Hiki v The Queen
[2014] NZHC 2570
•21 October 2014
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
CRI-2014-416-0011 [2014] NZHC 2570
BETWEEN MATTHEW RORO REWI HIKI
Appellant
AND
THE QUEEN Respondent
Hearing: 20 October 2014 Appearances:
M Prinsloo and A M Sceats for Appellant
S B Manning for RespondentJudgment:
21 October 2014
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 21 October 2014 at 11.00 am pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: Woodward Crisp, Gisborne A M Sceats, Gisborne Elvidge & Partners, Napier
HIKI v R [2014] NZHC 2570 [21 October 2014]
Introduction
[1] The Appellant appeals against sentence imposed on two offences, committed at different times and in different circumstances. Sentence was imposed by Judge A J Adeane in the District Court at Gisborne on 23 July 2014, following guilty pleas by the Appellant.1
[2] The first offence was one of attempting to obstruct the course of justice, for which the maximum penalty is seven years’ imprisonment.2 This offence was committed in May 2014.
[3] The Judge adopted a starting point of two years’ imprisonment. The Judge uplifted the starting point by six months for a previous offence of the same nature, committed in 2011 and for which the Appellant had been sentenced to nine months’ imprisonment. The Judge allowed the Appellant a discount of 25 per cent for an early guilty plea, giving an end sentence of 22 months.
[4] The Appellant takes issue with the starting point, the extent of the uplift and submits that the Judge erred in failing to give a separate discount for remorse. The Appellant submits that a starting point of 18 months was appropriate, with an uplift of one month for the prior offending, less 25 per cent for the early guilty plea, giving an end sentence of 14 months’ imprisonment.
[5] The second offence was one of injuring with intent to injure, committed on
9 June 2014 whilst the Appellant was remanded in custody on the obstruction charge. The maximum penalty for this offence is five years’ imprisonment.3 Apparently the Appellant asked the complainant, another inmate, for some nicotine patches. The complainant replied that he did not have any. The Appellant then punched the complainant in the eye, fracturing his eye socket. The Judge sentenced the Appellant
to nine months’ imprisonment for this offending.
1 R v Hiki DC Gisborne CRI-2014-016-1147, 23 July 2014.
2 Crimes Act 1961, s 117(e).
3 S 189(2).
[6] The Judge determined that the two sentences should be served cumulatively as they arose out of separate incidents. Accordingly, the total period of imprisonment imposed was 31 months.
[7] No issue is taken with the starting point or end sentence on the injuring with intent charge. Counsel for the Appellant submitted, however, that the total period of imprisonment was wholly out of proportion to the gravity of the overall offending, as to which see s 85(2) Sentencing Act 2002.
Approach to appeal
[8] The Appellant has a general right of appeal against sentence.4 Such an appeal is by way of rehearing.5 The powers of the High Court on hearing an appeal against sentence are as follows:6
121 High Court to hear and determine appeal
(3) In the case of an appeal against sentence, the High Court may—
(a) Confirm the sentence; or
(b) If the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or if the High Court is satisfied that substantial facts relating to the offence or to the offender’s character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court, either—
(i) quash the sentence and either pass such other sentence warranted in law (whether more or less severe) in substitution therefor as the High Court thinks ought to have been passed or deal with the offender in any other way that the Court imposing sentence could have dealt with him on the conviction; or
(ii) quash any invalid part of the sentence that is severable from the residue; or
(iii) vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it.
4 Summary Proceedings Act 1957, s 115.
5 S 119.
6 S 121.
[9] Accordingly, the High Court may vary a sentence only if it is shown to be clearly excessive or one of the other prerequisites is met. The High Court will not intervene if the sentence is within a range that can properly be justified by accepted sentencing principles.
Attempting to obstruct the course of justice
[10] The facts, as they relate to the attempting to obstruct offending, appear in the summary of facts as follows.
[11] The Appellant was in a domestic relationship with a Ms Hale. In late 2013, Ms Hale was charged with blackmail and obtaining by deception. The complainant on both charges was a Mr Robert Seymour, aged 67.
[12] Ms Hale was due to appear in late May 2014. Three days prior to that appearance she, the Appellant and Ms Hale’s brother went to Mr Seymour’s home at
11.30 pm. The trio went into the house, entered Mr Seymour’s bedroom and woke him. The Appellant was wearing his Mongrel Mob gang patch and he started to talk about Ms Hale’s forthcoming Court appearance. The summary of facts states that the complainant was frightened and that the Appellant’s voice was “rough and tough”.
[13] The Appellant asked Mr Seymour to write a statement for use in the proceedings, to the effect that he was not scared of Ms Hale, to assist Ms Hale on sentencing.
[14] The Appellant returned to Mr Seymour’s address the following day and spoke to Mr Seymour’s daughter. By this time the Police had been informed of the visit the night before. The Appellant wished to know who had told the Police of the visit. Mr Seymour was not present. The Appellant said that he would be back later that night, which he was at 9.30 pm.
[15] The Appellant was again wearing his patch, he was intoxicated, and sat next to Mr Seymour. The Appellant again raised the subject of the statement. Mr Seymour changed the subject and the Appellant left.
Starting point
[16] In support of her submission as to the starting point, counsel referred me to several authorities, the earliest in time of which was R v Hillman.7
[17] The appellant in Hillman had told his girlfriend (he was 24, she 18) to “drop” charges that she had been assaulted by a member of the same gang as the appellant. The girlfriend refused. The appellant returned later in the day, made the same request, and behaved in a way which she found frightening and intimidating.
[18] The Court of Appeal referred to three cases which were said to establish a benchmark of three years’ imprisonment “for … very serious offending”.8 The Court considered the appellant’s offending to be less serious and reduced the appellant’s sentence from three years’ to 18 months’ imprisonment. Accordingly, it has become common to refer to three years’ imprisonment as the starting point for very serious offending and 18 months to two years for less serious offending.
[19] The appellant in R v Clutterbuck took exception to parts of an affidavit sworn by the complainant in support of her application for a protection order.9 The appellant threatened the complainant with disclosure of matters to the Police if she did not withdraw her application. The Court of Appeal confirmed the Judge’s starting point of two years, particularly where the object of the appellant’s exercise was to deter a woman seeking protection from her partner.
[20] Other cases to which counsel for the Appellant referred me were R v Gemmell
and Rakete v Police.10
[21] In Gemmell the appellant and another person were charged with serious offending. The appellant sought to persuade a witness to retract his evidence, hinted that some friends might pay a “visit” to the witness, and reinforced the request by a
subsequent telephone call.
7 R v Hillman CA14/92, 14 May 1992.
8 At 4.
9 R v Clutterbuck CA372/99, 17 November 1999.
10 R v Gemmell CA257/96, 2 October 1996; and Rakete v Police, HC Auckland CRI-2009-404-
0179, 21 August 2009.
[22] Comparison between the present case and Gemmell is complicated by the fact of the serious offending in the latter case. The Court did say, however, that attempting to influence the course of a case by suborning a witness strikes at the fundamentals of the administration of justice and cannot be tolerated.
[23] The appellant in Rakete telephoned a witness who was to give evidence against the appellant some two days later, on a charge of dangerous driving. The witness’s young daughter informed the appellant that the witness was not at home. The appellant told her “Tell Jerry to watch his back, no witness”. At first instance the Judge adopted a starting point of 21 months’ imprisonment on a charge of attempting to pervert the course of justice. Andrews J concluded that starting point was manifestly excessive and held that a starting point of 18 months’ imprisonment was appropriate.
[24] R v Churchward was a Crown appeal against a sentence of community service imposed on the respondent.11 The respondent’s partner was charged with wounding with intent to injure. On several occasions the respondent communicated with the partner of the complainant on the wounding charge, asking the complainant to retract his complaint. The Court allowed the appeal against sentence and, having taken account of various matters, imposed a sentence of nine months’ imprisonment
with leave to apply for home detention.
[25] Turning to this case, the Appellant and his associates entered Mr Seymour’s house uninvited, late at night and went into his bedroom. I have no doubt that Mr Seymour was frightened and that there was an implicit and intended threat in the Appellant’s conduct. The Appellant’s two return visits the following day could only have reinforced the threat. As counsel for the Appellant submitted, however, the Appellant was not seeking retraction of evidence or of a complaint, but rather a statement to assist Ms Hale on sentence. In my view that is an important point of
distinction.
11 R v Churchward CA439/05, 2 March 2006.
[26] Taking account of the authorities to which I have referred, I am satisfied that the appropriate starting point was 18 months’ imprisonment, and that the starting point that the Judge adopted was manifestly excessive.
Uplift
[27] Turning to the prior offending, Crown counsel submitted that an uplift of six months was within the range open to the Court. Counsel drew comparisons with uplifts commonly imposed on sentencing recidivist burglars. With respect to him, such an analogy does not assist me in the present case. The uplift the Judge imposed is two thirds of the sentence imposed on the earlier charge. I accept the Appellant’s submission that an uplift of that duration for the earlier offending was excessive. I propose to substitute an uplift of three months’ imprisonment for the prior offending.
[28] This brings the sentence to 21 months’ imprisonment, subject to reduction on account of the Appellant’s early guilty plea.
Remorse
[29] Counsel for the Appellant also submitted that the Judge erred in failing to reduce the sentence on account of expressions of remorse by the Appellant, contained in a letter to the Judge. The Judge did not refer to the letter in his sentencing notes, if indeed he received it. Amongst other things, the Appellant wrote that his intentions towards Mr Seymour were not sinister, and the Appellant had simply asked Mr Seymour, wrongly he now realised, for a statement supportive of his partner.
[30] A reduction for remorse, in addition to that given for an early guilty plea, is at the discretion of the Judge and usually granted only in a compelling case. I am not satisfied that there was any error on the Judge’s part in failing to give a separate additional discount in this case, even if he had the letter.
[31] Retaining the Judge’s discount of 25 per cent for the early guilty plea, the end sentence on the offence of attempting to obstruct the course of justice is reduced to
16 months’ imprisonment.
Injuring with intent to injure
[32] As I have said, the Appellant does not take any issue with the end sentence imposed on this offence.
Totality
[33] The reduction in sentence I propose to order will reduce the Appellant’s total term of imprisonment of two years, one month. I do not consider that wholly out of proportion to the gravity of the overall offending.12 In any event, I accept the Crown’s submission that there is limited scope for reducing a term of imprisonment for offending involving violence within prison. Crown counsel referred me in particular to R v Connelly:13
[31] … In a case such as this, where the respondent was subject to a nine- year sentence for previous violent offending, any regard to the totality principle can only be minimal, given the gravity of the overall offending. Re- offending, particularly violent re-offending, while in prison, must have significant consequences for the offender, notwithstanding that the outcome is a very lengthy period of imprisonment.
[34] And Karetu v R:14
[14] In reliance on Tryselaar v R, the Judge took the view there could be no reduction for totality given this was further violent offending in the prison environment and there was a resultant need for a deterrent sentence. …
…
[18] We are satisfied that the sentence of four years and three months imprisonment was not manifestly excessive. A deterrent sentence was appropriate. As this Court said in Tryselaar, “[o]ffending in the prison environment, particularly where that offending goes to the maintenance of the discipline needed to effectively manage a penal institution, demands a stern response”. The point being made in Tryselaar was that it would undermine the need for a stern sentence to require an adjustment to reflect the fact the offender is already serving a sentence of imprisonment for other offending.
(footnotes omitted)
12 Sentencing Act 2002, s 85(2).
13 R v Connelly [2010] NZCA 52 at [31].
14 Karetu v R [2013] NZCA 408, at [14] and [18].
Result
[35] The appeal is allowed in part.
[36] The sentence imposed by the Judge on the offence of attempting to obstruct the course of justice is reduced to 16 months’ imprisonment.
[37] In all other respects, the Judge’s decision is confirmed.
[38] This means the Appellant’s total sentence is two years, one month’s
imprisonment.
..................................................................
M Peters J