HAKOPA JOSEPH WALL AND NEW ZEALAND POLICE

[2024] NZHC 2912

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2024-463-098

[2024] NZHC 2912

BETWEEN

HAKOPA JOSEPH WALL

Appellant

AND

NEW ZEALAND POLICE

Defendant

Hearing:	7 October 2024
Appearances:	A McPherson for Appellant J Mara for Respondent
Judgment:	8 October 2024

JUDGMENT OF MOORE J

[Appeal against sentence]

This judgment was delivered by me on 8 October 2024 at 3.00 pm.

Registrar/Deputy Registrar

Solicitors:

Gordon Pilditch, Rotorua

WALL v POLICE [2024] NZHC 2912 [8 October 2024]

Introduction

[1]    Mr Wall was sentenced by Judge Hollister-Jones to two years and one month’s imprisonment on charges of assault with a weapon, injuring with intent to injure, intentional damage and four charges of breaching his protection order.1 His sentence followed a sentencing indication that he accepted in May 2024 from Judge Snell.2

[2]    Mr Wall now appeals his sentence on the basis that the sentencing Judge erred in his application of the required sentencing methodology and because the Judge gave an insufficient reduction for the contents of his s 27 report. The Crown opposes the appeal.

The offending

[3]    The victims of Mr Wall’s offending were his former partner, “A”, and their child, “B”. Mr Wall had been in a relationship with A for thirteen years. A final protection order was issued against Mr Wall and in favour of A and B in May 2018.

[4]    On 15 September 2023, the three were travelling to Mr Wall’s family home in Kinloch. A was driving. Mr Wall had been drinking alcohol and was intoxicated. He became verbally abusive, causing B to cry. As this happened, A called a family member who recorded the ordeal on their cell phone. While sitting in the back seat, Mr Wall threw a glass bottle at A’s head. A said she feared crashing the car as a consequence of Mr Wall’s behaviour while she was driving.

[5]    On arrival at his parents’ home, Mr Wall followed A into the bathroom. There, he pushed her to the ground and kicked her in the back. When A tried to stand up, Mr Wall then grabbed her and shoved her into the bathtub. He proceeded to bite her on the back of her head and started pulling her hair out with his teeth. He then punched her and stomped on her back.

[6]    The offending only ended when family members arrived, allowing A to flee in her vehicle.

1      Police v Wall [2024] NZDC 19822.

2      Police v Wall DC Taupo CRI-2023-063-2670, 1 May 2024 (Sentence Indication of Judge Snell).

Sentence under appeal

[7]    The Judge proceeded to sentence Mr Wall on the basis of the sentence indication given by Judge Snell.

[8]    In that, Judge Snell indicated a starting point of 32 months’ imprisonment. That starting point was based on a 20-month starting point for the lead charge of injuring with intent to injure, followed by uplifts of 6 months each for the charge of assault with a weapon and for the four breaches of Mr Wall’s protection order. Judge Snell also indicated that if accepted, he would uplift the 32-month starting point by four months for previous convictions and that he would reduce it by 15 per cent for his guilty plea.

[9]    Accordingly, the Judge’s task at sentencing turned on whether Mr Wall was entitled to further reductions on account of any other mitigating factors. The Judge considered that there were two such factors.

[10]   The first was Mr Wall’s remorse. The Judge acknowledged that Mr Wall had attended a restorative justice conference in which he had apologised to A and recognised the role that alcohol had played in his offending. He noted too that Mr Wall had also penned a letter of remorse. In light of that, the Judge considered a reduction of 10 per cent to be warranted.

[11]   The second was Mr Wall’s s 27 report. On this, the Judge acknowledged that Mr Wall had endured an upbringing with “some traumatic features”, including violence at home, an incarcerated mother and an alcoholic father. The Judge noted, in particular, that it was alcohol that was said to be the direct contributor of what had occurred. However, the Judge also acknowledged that Mr Wall had a lengthy history of family violence offending against A and that any discount should be further tempered by his age of 31 years. In light of that, the Judge considered a discount of only 10 per cent was warranted.

[12]   In the event, the Judge adopted an end sentence of two years and one month’s imprisonment.

Approach on appeal

[13]   This Court must allow the appeal if satisfied that for any reason there was an error in the sentence imposed and a different sentence should be imposed.3 The focus is on the end sentence rather than the process by which it is reached.4 The Court will not interfere where the sentence is within the range that can properly be justified by accepted sentencing principles.5 To this end, the concept of a “manifestly excessive” sentence is well-engrained and there is no reason not to use it.6

Was the sentence manifestly excessive?

[14]   The present appeal gives rise to two questions: did the Judge err in applying the required sentencing methodology and did he give an insufficient discount for Mr Wall’s s 27 report? I take each in turn.

Did the Judge apply the required sentencing methodology incorrectly?

[15]   Ms McPherson’s central argument under this heading was that the Judge erred because he purportedly differed in the approach set out by Judge Snell in his sentence indication. In essence, her argument was that Judge Snell had indicated a “starting point” of 36 months, and that any discounts should thus have been reduced from that figure. She said this was because Judge Snell said:7

[19] … I consider that an overall starting point here is one of 32 months imprisonment. This is uplifted by four months for your previous convictions to reach 36 months imprisonment, and there would be a starting plea discount of 15 per cent if you were to accept this sentence indication.

[16]   However, Ms McPherson’s secondary argument was that in any event, the sentencing Judge was required to stand back and assess whether the end sentence arithmetically reached was just in all the circumstances. She submitted that even if the Judge adopted the right calculation, the Judge nevertheless erred in not rounding his sentence down in Mr Wall’s favour to a short sentence of imprisonment.

3      Criminal Procedure Act 2011, s 250(2).

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

5 At [36].

6 At [35].

7      Police v Wall, above n 2.

[17]   As I shared with Ms McPherson at the hearing, I consider the first argument inapposite. The required sentencing methodology provides that all aggravating and mitigating factors (including guilty plea) be calculated as a percentage of the starting point adopted, after a starting point has first been set.8 Thus, in short, it requires that all aggravating and mitigating factors be considered together and then applied to any starting point as a net uplift or reduction. As previous convictions are a personal aggravating factor, they necessarily fall to be considered in that second step.

[18]   In practice, a convenient way in which this is done is to first reduce any starting point due to discounts for personal mitigating factors as a percentage, and then to increase that reduced starting point in months for personal aggravating features such as previous convictions. Another way is to calculate the overall net uplift or reduction as a percentage and then to apply that overall percentage to the starting point. Either way, the answer is the same.

[19]   In this case, the Judge adopted a starting point of 32 months imprisonment for Mr Wall’s offending. He considered uplifts of 4 months (or 12.5 per cent of a 32- month starting point) to be appropriate for Mr Wall’s previous convictions and total discounts of 35 per cent to be warranted for Mr Wall’s remorse, guilty pleas and background. On either approach I have expressed, that meant the Judge was required to construct his sentence either by:

(a)first applying the 35 per cent discount for mitigating factors against the starting point of 32 months (bringing him to 20.8 months) and then adding four months for previous convictions (bringing him to 24.8 months); or

(b)calculating the net uplift/reduction for Mr Wall’s personal circumstances (that is, a 12.5 per cent uplift minus a 35 per cent discount) and applying that net uplift/reduction (in this case, a net 22.5 per cent reduction) to the starting point (bringing him to an end sentence of 32 months x (1 – 0.225) or 24.8 months).

8      Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].

[20]Accordingly, the required approach brought the Judge to an end sentence of

24.8 months, which the Judge rounded up to two years and one month’s imprisonment. It follows that the Judge did not err mathematically.

[21]   In any event, I reject that Judge Snell indicated an overall “starting point” of 36 months, inclusive of uplifts for Mr Wall’s convictions. It is plain from a reading of Judge Snell’s indication that he did not mean to suggest that discounts for Mr Wall’s personal mitigating factors should be reduced from a figure of 36-months. And the sentencing Judge was not bound, in any event, to follow such an approach when it was contrary to the required methodology.

[22]   The second argument that the Judge erred by not standing back and further reducing the sentence to one of 24 months is more apposite, given the need for any sentence to be ultimately just in all the circumstances.9 But as this depends on the adequacy of the Judge’s discount for Mr Wall’s personal mitigating factors, I consider it appropriate to first consider whether the Judge gave an insufficient discount for Mr Wall’s s 27 report before considering that question.

Did the Judge give an insufficient discount for Mr Wall’s s 27 report?

[23]   Ms McPherson submitted that the Judge erred in giving only a 10 per cent discount for Mr Wall’s s 27 report. She emphasised that the report set out a history of violence, alcohol and drug abuse in addition to a complex family dynamic in which Mr Wall’s mother was incarcerated, his father had abandoned the family and in which he was disconnected from his Māori culture. Given the obvious causal connection between the normalisation of domestic violence that he experienced through his upbringing and the index offending in this case, she submitted that the Judge should have given a discount of at least 15 per cent.

[24]   While I acknowledge that Mr Wall’s upbringing played a clear causative contribution to his offending against A, I ultimately consider the Judge’s discount to have been sufficient in this case. The task for the Judge was to consider the extent to which Mr Wall’s upbringing and background helped explained why he came to offend

9 At [49].

as he did, bearing in mind the seriousness of his offending.10 As Mr Mara for the Crown submitted, the Judge was right to consider Mr Wall’s history of family violence against A in determining the size of the discount to be given for the matters raised in his s 27 report. So too was the Judge correct to consider Mr Wall’s age and the seriousness of his offending here. While Mr Wall is not necessarily old, he is not necessarily young either. In the circumstances of this case, I simply cannot accept that the Judge erred in adopting only a 10 per cent discount. That discount fairly reflected the strength of the connection between his upbringing and the offending here.

Should the Judge have nevertheless adopted a short-term sentence of imprisonment?

[25]   In the event, the Judge adopted a sentence of 25 months’ imprisonment after reaching an end sentence of 24.8 months on the required sentencing methodology.

[26]   The Judge did so having adopted a principled starting point and equally principled uplifts and discounts for Mr Wall’s personal circumstances. Indeed, save for the Judge’s discount for Mr Wall’s 27 report, no issue is taking with any of these other aspects of the Judge’s sentence on appeal.

[27]   While I accept that the Judge was required to step back and ask whether the end sentence was one that was just in all the circumstances, I do not consider the Judge to have erred by adopting the final sentence that he did here. The Judge was not at liberty to artificially tailor his sentence to arrive at a sentence of home detention.11 Moreover, the need to deter Mr Wall from offending against A justified a sentence of imprisonment in this case.

[28]   Ms McPherson explained at the hearing that Mr Wall will be eligible for parole at the end of this month. She explained, however, that he will not be successful in any such application until he has completed a number of rehabilitative courses for which he is presently waitlisted, but which are oversubscribed. She advised that Mr Wall would likely undertake these courses in January and February next year.

10     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [109]–[111].

11     R v Honan [2015] NZCA 94 at [34], citing R v Edwards [2006] 3 NZLR 180 (CA) at [24] and [46].

[29]   As a consequence, Ms McPherson submitted that if the appeal were dismissed, Mr Wall would be remanded in custody effectively as a consequence of forces beyond his control.

[30]   While I sympathise with Mr Wall, such matters are of course for the Parole Board and will be considered by that body in making their determinations. They are not, however, matters which are appropriate to consider on a sentence appeal which is ultimately concerned with whether any sentence on appeal is manifestly excessive.

[31]   In the circumstances of this case, a sentence of 25 months’ imprisonment cannot be said to be manifestly excessive. For that reason, and that reason alone, the appeal should be dismissed.

Result

[32]The appeal is dismissed.

Moore J