BETWEEN TAHI TE WATA NGERU WALDEN Appellant AND THE KING Respondent
[2023] NZHC 3571
•7 December 2023
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2023-443-38
[2023] NZHC 3571
BETWEEN TAHI TE WATA NGERU WALDEN
Appellant
AND
THE KING
Respondent
Hearing: 6 December 2023 Counsel:
J C Hannam for the Appellant H Bullock for the Respondent
Judgment:
7 December 2023
JUDGMENT OF GWYN J
Introduction
[1] Mr Walden appeals against the sentence imposed by Judge Hikaka of two years and four months’ imprisonment, having pleaded guilty to the following charges in the New Plymouth District Court:1
(a)Kidnapping;2
(b)Assault with intent to injure;3 and
(c)Threat to kill.4
1 R v Walden [2023] NZDC 24657.
2 Crimes Act 1961, ss 209(b) and 66. The maximum penalty is 14 years’ imprisonment.
3 Sections 193 and 66. The maximum penalty is three years’ imprisonment.
4 Sections 306A and 66. The maximum penalty is seven years’ imprisonment.
WALDEN v R [2023] NZHC 3571 [7 December 2023]
The offending
[2]The agreed summary of facts on which sentence was passed are as follows.
[3] In summary, on 12 August 2022, Mr Walden and two associates took the victim in a car against his will and assaulted him on the journey. The victim managed to escape.
[4] Mr Walden was 28 at the time, and the victim was a 35-year-old man. Mr Walden did not know the victim, but he was a friend of Mr Walden’s brother who died on 4 August 2022. The victim and Mr Walden’s brother had been using drugs together, and Mr Walden’s brother died from an overdose. The victim had attempted to revive him, but his efforts were unsuccessful. Mr Walden believed that the victim was responsible for his brother’s death.
[5] On 12 August, Mr Walden arrived at the victim’s address with his two associates. Mr Walden’s car was parked across the road, and one of the associates went into the address to ask the victim to come outside for a chat. The victim refused, so the associate walked outside and moments later Mr Walden and the other associate joined him to go back in together. Mr Walden demanded his name, and once the victim’s identity was confirmed, Mr Walden and the two associates looked at each other and nodded as though they had a plan. Mr Walden yelled at the victim, “It was you wasn’t it, you killed Wallis”. The victim replied, “No, no, no, Wallis was my best mate I didn’t kill him.”
[6] Mr Walden and the associate grabbed the victim, dragged him to the door and told him to go to the car. The victim walked with Mr Walden out of fear, but he hesitated about two metres from the car fearing that he would be killed if he got in. He began to throw his weight around, but Mr Walden and the associates gripped him tightly and overpowered him. Mr Walden ran to the car and opened the back door. The victim resisted getting in, and Mr Walden punched him in the head and elbowed him in the face. He then grabbed the victim and threw him into the car. Mr Walden got into the driver’s seat while his associates restrained him. While Mr Walden drove, his associates punched the victim to the head multiple times. One of them placed a balaclava over his head and started punching him in the face with a closed fist.
Mr Walden yelled at the victim, saying he killed his brother and that he could see it in his eyes. Mr Walden told the victim numerous times that he was going to kill him. The victim attempted to jump out of the vehicle as it was travelling 80 kilometres per hour, fearing for his life. The associates continued to punch him in the head.
[7] Mr Walden turned off at a side road, and one of the associates mentioned that they were going to the lake. The car came to an intersection at which point the victim opened the vehicle and launched himself out, rolling for about two metres and then stood up and ran for his life.
[8] Mr Walden and the associates chased him, caught him and began to punch him repeatedly. The victim saw stars and did not remember walking back to the car. Mr Walden and the associates attempted to put him in the back seat of the car, and all three were punching him. He thrashed about and pushed them away and managed to run to a member of the public who was on the phone to the Police. The victim jumped into the bystander’s yard, and the associate chased him and punched him in the head. The bystander yelled that the Police had been called, and Mr Walden and the associates left in the vehicle.
[9] The victim received multiple lumps to his head and jaw, a bruised eye, grazes to his hips and wrists, severely lacerated feet from running on the concrete, a broken cast (the victim had a cast on his leg, having had surgery) and a sore and aching body.
District Court decision
[10] Mr Walden was sentenced in the New Plymouth District Court on 7 November 2023.5 The Judge considered the aggravating features of the offending: the actual and threatened violence, unprovoked gratuitous violence, attacks to the victim’s head, taking the victim from his home by force, that the threats to kill were operative, and that the victim was vulnerable as a result of recovering from a recent surgery. The Judge also noted Mr Walden’s actions since offending, his accepting responsibility and taking steps to address alcohol and drug issues.
5 R v Walden, above n 1.
[11] Taking kidnapping as the lead charge, the Judge imposed a starting point of four years’ imprisonment. Mr Walden had also been on electronically monitored (EM) bail for 13 months and one week (from 22 September 2022). The Judge applied a 20 per cent credit for guilty plea, and credited five months for time spent in custody and on EM bail, as well as five months for positive steps taken (remorse and addressing alcohol issues). The resulting end sentence was two years and four months’ imprisonment.
Submissions
For the appellant
[12] Mr Hannam, for the appellant, submits that the sentence imposed was manifestly excessive because the Judge adopted too high a starting point. Counsel says that the four year starting point overstates the seriousness of the offending, when compared with the other cases considered.
[13] Mr Hannam focused his comparison on Tozer v R6 as the case most similar to this case. In Tozer the offender attacked the victim with a weapon and threatened that he had hired two gunmen to shoot the victim if he made a run for it (although in fact there were no gunmen present). There was no weapon in this case. The offender in Tozer was motivated by jealousy and malice, whereas in this case the appellant was motivated by grief at the death of his brother a week earlier and his (incorrect) belief that the victim had some responsibility for the death. Tozer had a home invasion element in that the offender went into the victim’s home and assaulted him there, before taking him away. In this case, the victim was led out of the house and assaulted in the car. Overall Mr Hannam says Tozer was a more serious case than the present one. The starting point in Tozer was three years and six months’ imprisonment.
[14] In Mr Hannam’s submission the appropriate starting point was in the range of two years and six months’ to three years’ imprisonment. Counsel accepts the reductions to the starting point granted by the District Court Judge were appropriate. Counsel further submits that home detention is appropriate given Mr Walden’s
6 Tozer v R [2010] NZCA 7.
demonstrated commitment to complying with EM bail and the positive steps taken to address drug and alcohol issues.
For the Crown
[15] Ms Bullock, for the Crown, submits that the end sentence is not manifestly excessive, and rather gives effect to the sentencing purposes of denunciation and deterrence, while providing credit for the appellant’s guilty plea, time on EM bail, and rehabilitative prospects.
[16] Ms Bullock disagreed with Mr Hannam’s assessment of the relative seriousness of this case and Tozer v R. Counsel says this case was more serious as it involved three offenders, all of whom inflicted violence, the victim’s vulnerability (leg in a cast) and the three charges to which Mr Walden pleaded guilty. Ms Bullock also notes that the statement of facts in this case records that the appellant did go into the victim’s house and dragged him to the door.
[17] Counsel for the Crown also referred me to a number of other cases. Ms Bullock acknowledges that the offending is less serious than R v Zhang which the District Court Judge was also referred to. In R v Zhang the Judge adopted a starting point of six years’ imprisonment, which was not challenged on appeal.7 In that case the offender was waiting in a parking area, when the victim left a bar and got into her vehicle, and the offender approached with a firearm in hand. The offender was disguised and presented the firearm, instructing the victim to drive. The victim drove out of fear, while the offender rifled in her handbag attempting to find cash, and at one stage, held the firearm against the side of her head. The Police pursued the vehicle, and the offender threatened and struck the victim on the back of the head with the butt of the firearm. The Police ultimately managed to force the vehicle to stop using a moving block manoeuvre, and the offender fled. The Crown submits that while this case was more serious due to the use of a weapon, that factor is somewhat balanced given the presence of three offenders in the present case.
7 R v Zhang CA56/05, 24 May 2005.
[18] Having regard to the authorities, and the circumstances of the offending, the Crown submits a starting point of four years’ imprisonment was within range and cannot be characterised as manifestly excessive.
Approach to appeal
[19] Under s 250 of the Criminal Procedure Act 2011 (CPA) the Court must allow the appeal if it is satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[20] The senior courts have interpreted s 250(2) of the CPA to require that the Court must be satisfied that the sentence is manifestly excessive (or inadequate).8 The focus is to be on whether the end sentence imposed by the Judge was within range, not on whether the process adopted to reach that end sentence was correct.9
Analysis
[21] The primary issue on appeal is whether the starting point adopted by the Judge of four years’ imprisonment was within range or whether it was too high, resulting in a manifestly excessive end sentence.
[22] There is no guideline judgment for sentencing on kidnapping charges. Counsel for the appellant and the Crown referred me to R v Paea in which Whata J observed that kidnapping involving high levels of intimidation, multiple offenders, physical violence, or other serious offending will often attract starting points in the range of
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27], [33] and [35].
9 Ripia v R [2011] NZCA 101 at [15].
two-and-a half to three-and-a-half years.10 Justice Whata reviewed the authorities of
R v Banfield,11 R v Hunter,12 R v Piper13 and Tozer v R14 as follows:15
[33] In Banfield a two and half year starting point was adopted for an aggravated robbery and kidnapping.
[34] In Piper four defendants went to the victim’s home, kidnapped her for three to four hours and demanded cash from her which they obtained. A starting point of three years was adopted in that case.
[35] In Hunter a starting point of three and half years was adopted for a defendant who, with another offender, threatened the victim with violence and had previously blackmailed the same victim.
[36] In Tozer, the offender attacked the victim with a weapon and threatened him that he had hired two gunmen to shoot him if he made a run for it. A starting point of three and half years was adopted and endorsed by the Court of Appeal.
[23] Justice Whata observed that there were instances of higher and lower starting points than the range he identifies, citing the case of R v Rangitaawa in which a starting point of four and a half years was imposed.16 The offender in that case was one of three offenders who pleaded guilty to blackmail and kidnapping charges. The three went to a car yard to recover a debt thought to be owed by the owner to a Mr Liu. The owner and another were detained in the office for three hours and forced to sign documents stating he owed $50,000 to a Mr Liu and $25,000 to the offender, offering a car as security. The offender had organised a group of 15 people to meet in a car park across the road. The offender’s two associates wore gang regalia, and during the kidnapping, the offender threatened to take all the vehicles from the yard until the debt was paid. Multiple vehicles were stolen by the persons waiting across the road. The Judge considered that the aggravating factors of threatened violence, premeditation and the psychological trauma caused to the victims justified a starting point of four years and six months’ imprisonment.
10 R v Paea [2015] NZHC 1705 at [31].
11 R v Banfield CA22/05, 27 July 2005.
12 R v Hunter HC Auckland CRI-2008-092-011429, 25 June 2010.
13 R v Piper [2012] NZCA 104.
14 Tozer v R, above n 6.
15 R v Paea, above n 10, at [33]–[36].
16 At [37]; and R v Rangitaawa HC Christchurch CRI-2004-009-14066, 11 August 2005.
[24] These cases demonstrate the intensely fact-specific nature of sentencing decisions in this area, in the absence of a guideline judgment.
[25] There is no doubt this case was serious offending, involving premeditation, carried out by three offenders, actual violence (unprovoked and gratuitous), threats of violence and harm to a vulnerable victim.
[26] However, looked at in the round, the case is clearly not at the same level of seriousness as Rangitaawa17 (which involved a weapon and facts attracting serious charge of aggravated burglary) or R v Zhang (which involved the use of a weapon), I agree that R v Tozer is the most comparable case, and I accept that this case is somewhat less serious than Tozer.
[27] Does that conclusion mean the sentence imposed by the District Court was manifestly excessive? As the Court of Appeal said in Tutakangahau, the concept of “manifestly excessive” is:18
… simply a means of examining the significance of the error to decide whether a different sentence should be imposed. The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of a prior error which often will involve questions such as whether the starting point is too high given the facts, or of incorrect discounts as to parity with co- offenders.
[28] On the particular facts of this case, and having regard to the authorities referred to above, I conclude that the starting point imposed by Judge Hikaka was too high. There was an error in the sentence imposed (CPA, s 250(1)) and as a result the end sentence was manifestly excessive.
[29] I allow the appeal and substitute a starting point of three and a half years’ imprisonment. Counsel for the appellant takes no issue with the Judge’s consideration of mitigating personal circumstances, the guilty plea, time spent in custody and on EM bail, and the credits so applied. There is no basis to interfere with these matters.
[30]Those discounts were:
17 R v Rangitaawa, above n 16.
18 Tutakangahau v R, above n 8, at [32].
(a)20 per cent for guilty plea (8.4 months);
(b)five months’ discount for time remanded in custody and on EM bail; and
(c)five months’ discount for personal mitigating factors.
[31] That results in an end sentence of 24 months’ (rounded to the nearest whole month) or two years’ imprisonment.
Eligibility for home detention
[32] Mr Walden is therefore eligible under s 15A of the Sentencing Act 2002 to apply for home detention and that is the outcome Mr Hannam seeks if the Court arrives at a sentence of 24 months’ imprisonment or less.
[33] The Crown opposes home detention on the grounds that the sentencing purposes of deterrence and denunciation19 can only be satisfied in this case by a sentence of imprisonment.
[34] The Provision of Advice to Courts (PAC) report of 2 November 2023, prepared by the Department of Corrections before sentencing in the District Court, recommends home detention, noting that Mr Walden has engaged with Tu Tama Wahine for counselling service and with assistance for drug and alcohol issues. The proposed address is Mr Walden’s father’s address, where he was previously on EM bail. Ms Bullock acknowledges that the address is suitable and that Mr Walden did not breach his EM bail in the 13 months prior to sentencing.
Result
[35]The appeal is allowed.
[36] The sentence of two years and four months’ imprisonment is substituted with a sentence of two years’ imprisonment, to be served by way of 12 months’ home
19 Sentencing Act 2002, s 7.
detention at the address and on the conditions set out in the PAC report of 2 November 2023.
Gwyn J
Solicitors:
Crown Solicitor, New Plymouth
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