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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZHC 711
Decision Date: 10 April 2013

CaseChat Overview and Summary

In Rikihana v Police, the appellant, Takerei Wiki Rikihana, appealed against the 16-month imprisonment sentence imposed by the District Court for assaulting his partner and breaching a protection order. The High Court of New Zealand was tasked with determining whether the sentence was manifestly excessive. The appellant claimed that the sentence was excessive because the guilty plea was entered late, the remorse shown was not adequately considered, and no discount was given for his plans for rehabilitation. The Crown argued that the Judge was entitled to consider the timing of the guilty plea, the strength of the prosecution case, and the appellant's limited insight into his violence propensity.

The court considered the factors that would make a sentence manifestly excessive, including the maximum sentence prescribed by law, the level of sentencing customarily observed, the seriousness of the offence, and the personal circumstances of the offender. The court found that the appellant had shown genuine remorse, and a separate allowance of 5 per cent should have been made for this before calculating the discount for the guilty pleas. The court also found that a full discount of four months should have been allowed for the guilty plea, as the appellant had entered it promptly once the police reduced the charge. Therefore, the appeal against the sentence was allowed, and the existing sentence of 16 months' imprisonment was substituted with a sentence of 13 months' imprisonment.

This case highlights the importance of considering genuine remorse as a discrete personal mitigating factor and the need for a flexible approach when determining the extent of the discount for a guilty plea. The court found that the appellant's remorse was genuine and warranted some recognition as a mitigating factor, even though it did not justify a significant discount. The court also found that the appellant's plans for rehabilitation, although indicative, were not sufficient to warrant a further discount as they were advanced against a background of poor response to earlier rehabilitative programmes.

Orders