Piki aka Pikirangi v The King
[2023] NZHC 3306
•21 November 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2023-485-67
[2023] NZHC 3306
BETWEEN INA PIKI (AKA) POKOINA PIKIRANGI
AppellantAND
THE KING
Respondent
Hearing: 15 November 2023 Counsel:
E A Hall and R E O’Hagan for Appellant
J MacPherson and S Carter for Respondent
Judgment:
21 November 2023
JUDGMENT OF ISAC J
[Sentence appeal]
Introduction
[1] Mr Pikirangi appeals against a sentence of 22 months’ imprisonment imposed by the District Court on one charge of wounding with reckless disregard.1
[2]He advances two grounds of appeal:
(a)that Judge Johnston in the Court below misapplied the two-step sentencing methodology set out in Moses v R;2 and
(b)that the Judge failed to provide a discount for remorse.
1 Crimes Act 1961, s 188(2); maximum penalty seven years’ imprisonment.
2 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
PIKI (AKA) PIKIRANGI v R [2023] NZHC 3306 [21 November 2023]
The offending
[3] Mr Pikirangi had been in a relationship with the victim for approximately two years.3 The summary of facts recorded that there had been 10 previous family harm incidents between the appellant and his victim.4 Four days after they had separated, the victim approached an address where Mr Pikirangi was living at 10.30 pm in the evening. He was awoken by her knocking on his window, asking for her belongings. The appellant told the victim to “fuck off” and said that he had smashed her belongings.5 Nevertheless she continued to call out for around five minutes while standing outside the address.
[4] Mr Pikirangi then obviously flew into a rage. He armed himself with a tomahawk and went outside, saying to the victim “come here, you fucking bitch”.6 He then struck her twice in the head with the weapon. The blows caused two lacerations to her head, approximately five and two centimetres in length. It also appears that she was struck with the tomahawk at the back of the left thigh, where she had a further large laceration.7
[5] The appellant then stood over the victim and began to punch her in the face, causing a fracture to her nose. After grabbing her by her jersey, the appellant appears to have recovered himself, stopping the assault and apologising for what he had done.8
[6] As noted, the victim received two lacerations to the top and back of her head as well as a four centimetre laceration to the back of the left thigh. This wound was said to be four centimetres wide, with fatty tissue coming out of the wound.9 In addition to a fracture—described as small—to the left side of her nose, the victim also suffered from swelling and bruising to her head, forehead and eyebrows. She required immediate medical treatment.
3 NZ Police v Piki [2023] NZDC 21428 at [2].
4 At [2].
5 At [3].
6 At [4].
7 At [4].
8 At [5].
9 At [6].
The Judge’s sentencing decision
[7] After setting out the relevant facts, Judge Johnston turned to consider the appropriate starting point. Having noted that Police and the appellant were six months apart, and based on the relevant guideline judgments,10 the Judge concluded the offending fell within band three described by the Court of Appeal in Nuku v R. He found three aggravating features established:
(a)the use of a tomahawk as his weapon;11
(b)an attack to the head of the victim;12 and
(c)the relative vulnerability of the victim.13
[8] The Judge adopted a starting point of two years and nine months’ imprisonment (being the halfway point precisely between the Crown and defence submissions).14
[9] He then turned to address personal mitigating and aggravating factors personal to the appellant. The Judge provided discounts in total of 40 per cent representing:15
(a)25 per cent for an early guilty plea;
(b)five per cent for Mr Pikirangi’s rehabilitative prospects; and
(c)an additional 10 per cent for systemic deprivation which he found causally linked to the offending, as set out in a s 27 Sentencing Act 2002 report.
10 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39; and R v Taueki [2005] 3 NZLR 372 (CA).
11 At [27].
12 At [27].
13 At [28].
14 At [34].
15 At [36]–[37].
[10]The Judge declined to grant a discount for remorse, finding:16
As far as remorse is concerned, I have considered this very carefully, including the letter from you and the s 27 report, however, in my view there should be no further discount for remorse. Receiving the letter on the eve of sentencing is too late, despite what your lawyer has said today about the delay, and is inconsistent with what you said to the pre-sentence report writer. I consider that to be a more accurate assessment certainly at the time that you were interviewed.
[11] Turning to the question of an uplift for Mr Pikirangi’s previous criminal history, the Judge considered that an addition of three months was warranted. That conclusion is not challenged on appeal. Rather the focus of the parties’ arguments on appeal was how the Judge applied the discounts and uplifts to the starting point. Given that, it is convenient to set out in full the Judge’s remarks when dealing with the adjusted starting point against the uplift and discounts that he had identified:17
[34] As a result, and after considering all of the cases before me, I consider that a starting point of two years and nine months’ imprisonment is warranted.
[35] As far as an uplift for your relevant previous history is concerned, I note the case of R v Orchard that has been referred to by counsel. In any event, here I still consider that an uplift of three months’ imprisonment is warranted for your relevant previous conviction history, getting to an adjusted starting point of three years’ imprisonment.
[36]Discounts are appropriate. For your guilty plea, 25 per cent.
[37] I accept the rehabilitative prospects discount sought of 5 per cent and an additional 10 per cent for the systemic deprivation covered in the s 27 report.
[38] As far as remorse is concerned, I have considered this very carefully, including the letter from you and the s 27 report, however, in my view there should be no further discount for remorse. Receiving the letter on the eve of sentencing is too late, despite what your lawyer has said today about the delay, and is inconsistent with what you said to the pre-sentence report writer. I consider that to be a more accurate assessment certainly at the time that you were interviewed.
[39] Accordingly, the total discount is 40 per cent or 13.2 months, of course that coming off the two years and nine months starting point.
[40] That gets to an end point of 22.8 months, which I round down in your favour to 22 months imprisonment.
16 At [38].
17 At [34].
[41] I am satisfied based on the relevant cases and law that in these circumstances a sentence of imprisonment is required, and that the purposes for which this sentence is being imposed cannot be achieved by any less restrictive sentence or combination of other sentences.
[42] For the reasons that I have spelt out, you are accordingly sentenced to imprisonment for 22 months. Leave to apply for substitution of sentence is refused due to the seriousness of your offending and your conviction history for violence.
Approach on appeal
[12] Under s 250 of the Criminal Procedure Act 2011, an appeal against sentence must only be allowed if the Court is satisfied that, for any reason, there was a material error in the sentence imposed and a different sentence should have been imposed.18 The focus is on the final sentence reached. Although s 250 does not use the expression “manifestly excessive”, it is a principle that is well-established in the Court's approach to determining the extent of the error in sentence appeals.19
Consideration
Did the Judge incorrectly apply the Moses two-stage methodology?
[13] In calculating Mr Pikirangi’s sentence, Ms Hall submitted that Judge Johnston subtracted the total discount for personal mitigating factors from the lower starting point of two years and nine months’ imprisonment, rather than the final “adjusted starting point” (after the uplift was accounted for) of three years’ imprisonment. In counsel’s submission, this involved a three-step rather than two-step methodology which failed to take into account the deduction for personal mitigating factors on the adjusted starting point of three years, or 36 months. Ms Hall helpfully set out her interpretation of the Judge’s approach in table form, which I gratefully adopt:
18 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
19 At [32]–[35]; and R v Shipton [2007] 2 NZLR 218 (CA) at [138]–[140].
Step/Methodology Moses v R Judge Johnston One Starting Point: 2 years 9 months (33 months)
+ 3-month uplift = 36 months
Starting Point: 2 years 9 months (33 months) Two - 40% (14.4 months) for personal mitigating factors = 21.6m - 40% (13.2 months) for personal mitigating factors = 19.8m Three N/A + 3-month uplift End sentence 21.6 months 22.8 months
[14] Ms Hall, building on the submission that there had been an arithmetical error of approach in the application of Moses to the sentencing exercise, then submitted that current principle required the Court to correct a mathematical error, even if the resulting sentence is not manifestly excessive.20
[15] If one only looks at [34]–[35] of the Judge’s sentencing notes, the impression left is that the Judge may, indeed, have added the three month uplift for personal aggravating factors to the identified starting point of two years, nine months’ imprisonment, before then applying percentage deductions for personal mitigating factors. If that were all the Judge had said, I would have had some sympathy for the suggestion that there was a mathematical error in the Judge’s application of Moses.
[16] However, when one has regard to [36]–[42] of the judgment, it is clear that the Judge correctly dealt with both personal aggravating and mitigating factors (or in other words, uplifts to and discounts from the adjusted starting point) as part of the second stage of the Moses analysis.
[17] I agree with Ms MacPherson that when one examines the underlying calculation applied by the Judge, there is no identifiable error. Indeed, in my view the approach suggested by the appellant is inconsistent with Moses. It would provide the appellant with a discount for personal mitigating factors applied not only to the adjusted starting point, but also to the identified uplift for personal aggravating factors. As counsel for the respondent has noted, recent decisions of the Court of Appeal have
20 Relying on B (CA757/2021) v R [2023] NZCA 51 at [59]–[62] and Ferris-Bromley v R [2017] NZCA 115 at [15].
confirmed the correct application of Moses to defendants who receive both discounts and uplifts for personal factors.21
[18]Accordingly, I dismiss this ground of appeal.
Discount for remorse?
[19] As noted above at [10], the Judge was not persuaded that any discount for remorse was warranted. Two reasons supported that conclusion:
(a)Mr Pikirangi’s letter of apology to the victim came at the “11th hour”, and on the eve of sentencing. It seems the Judge was not impressed with the appellant’s delay in providing an apology, if he were truly remorseful.
(b)Second, the Judge noted the probation officer’s observation in the report for sentencing that Mr Pikirangi “showed no remorse toward the victim during the interview”.
[20] Ms Hall says the Judge was wrong to reject a submission that a further discrete discount for remorse was warranted. The reason for Mr Pikirangi’s delay in providing a letter of apology was that he cannot read or write. Counsel was therefore obliged to attend on him in person, receive a dictated apology from her client, and then transcribe it. Ms Hall also pointed to the well known difficulties defence counsel have experienced in recent years in obtaining access to their clients and systemic delays that have arisen.
[21] Second, Ms Hall referred to a notebook entry of a police constable which records that in addition to apologising to the victim immediately following the assault, the following day he handed himself in to Police. When the Police officer thanked Mr Pikirangi for coming voluntarily to the station, the appellant said he knew he was wanted and it was better than “running away and hiding”. These actions, counsel
21 Uruamo v R [2023] NZCA 356 at [25]; Gray v R [2020] NZCA 548 at [31].
submit, are clear evidence that the appellant took full responsibility for his conduct and is evidence of his remorse.
[22] Counsel for the respondent accepts that the notebook entry could be taken as evidence of genuine remorse. However, the respondent argues that, given the pre-sentence report writer’s views, it was open to the Judge not to provide any additional credit for this factor.
[23] Having regard to Mr Pikirangi’s explanation for the delay in the provision of his letter of apology to the victim and the Court, and what were clearly his spontaneous actions both when the assault ended, and in handing himself in to Police the following day, I am satisfied that a discrete discount for remorse was called for. The pre-sentence report does not, in my view, provide a satisfactory basis on which to conclude Mr Pikirangi has not demonstrated genuine remorse. First, the report is self-contradictory. While it clearly records, in two locations, that Mr Pikirangi “showed no remorse” and “did not express any remorse”, in the very first paragraph it records:
Mr [Pikirangi] fully accepts the descriptions set out in the summary [of facts] and expressed remorse for his actions.
[24] Second, as Ms Hall suggests, the report provides no factual or other context on which to assess the basis for the report writer’s subsequent and contradictory conclusion that there was no remorse.
[25] Third, the report throughout wrongly refers to Mr Pikirangi as “Mr Williams”. These mistakes and inconsistencies do not inspire confidence about the reliability of the statements on which the respondent’s case rests.
[26] In written submissions Ms Hall submitted that a discount of five per cent was appropriate, but at the hearing Ms O’Hagan, who carried this part of the argument, submitted a discount of 10 per cent was warranted.
[27] Overall, I consider it appropriate to provide a discount for remorse of eight per cent. Together with the discount for an early plea, that would bring the total discount for those factors to one third of the starting point.
[28] While the additional discount may not make a significant difference to the appellant’s overall sentence, when viewed as a proportion of the total, I am satisfied that a failure to adjust a sentence would render it manifestly excessive.
Conclusion and Result
[29] Mr Pikirangi’s sentence of 22 months’ imprisonment is quashed. In its place I impose a sentence of 20 months’ imprisonment calculated as follows:
(a)I adopt the Judge’s adjusted starting point of two years and nine months’ imprisonment, or 33 months (step one of Moses);
(b)I provide discounts for personal mitigating factors of 48 per cent and an uplift for Mr Pikirangi’s previous criminal offending of three months, or nine per cent (step two of Moses);
(c)resulting in a final sentence of 20 months’ imprisonment.
[30] I am aware that, historically, it has not been uncommon for first instance judges to identify a starting point, then apply an uplift for personal aggravating factors (invariably as a consequence of a defendant’s previous criminal history), before applying a discount for mitigating factors to both the adjusted starting point and the uplift. That approach is no longer correct following Moses. Step two requires a sentencing judge to arrive at a “net” position by combining both discounts and uplifts, and to apply the net stage two adjustment to the identified starting point.22
Isac J
Solicitors:
Luke Cunningham Clere, Wellington for Respondent
22 While there is no need for any change in sentencing practice in the District Court, a possible source for confusion in the past may have been the tendency to identify starting points and uplifts for previous offending as fixed time periods, while discounts for personal mitigating factors are often expressed as percentages. It may be clearer to express stage two factors in numerically consistent terms (as a percentage of the starting point, or as an identified numerical discount or uplift, or both).
0
6
0