Dixon aka Rikihana v The Queen

[2019] NZHC 3294

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2019-463-0099

[2019] NZHC 3294

BETWEEN

NIGEL CALEB DIXON (AKA PUKATAWHERO WIKIRIWHI RIKIHANA)

Appellant

AND

THE QUEEN

Respondent

Hearing:

12 December 2019

Appearances:

A S Burns for Appellant

G Banuelos for Respondent

Judgment:

12 December 2019

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 12 December 2019 at 5 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors:Gordon Pilditch, Crown Solicitor, Rotorua Phillips & Co Law, Rotorua

DIXON v R [2019] NZHC 3294 [12 December 2019]

[1]                 Mr Rikihana, also known as Mr Dixon, appeals against two decisions of Judge Snell in the District Court at Rotorua, both on 11 October 2019.1

[2]                 The first appeal is against the Judge’s refusal to adjourn sentence to allow  Mr Rikihana to attend a rehabilitative program and the second against sentence itself.

Background

[3]                 Mr Rikihana, who is aged 33 or thereabouts, was for sentence on one charge each of robbery, unlawfully getting into a motor vehicle, being unlawfully in an enclosed yard, refusing a request for a blood specimen, possession of cannabis, careless driving and two charges of theft. Mr Rikihana committed this offending on  9 March 2019, just four days after his release from prison for what the Judge described as serious offending. Mr Rikihana’s conviction for robbery resulted in a “second- strike”,  meaning  that  any  sentence  imposed  must  be  served  without  parole.   Mr Rikihana also has a lengthy (nine page) criminal history.

[4]                 At sentencing the Judge had, amongst other things, a report prepared pursuant to s 27 Sentencing Act 2002, written by Mr Billy Macfarlane. Mr Macfarlane manages what he referred as to the “Pūwhakamua program”, which he has formulated to assist Māori offenders, and apparently with considerable success. Mr Macfarlane’s assessment was that Mr Rikihana would benefit from his program. Mr Rikihana sought an adjournment of sentence so that he could attend the program.

[5]                 However, were Mr Rikihana to attend the program, it would have been necessary for the Judge to grant him EM bail. The Judge was not satisfied he could do so. The EM bail report stated that Mr Rikihana had a high risk of reoffending, was at high risk of harm to others, and had a propensity to violence and substance abuse. In addition, Mr Rikihana would have been at the address with others, to whom the Judge considered Mr Rikihana a risk. Accordingly, and not without regret, the Judge declined to adjourn sentence so that Mr Rikihana could attend the program.

1      Police v Dixon [2019] NZDC 20632.

[6]                 As to the sentence itself, the Judge adopted a starting point of 31 months for the robbery charge. He uplifted by four months for the other offending, deducted three months for remorse and a willingness to be involved in rehabilitation, a further two months to reflect factors in the s 27 report and a further five months for Mr Rikihana’s guilty pleas. These reductions brought the  end  sentence to 25  months, rendering  Mr Rikihana ineligible for home detention. That said, the Judge said he was not satisfied he could impose an electronically monitored sentence, even if Mr Rikihana’s end sentence had been 24 months or less.

Submissions

[7]                 Mr Burns, counsel for Mr Rikihana, submitted the Judge erred in failing to adjourn the sentence to  allow Mr Rikihana to attend the Pūwhakamua  program.   Mr Burns also submitted that Mr Rikihana was entitled to a greater discount for his guilty pleas. Had a greater discount been given, a sentence of home detention could have been imposed and served at Pūwhakamua.

[8]                 The Crown submits that I do not have jurisdiction to entertain an appeal against a Judge’s refusal to adjourn sentencing if the appeal is brought after the offender has in fact been sentenced.

[9]                 Crown counsel  also  submits  the  Judge’s  sentencing  was  favourable  to Mr Rikihana and should not be disturbed.

Discussion

[10]            It is unnecessary for me to determine the jurisdictional point raised by Crown counsel. The Judge’s reasons for declining EM bail pending sentence were valid and I am not persuaded he erred in that decision.

[11]            As to the sentence itself, Mr Burns accepted that the Judge had been generous to Mr Rikihana, but submitted the Judge ought to have granted a greater discount for the guilty pleas, and had the Judge done so, Mr Rikihana would have been within range for a sentence of home detention.

[12]            I am not persuaded the Judge’s discount for Mr Rikihana’s guilty pleas was too modest and the sentence overall could only be described as extremely lenient. It is the end sentence that counts on appeal, not the individual components.

[13]            Moreover, and as the Judge intimated, the reasons that led  him  to refuse  EM bail would apply equally to consideration of home detention as a sentencing option.

[14]            Lastly, I agree with the Judge that it is to be hoped Mr Rikihana has the opportunity to participate in Mr Macfarlane’s program on his release. Unfortunately, that simply was not possible on this occasion.

Result

[15]The appeal is dismissed.

Peters J