Rikihana v Police

[2013] NZHC 711

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2013-454-03 [2013] NZHC 711

BETWEEN  TAKEREI WIKI RIKIHANA Appellant

ANDPOLICE Respondent

Hearing:         13 March 2013

Counsel:         M Ryan for Appellant

A M Read for Respondent

Judgment:      10 April 2013

JUDGMENT OF THE HON JUSTICE KÓS (Appeal against sentence)

[1]      The principal issue in this appeal against sentence is how the Supreme Court judgment in Hessell v R,1 allowing credit in sentencing for an early guilty plea, is to be applied.

Background

[2]      Takerei Rikihana was sentenced to 16 months’ imprisonment by a District Court Judge for assaulting his partner and breaching a protection order.  From that sentence he appeals.

[3]      Mr Rikihana and his partner have a one year old child.  His partner obtained a protection order against him on 20 October 2011.  Nonetheless, Mr Rikihana and his

partner continued living together on and off.

1      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

[4]      On the evening of 29 September 2012 Mr Rikihana was at home with his partner and their child.   He and his partner had an argument while washing the dishes.  She scolded him and left the room.  Mr Rikihana followed her, pushed her on to a chair, held her by the neck and pushed his thumbs into her throat to a point where she felt she was losing consciousness.  The attack soon stopped.  She tried to leave the house with the child.  She was blocked by Mr Rikihana.  After a time he relented.  A neighbour intervened and the police were called.  The attack left marks on his partner’s neck and burst capillaries in her eyes.

[5]      Mr Rikihana pleaded guilty to one charge of male assaults female2  and one charge  of  breach  of  a  protection  order.3      The  Judge  sentenced  Mr  Rikihana  to

16 months’ imprisonment on each charge, to be served concurrently.  Mr Rikihana appeals the sentences under s 115 of the Summary Proceedings Act 1957.

Decision appealed

[6]      The Judge adopted a starting point of 15 months’ imprisonment, “taking into account both charges at the same time”.  He then considered that an uplift of one month was appropriate to recognise that at the time of the offending, Mr Rikihana was subject to nine months’ supervision for contravening the same protection order. He imposed a further uplift of two months to recognise previous convictions of the same kind (breach of protection order in 2012; male assaults female in 2011, assault against  his  same  partner  in  2010).    Thus  the  Judge  arrived  at  a  sentence  of

18 months’ imprisonment.

[7]      The Judge then considered that the guilty plea “came late in the piece” and gave a discount of 12.5 per cent, rounded to 16 months’ imprisonment.  No further discounts were given.

Grounds of appeal

[8]      Mr   Rikihana   does   not   challenge   the   starting   point   of   15   months’ imprisonment.   But he claims that the sentence was manifestly excessive on three grounds.

[9]      First, Mr Ryan (who appeared for Mr Rikihana) submits that the guilty plea was entered on the day of the defended hearing in response to an offer made by the police just four days before.  The offer was to reduce the lead charge from assault with intent to injure to male assaults female.  Mr Rikihana’s acceptance of the offer was made known to the police first thing in the morning the day before the defended hearing.   The guilty pleas meant that the victim and two other civilian witnesses (along with a police officer) did not have to attend Court to give evidence in a half day hearing.   In those circumstances Mr Ryan submits that a discount of the maximum 25 per cent permissible would have been appropriate.

[10]     Secondly, Mr Ryan submits that remorse is a separate consideration from a plea  of  guilty,  as  the  Supreme  Court  in  Hessell  v  R  has  emphasised.4      Two handwritten letters from Mr Rikihana had been handed up to the Court expressing his remorse.  A further and separate discount should have been allowed to him for that.

[11]     Thirdly,  Mr  Ryan  submits  that  some  further  discount  might  have  been allowed for Mr Rikihana’s express plans to rehabilitate himself with the support of the Community Probation Service and his partner, to attend anger management and relationship counselling programmes, and to seek qualifications in the food industry.

Crown response

[12]     For the police, Ms Read submits that the effect of the decision in Hessell v R is that a more holistic, rather than crudely mathematical, approach is to be taken to the assessment of credit for a guilty plea.  Factors such as the timing of the plea and the strength of the prosecution case both remain relevant.  The Judge was entitled in

his discretion to consider the appropriate reduction for the guilty plea to be one around 11 per cent, given all the circumstances in which the pleas were entered, and the strength of the prosecution case.

[13]     Secondly, Ms Read submits that the Judge had taken into account at least one of the letters of remorse, and that little was added to it by the other.   The pre- sentence report said that Mr Rikihana “appeared to have limited insight into his violence propensity.  He stated that [his partner] started the altercation and that he reacted.”   Further, that he had “a varied compliance history with Community Probation; in particular he has not responded well to rehabilitative programmes.”  In light of those facts, the facts of the offending and Mr Rikihana’s previous history including convictions for domestic violence against the same victim in 2010 and a male assaults female conviction in 2011, the Judge was entitled to determine that Mr Rikihana’s  remorse  was  not  genuine  and  did  not  warrant  a  further  discrete reduction in sentence.

[14]     Thirdly,  in  light  of  Mr  Rikihana’s  previous  history  for  like  offending, previous rehabilitation efforts and poor compliance with such programmes, and the lack of evidence of a distinct programme for rehabilitation, the Judge was entitled not to give any further discrete discount for rehabilitative effort.

Approach on sentence appeals

[15]     Sections 115(4) and 119(1) of the Summary Proceedings Act 1957 provide that this is a general appeal to be heard by way of rehearing.   The onus is on the appellant to satisfy the Court that the grounds of appeal have been made out and that it should differ from the original decision.  But this Court must still come to its own view on the merits.5

[16]     In R v Monkman, the Court of Appeal considered the factors that would make

a sentence “manifestly excessive”:6

Whether a sentence can be said to be manifestly excessive turns on the maximum sentence prescribed by law for the offence; the level of sentencing customarily observed with respect to that offence; the place which the conduct in question assumes on the scale of seriousness of offences of that type; and the personal circumstances of the offender (to the extent that they are relevant with respect to the particular kind of offending).

[17]     When considering whether the sentence imposed by the District Court was manifestly excessive, the focus is on the correctness of the end result, not the process by which the sentence was reached. As the Court of Appeal observed in Ripia v R:7

... this Court has consistently observed that sentence appeals will almost always turn on a consideration of whether the final outcome is manifestly excessive.  The route by which the judge reached that outcome will be relevant to the analysis, but seldom in itself pivotal.

[18]    The High Court on appeal from the District Court will not lightly alter a sentence imposed by an experienced sentencing judge.  It is not the function of this Court to tinker with sentences, or alter them at all unless it feels that the sentence imposed is contrary to both principle and conscience.

Discussion

Guilty pleas – why they should be rewarded

[19]     As the Supreme Court said in Hessell v R8  credit is given for a guilty plea principally for policy reasons.   First, such a plea delivers benefits for the administration of justice (in saving the use of scarce resources).  Secondly it delivers benefits to those who otherwise would have to participate in the trial process (principally the victim, but also other witnesses).   There is a particular benefit to

victims: as a guilty plea represents acknowledgment of responsibility for offending.

7      Ripia v R [2011] NZCA 101 at [15].

There is also a wider societal benefit in transgressing members acknowledging their individual responsibility. As the Supreme Court said in Hessell:9

These considerations are based on expedience and social utility but are of importance to the effective operation to the criminal justice system.

[20]    The connection between remorse and such a plea is more complex.  The Supreme Court in Hessell referred with approval10  to the following passage in the judgment of Gleeson CJ in R v Gallagher:11

It must often be the case that an offender’s conduct in pleading guilty, his expressions of contrition, his willingness to cooperate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of interrelated considerations, and an attempt to separate one or more of those considerations will not only be artificial and contrived, but will also be illogical.

The acceptance of responsibility by an accused itself is beneficial to society – particularly  to  the  victims  of  the  offending,  to  whom  it  delivers  obvious  and intangible benefits.

Guilty pleas – how they should be rewarded

[21]     In Hessell, the Court of Appeal had earlier attempted in a guideline judgment to establish a clear, prescriptive approach for sentencing courts to follow.  Essentially a sliding scale with up to a 33 per cent reduction for a guilty plea entered at the first reasonable opportunity, down to a 10 per cent reduction for a plea entered shortly

before trial. As the Court of Appeal later said in R v Clifford:12

The Supreme Court considered that this Court’s approach was overly rigid and gave too much emphasis to the desirability of consistency in sentencing levels. While that is a factor recognised in s 8(e) of the Sentencing Act, that factor was one of 10 set out in s 8 and it was not appropriate to give it greater importance than the others.

[22]     Beyond excessive prescription, the Supreme Court also considered there were

other problems with the Court of Appeal’s approach: the extent of the discount, its

9 At [45].

10 At [53].

11     R v Gallagher (1991) 23 NSWLR 220 (NSWCCA) at 228.

amalgamation with remorse, and its disregard for the relevance of the strength of the prosecution case. These matters require some further discussion.

[23]     First, the discount for guilty plea alone should now be no more than 25 per cent.  It is still calculated on a sliding scale, but one that is more impressionistic than prescriptive.

[24]     Secondly,  remorse  is  to  be  regarded  as  a  prior  and  discrete  personal mitigating factor, and any discount for that is to be applied before an overall discount for the plea of guilty.  The Supreme Court in Hessell did not suggest what sort of discount genuine remorse would receive, but in practice it does not generally exceed

10 per cent.   To attract any discount remorse must, on a “robust” evaluation, be shown to be genuine.13     Remorse “evidenced in a way where it might provide a degree of solace to the victim” is particularly worth of credit.14   The Court of Appeal noted in Brown v R15 that remorse is relevant in two ways: first as atonement which might alleviate the victim’s suffering, and secondly as tangible evidence of progress

towards rehabilitation.  For remorse to be considered genuine the Court of Appeal in Brown v R thought it should evidence “deep regret, guilt, feeling of sorrow and acknowledgment of responsibility”.16

[25]     Thirdly, the strength of the prosecution case remains relevant to the extent of the discount.  In Hessell the Supreme Court said:17

[The Court of Appeal’s] approach would mean that where a plea is entered promptly, even in the face of a very strong prosecution case, the maximum discount must be given.  But that treats as irrelevant an important factor in evaluating the extent to which a plea involves acceptance of responsibility. The  approach  is  likely  to  lead  to  the  criticism  that  unjustified  windfall benefits are provided by the system to those who have little choice but to plead guilty.

[26]     Care is needed, however.  Even where the prosecution case is very strong, the accused is entitled to test it.  He or she is not to be penalised for doing so.  To the

extent that an accused, even in the face of overwhelming odds, concedes his or her

13     Hessell v R, above n 1, at [64].

14     Triggs v R [2012] NZCA 543 at [19].

15     Brown v R [2011] NZCA 95 at [16].

16 At [17].

constitutional rights and pleads guilty, it seems to me that some credit must be given for that.  It might not be as much as might be given to an accused who has conceded a sporting chance of acquittal, but it cannot be nothing at all.  For myself, I would have thought that a plea made at the earliest reasonable opportunity, even in the face of overwhelming odds, would still attract at least a 15 per cent discount (and potentially more). That is because the societal, public resource and victim atonement policy reasons for giving credit still apply.

[27]     Fourthly, that still leaves as the most significant consideration whether the guilty plea was entered at the first reasonable opportunity.  When is that point?  The Supreme Court made clear that a more flexible approach is to be taken than the Court of Appeal had contemplated.   For instance, in the case of disputed facts hearings, the Supreme Court contemplated that the requirement that the defendant must  always  plead  guilty  before  entering  the  disputed  facts  process  to  get  the

maximum discount is too rigid.18     It is more important to identify early intent to

acknowledge culpability for offending (subsequently found as a matter of fact to have occurred), rather than to adopt a rigid procedural chronology as a proxy for that exercise.

[28]     The  key  question  in  any  case  is  going  to  be  whether  the  accused  has competent legal advice, and whether he or she has the necessary information on which to make an informed decision to enter that guilty plea.19   Once that is so, some initiative is required of an accused if the fullest possible discount is to be obtained. It is not enough to wait for the police to propose a plea bargain.

[29]     On the other hand, if the police do propose a charge reduction, it does not seem to me likely to be a fruitful use of judicial time to attempt to evaluate whether it includes a substantial “concession” for the proposed guilty plea in itself,20 as opposed to a prosecutorial recognition that the initial charge was excessive.   Only exceptionally, I think, would the Court look behind the charge reduction.   In my view in most cases the reduction in charge should be taken to be a recognition that

the accused acted reasonably in resisting the initial charge.   The clock should run

18 At [61].

19     See in this respect Paul v R [2013] NZCA 45 at [17].

20     See Hessell v R, above n 1, at [62].

then  from  the  time  the  prosecution  unequivocally  offered  to  reduce  the  initial change.

Guilty pleas – this case

[30]     Against that background I turn to the facts here.  It is not clear to me what initiative was taken by the accused.   It is clear that he responded promptly to the police offer to reduce the lead charge from assault with intent to injure to male assaults female.  He accepted that offer within three days of it being made.  I do not think that Mr Rikihana should be penalised because all this happened in the immediate run up to trial.  He was charged with intent to injure, and the fact that the police offered to reduce that charge should be taken, in the absence of other reliable information, to suggest that Mr Rikihana was acting reasonably in resisting that

charge.  In Wallace v R21  a guilty plea to male assaults female was entered after 12

months, and only after more serious charges of kidnapping and assault with intent to injure were dismissed under s 347 of the Crimes Act 1961.  The Court of Appeal found that to be the “first available opportunity”.  A full 25 per cent discount was extended.

[31]     In this case the Judge said the guilty plea “came late in the piece”, and on that basis the discount should be half what would otherwise have been allowed.  Two months was deducted.   It does not appear the Judge fully appreciated the circumstances in which the charge came to be reduced to male assaults female. Certainly there was no reference to that in his judgment.  I do not think this approach can, in principle or conscience, stand.  A full discount of four months should have been allowed.

Remorse

[32]     Although  this  is  the  second  point  on  appeal,  logically  it  needs  to  be considered first.  Remorse, as just discussed, is a discrete personal mitigating factor to be considered before any discount for a plea of guilty.  It is clear that the Judge was cognisant of Mr Rikihana’s remorse: he refers to it in paragraph [1] of his

judgment.    It  is  perhaps  unfortunate  therefore  that  it  is  not  referred  to  again. Although the Judge refers to only one of two letters submitted by Mr Rikihana, the other added little to it.

[33]     Should a discrete discount have been allowed?   Did the Judge implicitly allow for it?22

[34]     As to the first of those questions I have read the letters.  The first expresses remorse, and the effect that the offending has had on his partner and child.  The letter however  goes  somewhat  off-key  in  arguing  about  the  inappropriateness  of  the original charge.

[35]     The second letter (and the one the Judge referred to in paragraph [1] of his judgment) is properly focused only on the victim.  Neither letter evinces significant self pity, and the statements made by Mr Rikihana appear on their face to be genuine. There is some support for that perspective in the letter written by his mother. It is an eloquent expression of the difficulties the family have had with a child who has had some  long  term  behavioural  and  drug  problems.     It  is  true,  I  think,  that Mr Rikihana’s  problems  with  the  law  have  been  more  sporadic  rather  than consistent.  More concerning however is the statement in the pre-sentence report that he  has  had  a  varied  compliance  history  with,  and  not  responded  well  to, rehabilitative programmes in the past.  However there is some evidence in the same report that Mr Rikihana is now taking a more positive approach.  The reporter found that expression to be genuine. Although the report refers to the fact that Mr Rikihana is remorseful, and is “willing to do whatever it takes to make things right”, it also states that he appeared to have limited insight into his violence propensity, stating that his partner started the altercation and that he had reacted.

[36]     In the circumstances there is I think enough to say that remorse deserved some small degree of recognition as a mitigating factor.  The appropriate allowance

would have been no more than 5 per cent.

22     As in Triggs v R [2012] NZCA 543 at [20].

[37]     As  to  the  second  question  asked  at  [31]  above,  there  is  no  sign  in  the judgment that there has been an implicit allowance for remorse as a mitigating factor.  The only mitigating factor acknowledged by the Judge in reduction of the starting point was for the guilty plea.  In some cases where a substantial allowance is made, that might by implication incorporate remorse.   In this case the allowance was, as I have found, inadequate and cannot implicitly have included remorse.

[38]     It  follows,  therefore,  that  a  separate  allowance  should  first  be  made  for remorse of 5 per cent, before calculation of the discount for the guilty pleas.

Plans for rehabilitation

[39]     Section 9(2) of the Sentencing Act 2002 makes no reference to rehabilitative efforts as a discrete mitigating factor.  Nonetheless the provision is not exclusive and I accept that in some cases extraordinary efforts in this respect might attract a further discount, over and above its nearest cousin, remorse.  A not uncommon example is an offender severing all ties with a criminal gang.23

[40]     Be that as it may, however, this is not such a case.  The proposals advanced are indicative only and advanced against a background of poor response to earlier rehabilitative programmes.

Conclusion

[41]    There is no challenge to the starting point of 15 months adopted by the sentencing Judge.  Nor to the uplifts given by the Judge for the fact that offending occurred while Mr Rikihana was still on release conditions and for prior like convictions.  These the sentencing Judge concluded required a modest uplift of three months, taking us to 18 months.  Remorse would justify approximately one month’s discount, to 17 months, before allowing for the effect of the guilty plea. Allowing as I must, full discount available for the guilty plea, entered promptly once the police reduced the charge to the present one, a further discount rounded to four months should be allowed.

Result

[42]     Appeal against sentence allowed.

[43]    On the charge of male assaults female the existing sentence of 16 months’ imprisonment is quashed.   In its place is substituted a sentence of 13 months’ imprisonment.

Stephen Kós J

Solicitors:

Crown Solicitor, Palmerston North for Respondent