Mokaraka v Police

[2020] NZHC 718

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2020-441-7

[2020] NZHC 718

GRAHAM CEDRIC MOKARAKA

v

NEW ZEALAND POLICE

Hearing:

7 April 2020

Appearances:

P Jensen for the Appellant

F Cleary for the Respondent

Judgment:

7 April 2020

JUDGMENT OF COOKE J

[1]    Mr Mokaraka appeals a sentence of two years, three months’ imprisonment imposed after pleading guilty to the following charges:

(a)One charge of threatening to kill,1

(b)One charge of assault on a person in a family relationship,2

(c)One charge of strangulation.3

1      Crimes Act 1961, s 306, maximum penalty seven years’ imprisonment.

2      Section 194A, maximum penalty two years’ imprisonment.

3      Section 189A(a), maximum penalty seven years’ imprisonment.

MOKARAKA v NEW ZEALAND POLICE [2020] NZHC 718 [7 April 2020]

[2]    Mr Mokaraka appeals his sentence on the grounds the starting point adopted at sentencing was higher than the starting point adopted in a sentence indication he had been given.

Factual background

[3]    The victim is Mr Mokaraka’s partner. On 23 June 2019 Mr Mokaraka began arguing with the victim. He grabbed her by the hair and dragged her down the hallway into a bedroom. He told the victim he was going to kill her. He put his hands around her throat and squeezed, strangling her. She was unable to breathe and her face became tight. She briefly fought him off but he grabbed her and again grabbed her by the throat and squeezed. She attempted to fend him off her but Mr Mokaraka bit her fingers. He finally released her but kept her in the bedroom for several hours, continuing to yell at her.

[4]    The victim received bruising to the neck, throat and back as well as bite marks to her finger.

District Court decision

[5]    Judge Adeane gave a sentence indication on 3 September 2019 in the briefest of terms. He said:4

[2]        Counsel have put forward the decision of Cooke J in Ackland v Police and submits that a starting point of two years’ imprisonment would be appropriate.5

[3]        Clearly, this is a matter within the intended spirit of the strangulation legislation. It involves domestic violence of a particularly unpleasant kind and, in my view, counsel is correct to submit for a starting point of two years which is the indication now given to Mr Mokaraka.

[4]        I am not prepared to go further and speculate about commutation of the sentence to home detention. That will depend on information yet to be received by the Court.

[6]    Following this indication Mr Mokaraka pleaded guilty. Sentencing took place before a different Judge. Judge Sygrove took a starting point of two and a half years’

4      Mokaraka v New Zealand Police DC Napier CR-2019-041-1294, 3 September 2019 at [3].

5      Ackland v Police [2019] NZHC 312, [2019] NZAR 1112.

imprisonment on the lead charge of strangulation, noting there were four aggravating factors present in the offending.6 He uplifted that by six months for the other charges. Observing there were no personal mitigating factors, the Judge then discounted 25 per cent for guilty plea, resulting in an end sentence of two years, three months.

Approach to appeal

[7]    This appeal is governed by subpart 4 of Part 6 of the Criminal Procedure Act 2011. The Court must allow the appeal if, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.7 The focus will usually be on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.8

[8]    Mr Jensen submits the end sentence was inappropriate because the Judge erred in adopting a higher starting point than the sentence indication. Second, the Judge double counted in uplifting by six months for collateral offending but the collateral offending was already considered as part of the aggravating factors justifying placement in a higher sentencing “band”.

[9]    Ms Cleary for the Police submits that any departure from the sentencing indication is addressed by allowing the guilty plea to be vacated, which the appellant does not seek, and that the sentence imposed was within the available range.

Higher starting point than sentence indication

[10]   Ordinarily where sentencing departs from the sentence indication, the defendant must be given an opportunity to vacate guilty plea. Section 115 of the Criminal Procedure Act 2011 provides (emphasis added):

115     Plea of guilty may be withdrawn by leave of court

(1)A plea of guilty may, by leave of the court, be withdrawn at any time before the defendant has been sentenced or otherwise dealt with.

(2)The court must grant leave to a defendant to withdraw a plea of guilty referred to in section 116(1) if—

6      New Zealand Police v Mokaraka [2019] NZDC 24098.

7      Criminal Procedure Act 2011, s 250.

8      Ripia v R [2011] NZCA 101 at [15]; see also Palmer v R [2016] NZCA 541 at [19].

(a)the court, presided over by the judicial officer that gave the relevant sentence indication, indicates that the circumstances described in section 116(2) apply and it proposes to impose a sentence of a different type or types, or of the same type or types but a greater quantum, than that specified in the sentence indication; or

(b)the court, presided over by a judicial officer other than the one that gave the relevant sentence indication, indicates that it proposes to impose a sentence of a different type or types, or of the same type or types but a greater quantum, than that specified in the sentence indication.

[11]   As the final sentence was presided over by a different judicial officer and a higher starting point  was  adopted  the  Court  ought  to  have  granted  leave  for  Mr Mokaraka to withdraw his guilty pleas. It is not clear whether an opportunity was given to vacate the guilty pleas. If that opportunity was not given the proper course would be to quash the conviction and remit the matter back to the District Court.9 But the appellant does not wish to vacate his guilty pleas. Mr Jensen advises the appellant wishes to have his sentence adjusted to reflect the sentence indication.

[12]   There are conflicting High Court authorities as to the correct approach where the defendant does not wish to vacate their guilty plea. Some cases have simply replaced the sentence to conform with the sentence indication:

(a)Te Namu v New Zealand Police:10 Sentence indication given for charges of breach of community work, male assaults female wilful damage and wilful trespass at the same time as an application for an order cancelling a sentence of community work. Community work sentence cancelled and indicated a sentence of community detention and supervision. At sentencing a different Judge added 200 hours of community service to the indicated sentence. On appeal the sentence replaced to reflect the indication, quashing the sentence of community work.

9      Te Namu v New Zealand Police [2013] NZHC 3443 at [10].

10     At [10]

(b)Te Tau v New Zealand Police:11 At the sentence indication the Judge found a “full discount” for guilty plea was appropriate. At sentencing a discount of 15 per cent given. On appeal MacKenzie J held:

[13]   In the circumstances, I consider that the Judge ought not to have departed from the indicated discount without giving a prior indication of her intention to do so. In those circumstances, I consider that, whether or not the end sentence was within the available range, the sentence needs to be adjusted on this appeal to conform with the indication.

[13]            Other, more recent cases, have confirmed that the approach is the ordinary one for a sentence appeal — that an error is only appealable if it results in an end sentence that is manifestly excessive.12 Mander J explained the approach fully in Nuku v R:13

[19]      This Court has taken a varied approach to the situation where a sentence imposed differs from the sentence indicated and the defendant does not wish to vacate his or her plea. In some cases, notwithstanding the sentence imposed being within the available range, it was considered appropriate to adjust the sentence on appeal to conform with the indication.14 In other cases, while satisfied an error had occurred insofar as the sentence failed to conform with that previously indicated, the Court held that to allow the appeal it would also need to be satisfied a different sentence should have been imposed when considering the matter afresh.15

[20]      In my view, the latter course will ordinarily be the appropriate approach, although, as the Court of Appeal observed in Tutakangahau v R , that may not always be the case, citing the example of an arithmetical error in the sentence which ought to be able to be corrected without difficulty on appeal. Mr Nuku submitted that this is such a case. However, as I have already observed, the arithmetical error related to the sentence indication not in calculating the sentence imposed.

[21]      The danger that arises when a sentence does not match that indicated is that because a defendant's expectations have not been met the plea has been entered on a false or mistaken premise. In order to meet that expectation it is necessary for an appellate Court to provide the appellant with the opportunity to vacate his or her plea in order to remedy the error and purge the potential injustice arising from the faulty process.

[22]      Because Mr Nuku does not wish to avail himself of that course despite being offered the opportunity to do so, any potential miscarriage resulting from a causal connection between the error and the entry of the plea can be

11     Te Tau v New Zealand Police [2015] NZHC 1716.

12     Wilson v R [2015] NZHC 298 at [37]; Appuhamilage v New Zealand Police [2015] NZHC 2355 at [32]; Nuku v R [2016] NZHC 2255.

13     Nuku v R, above n 12.

14     Te Tau v New Zealand Police, above n 11; and Te Namu v New Zealand Police, above n 9.

15     Wilson v R, above n 12; Appuhamilage v New Zealand Police, above n 12; and Scoles-Young v Police [2016] NZHC 1120.

discounted. However, there may be occasions where a defendant has served part of his or her sentence, such that the option of vacating the plea may no longer be a realistic option and a residual concern remains.

[14]            There is potentially a middle ground. A failure to apply the sentencing indication means that there has been an error in the overall sentencing process. This means that the Court on appeal can impose the sentence that it thinks appropriate given an error has been established. An appellant does not also have to demonstrate that it was manifestly excessive, or outside an available range. But equally the Court is not required to make the sentence conform to the initial indication if the Court does not think that sentence is appropriate.  That approach seems to me to be consistent with  s 250(2) of the Criminal Procedure Act 2011 for this particular category of case when the appellant does not seek to vacate the guilty plea. Ms Cleary accepted that this would be an appropriate approach in this case.

The appropriate sentence here

[15]            The District Court Judge adopted a starting point of two and a half years imprisonment on the lead offence of strangulation relying on the approach outlined in Ackland v New Zealand Police.16 That guidance has subsequently been addressed in later High Court decisions Houkamau v New Zealand Police, T v New Zealand Police, and Parker v New Zealand Police.17 These authorities have emphasised the importance of judges carefully considering the facts and context of the offending and avoid applying an overly rigid or mathematical approach rather than considering the subtleties of the offending.18 In T v New Zealand Police Doogue J observed the need to be cautious when considering bands and noted sentencing for strangulation ought to start with an appreciation of the specific circumstances and not by reference to bands.19 I agree with those notes of caution. Comparison with other similar cases will still remain important, and following a structured approach not inappropriate in itself provided such care is taken.

16     Ackland v New Zealand Police, above n 5.

17     Houkamau v New Zealand Police [2019] NZHC 2743; T v New Zealand Police [2019] NZHC 3375; and Parker v New Zealand Police [2020] NZHC 479 at [20]–[25].

18     Houkamau v New Zealand Police, above n 17, at [33] and [35];

19     T v New Zealand Police, above n 17, at [37]–[38].

[16]            The starting point adopted by the District Court Judge places the offending in the mid-range for this kind of offending. I note the following comparable cases:

(a)Ackland v New Zealand Police: The appellant had been in a relationship with the victim for 18 years and the pair had five children together. Following an argument the appellant struck the victim’s face several times and forcibly put both hands around her neck, causing her to gag. He yelled at her saying “if you want I can end it all now”. She lost consciousness. The starting point of two years’ imprisonment was upheld on appeal.

(b)Houkamau v New Zealand Police: The appellant had been in a relationship with the victim for around three years. After an argument the appellant grabbed the victim by her clothing and shoved her out the front door of the house. He punched her in the forehead and began choking her by putting both hands around her neck and squeezing. She fought back and tried to pull his hands off and asking him to let go. He continued to squeeze for a short period before shoving her back into the ground, causing her neck to hit wooden edging on the ground. On appeal Thomas J upheld the two year starting point adopted by the Judge but noted it could be considered stern.

(c)Parker v New Zealand Police: The appellant was charged with one charge of strangulation, three charges of assault in a family relationship and three charges of intentional damage. The appellant and the victim were in a relationship. The victim had four young children from a previous relationship. They were present in the home at the time of the offending but did not witness the incident. Over a period of weeks before the strangulation there were three previous incidents of increasing seriousness where Mr Parker had assaulted the victim and damaged the house. The strangulation occurred after an argument. The victim no longer wished to be in a relationship. He screamed at her, punching a hole in the door. He grabbed her around the throat and squeezed, saying “its not over until I say it is”. The District Court Judge

adopted a starting point of two years imprisonment with a six-month uplift for the other charges. On appeal Clark J upheld the two-year starting point.

(d)T v New Zealand Police: The appellant and the victim had been in a nine year relationship and had two children together. After an argument the victim left the house and the appellant began smashing up the furniture. When she returned to the property the appellant ran at the victim and kicked her forcefully to the forehead, causing her to fall to the ground and lose consciousness. She awoke to the appellant dragging her across the ground. He forced her into a bedroom. When she tried to escape through a window the appellant grabbed her around the neck and hauled her onto the bed. She lost consciousness and lost control of her bladder. On appeal Doogue J held the three year starting point adopted by the Judge was within range but considered it “lenient”.

[17]            Given those cases, it seems to me that a starting point of 2 years’ imprisonment would be most appropriate in the present case. Ms Cleary indicated during oral submissions that she did not disagree with that assessment.

[18]            As for uplifts for the other offending, I agree with the District Court Judge that a six-month uplift is appropriate. Mr Jensen submits that the Judge erred in double- counting the assault as justifying the starting point and separately uplifting for the assault. While the assault was considered at both stages, the prior incident forms part of the context for the strangulation offending and is relevant in setting a starting point. To uplift further for that same incident is not necessarily in error as long as the Judge was careful to take into account totality. That takes the sentence to two years six months.

[19]            After full discount for guilty plea, the end sentence is one year, ten months — a difference of some five months from the end sentence imposed by the District Court Judge.

[20]            For these reasons I allow the appeal and substitute a sentence of imprisonment of one year 10 months. I formally reserve leave for the appellant to apply to the District Court for home detention, albeit that Mr Jensen indicated that this was unlikely to be a realistic option.

Cooke J