed the issue of the appellant’s personal history. Section 27 factors were not overlooked at sentencing. Former counsel’s written sentencing submissions referred to a s 27 report that counsel had understood to have been prepared. Mr Matthews is not clear what counsel was referring to. At Mr Allen’s 2019 sentencing for firearm offending, no reference was made to a s 27 report. Nevertheless, the reference in the written material and that Mr Allen was appearing before a very experienced Judge satisfies me that s 27 considerations were not ignored.
[31] The pre-sentence report described Mr Allen’s report that he was subject to “physical punishment” as a child. He did not provide any detail of that abuse, nor did he raise the other matters set out in his affidavit. His aunt reported that Mr Allen “spent many of his younger years in my family home” and described the appellant as always a pleasure to spend time with and as someone who always showed kindness to his siblings and cousins. His grandmother described him as a loving father, as well intentioned and respectful. Mr Allan told the report writer he was actively involved in sports in the community, that he was in employment and had always been
work-orientated. Mr Allen’s step-father provided a letter of support at sentencing. In it, his step-father referred to his own sentences of imprisonment, “violence in the house hold”, and that he was not a positive father figure for Mr Allen.
[32] It was that material that led the Judge to observe that Mr Allen “had a strict upbringing where you would receive physical punishment when you misbehaved”. Having summarised the supporting letters, the Judge concluded “[y]ou are, in many respects, a fine young man who is well-regarded by his family”.8
[33] I agree with Mr Alexander that the appellant’s affidavit is no more than an extension of what was before the Judge. When balanced against the material before the Judge, I am not satisfied the appellant’s personal history identifies deprivation or trauma that establishes any causal connection to an unprovoked knife attack on strangers warranting a discrete deduction in the sentence.
[34] Thirdly, I agree with Mr Alexander that the Judge allowed a very generous discount of 10 per cent for Mr Allan’s belated guilty plea. The appellant pleaded guilty during trial, after four key witnesses had given evidence. The case against the appellant was reasonably strong and his charges of possession of a knife, assault with a weapon and common assault were subsumed into the one representative charge of wounding with intent to cause grievous bodily harm. It was open to the Judge to refuse to allow any discount for the guilty plea.
[35] Similarly, it was very much open to the Judge to impose a modest uplift to reflect the appellant’s past convictions and that he offended while subject to both bail and sentence. The appellant has 16 past convictions, from 2016 (at the age of 18) to the time of this offending in June 2022 (at the age of 24). This includes a conviction for injuring with intent to injure in June 2017 (to which the sentence of home detention imposed the appellant breached), using a firearm to resist arrest in 2019, and various wilful damage convictions. The current offending similarly included a weapon and caused serious injury to others. The Judge did not impose an uplift to reflect these personal factors.
8 R v Allen, above n 1, at [23].
[36] I am therefore not satisfied that declining to admit the appellant’s affidavit would give rise to a manifestly excessive sentence. The application to admit Mr Allan’s affidavit must therefore be declined.
[37] The former partner’s affidavit is credible but not fresh. Again, I do not consider that a manifestly excessive sentence will result if the affidavit is not admitted on appeal.
[38] The factors to consider when assessing whether a discount is appropriate to reflect parental separation include the importance of children growing up in a familial environment,9 absence of remorse or lack of rehabilitative steps taken,10 whether the defendant is the primary caregiver,11 the nature and seriousness of the offending,12 the loss of a supportive presence in the family home,13 and the strength of the bond with the child and the impact imprisonment may have.14
[39] Mr Allen was actively involved in his daughter’s life who lived with her mother and was in the appellant’s care only on weekends, he lacks any remorse for his offending and maintains he was not involved despite his guilty plea, and the offending was serious. Further, his daughter is still able to maintain contact with him, including weekly in-person visits at the prison. This is not a case where the offender is not able to have any contact at all with his child.
[40] In Ah Tong v R, where a 10 per cent discount was afforded for the impact of parental incarceration, the child’s mother was already imprisoned, the appellant was the child’s sole caregiver, and the sentence imposed created a ‘forced foster parent arrangement that had significant implications”.15 I consider the impact on the appellant’s child here is considerably less, particularly as she remains in the fulltime care of her mother.
9 Philip v R [2022] NZSC 149, at [56].
10 At [56].
11 T v R [2023] NZCA 221 at [25(a)].
12 At [25(b)].
13 At [25](b)].
14 Johnson v Police [2023] NZHC 3748 at [22].
15 Ah Tong v R [2024] NZCA 144 at [14]-[15].
[41] It would have been open to the Judge to allow a modest deduction of around five percent in recognition of the impact of parental separation, but this was not a matter the Judge overlooked. The Judge acknowledged that Mr Allen plays “an active part” in her upbringing and “that a term of imprisonment impacts not just you but your child and the rest of your family”.16 The Judge did not err in not allowing a deduction.
[42]I decline the application to adduce further affidavit of the former partner.
[43] I am satisfied the end sentence of five years and five months’ imprisonment was not manifestly excessive.
Result
[44] The application for leave to appeal out of time is granted. The application to adduce fresh evidence declined. The appeal is dismissed.
...................................................
Eaton J
Solicitors:
Crown Solicitors, Christchurch
Counsel:
D J Matthews, Barrister, Christchurch
16 R v Allen, above n 1, at [21] and [23].
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