Rikiti v The King

[2025] NZHC 1118

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2025-463-000025

[2025] NZHC 1118

BETWEEN

DANIEL RIKITI

Appellant

AND

THE KING

Respondent

Hearing:

28 April 2025

Appearances:

T Braithwaite for the Appellant

A McConachy for the Respondent (via VMR)

Judgment:

9 May 2025

Reissued:

12 May 2025

JUDGMENT OF ROBINSON J

[Sentence appeal]

Solicitors/Counsel:

Braithwaite Law, Rotorua Gordon Pilditch, Rotorua

RIKITI v R [2025] NZHC 1118 [9 May 2025]

Introduction

[1]        On 7 March 2025 Judge Geoghegan in the Rotorua District Court sentenced Daniel Rikiti to three years’ imprisonment after he pleaded guilty to one charge of dangerous driving causing death.1

[2]        Mr Rikiti appeals his sentence which he says was manifestly excessive because:

(a)the starting point of four years imprisonment was too high; and

(b)the Judge failed to give adequate discounts for Mr Rikiti’s guilty plea and other personal mitigating factors.

[3]        Mr Rikiti also seeks leave to introduce on appeal an affidavit sworn by him on 24 March 2025. Mr Rikiti’s affidavit exhibits confirm the contents of a letter dated 4 October 2024 that he wrote to the District Court for the purposes of sentencing. Counsel for Mr Rikiti, Mr Braithwaite, explained that at sentencing he (counsel) understood the letter had been sent to the District Court and served by email, and made submissions on that  basis.  But  due to  an  administrative error  unattributable to  Mr Rikiti, neither the Court nor the Crown had Mr Rikiti’s letter.

[4]        The Crown opposes both the appeal and the application to admit Mr Rikiti’s affidavit evidence.2

[5]        As explain below, I consider that Mr Rikiti’s affidavit raises a factual dispute about the nature of Mr Rikiti’s offending that is potentially relevant to sentencing. It is not possible for this Court on appeal to resolve that dispute, and it would be inappropriate to do so. In these unusual and regrettable circumstances, I have determined that the appropriate course is for Mr Rikiti’s sentence to be quashed and

1      R v Rikiti [2025] NZDC 5138. Land Transport Act 1998, s 36AA(1)(a). Maximum penalty 10 years’ imprisonment.

2      For completeness, the Crown opposes the admission of Mr Rikiti’s evidence insofar as it relates to his offending and therefore the sentencing starting point. I did not understand the Crown to oppose the admission of Mr Rikiti’s evidence insofar as it addresses his personal mitigating circumstances.

for the matter to be sent back to the District Court for a disputed facts hearing under s 24 of the Sentencing Act 2002.

The agreed statement of facts

[6]        The agreed statement of facts records that on the morning of 17 September 2022 at approximately 2:00 am, Mr Rikiti was driving his Subaru along Arawa Street, Rotorua. The complainant and his partner were walking along Arawa Street in the opposite direction. The complainant’s partner crossed Arawa Street, approximately 8- 10 metres in front of the complainant.

[7]        The complainant then stepped from the footpath onto the road crossing the fog line and looked towards Mr Rikiti’s vehicle as it approached. The vehicle maintained its speed.

[8]        The complainant paused in the lane and raised his hands. The headlights of Mr Rikiti’s vehicle illuminated the complainant’s position on the road. Mr Rikiti did not slow the vehicle or make any attempt to avoid the complainant. His vehicle “slammed” into the complainant who was seriously injured. Mr Rikiti did not brake until after he hit the complainant.

[9]        The complainant was taken to hospital and placed on life support which was later deemed ineffective as a direct result of the complainant’s injuries.

[10]      The agreed summary of facts records that on 19 August 2022 Mr Rikiti’s Subaru had been issued a non-operational order for a defective smashed windscreen and damaged front tyre. At 10:23 pm on Friday, 16 September 2022, Police attended a family harm episode between the defendant and his partner. During the episode, his partner took a golf club and used it to smash the windscreen.

[11]      At the time of the incident Mr Rikiti was on a restricted licence and driving outside the hours he was permitted to drive. He had consumed less than 250 micrograms of alcohol prior to the impact.

Mr Rikiti’s letter

[12]      In his letter to the District Court Mr Rikiti explains that the non-operational order was made after he was pulled over by an officer with concerns about the wheel on Mr Rikiti’s car. Mr Rikiti says a shock was broken, and that the officer saw a crack in his windscreen. Mr Rikiti says the officer:

…said the windscreen was not bad but that he would add it to the list of compliances. By itself the cracked windscreen would not have resulted in a pink sticker.

[13]      Mr Rikiti says that he borrowed money to buy a second-hand shock and replaced it himself. He was saving for a replacement windscreen.

[14]      As noted above, the summary of facts records that a few hours before Mr Rikiti drove the vehicle “his partner took a golf club and used it to smash the windscreen”. In his letter Mr Rikiti says that after that incident the Police separated him and his partner and gave him the car keys. He was ordered not to have any contact with her, but later went looking for her anyway. Mr Rikiti says she had been discharged from hospital the day before, so he went looking for her first at the Rotorua Police station, and then headed back to the Rotorua hospital. This is when the collision occurred.

[15]      Mr Rikiti says that as well as looking out for his partner, he was looking in his side mirror at a car in the distance behind him. He says “[a]t this stage, the windscreen, whilst damaged, is good enough to drive around, the streets are very quiet”.

[16]Significantly, Mr Rikiti says:

I deeply regret what happened that night. I accept I should not have been driving at that time. The main cause of the accident was that I was distracted when the victim walked out in front of my vehicle. I have pleaded guilty to dangerous driving on the basis that when I looked back at the road, even though it was likely too late, that the smashed windscreen may have impacted my ability to see the victim straight away. I pleaded guilty because I did not think it was right going to a trial when I accept that the accident was my fault.

(emphasis added)

[17]      Mr Rikiti’s letter also provides further information about his personal circumstances, including that he now has fulltime care for his nine-month old

daughter. Mr Rikiti has parenting and protection orders in place against his partner. She is now in custody on serious violence charges, unrelated to him. Mr Rikiti’s letter attaches the affidavit dated 28 August 2024 he swore in support of his application for the protection order.

Sentencing

[18]      The Judge set a four-year starting point based on the offending as described in the summary of facts. Mr Braithwaite tells me he also made submissions based on Mr Rikiti’s letter, thinking incorrectly that it was before the Judge and with counsel for the Crown. The Judge noted the “significant difference” between the parties, with Mr Braithwaite contending for a starting point of two years and six months’ imprisonment, while the Crown contended for four years.3 The Court accepted the Crown’s submission.4 The Judge found:5

Mr Braithwaite has submitted that but for the condition of the vehicle, this offending could have been pitched at careless driving causing death. I do not accept that. The very reason that you are facing this charge is because of the condition of that vehicle, and the fact that you should have known that you were not entitled to drive it.

[19]The Judge found this case to be more serious then that in the case of

Xiao v Police,6 and that:7

It would follow from that, that I cannot accept the submission of Mr Braithwaite that your offending is similar to the offending in authorities referred to me Harti v R,8 [sic] R v Martin9 and Ko v Police,10 all of which in my assessment involve relatively brief lapses of judgement with tragic consequences.

[20]      The Judge reached that view having identified various aggravating factors including that:11

3 At [16].

4 At [19].

5 At [20].

6      Xiao v Police [2016] NZHC 1947.

7      R v Rikiti, above n1, at [19].

8      Hati v R [2017] NZHC 687.

9      R v Martin [2020] NZHC 1542.

10     Ko v Police [2012] NZHC 3312.

11     At [17](b).

You were driving a poorly maintained vehicle which had been pink stickered. In other words, declared to be inoperable, undriveable. The broken windscreen is directly relevant to your ability to see anyone in front of the vehicle. I think that is accepted by Mr Braithwaite, although he submits that you had a mechanic’s background and you had repaired a front wheel before you had driven your vehicle. As against that, the reality is you should never have driven that vehicle at all.

The factual dispute

[21]      In submissions on appeal Mr Braithwaite says that prior to sentencing the defence suggested that some of the “contextual information” now set out in Mr Rikiti’s affidavit should be included in the summary of facts. The Crown did not agree to any changes to the summary of facts, but Mr Braithwaite says the Crown “suggested” that Mr Rikiti could provide an affidavit outlining his position in relation to attention. Any relevant factual dispute could then be resolved in accordance with s 24 of the Sentencing Act 2002.

[22]      Mr Braithwaite says this was essentially the purpose of Mr Rikiti’s letter, which he understood incorrectly was before the Court and with the Crown. He says Mr Rikiti has always accepted that the state of the vehicle was dangerous, but he maintains that the primary cause of the incident was distraction.

[23]      Ms McConachy confirms that the Crown disputes the contents of Mr Rikiti’s affidavit. She says it is inconsistent with disclosed evidence including a Serious Crash Investigation Review and photographs of the damage to the car. Ms McConachy understandably points out that the defendant did not seek a disputed facts hearing, so fell to be sentenced in accordance with the summary of facts.

[24]      Nevertheless, there are clearly disputes between the Crown and Mr Rikiti that are relevant to his sentence. These disputes concern the extent of the damage to the windscreen; the extent to which Mr Rikiti had been distracted before driving into the complainant; and the extent to which each of these factors were the cause of the complainant’s death. Mr Rikiti had prepared written material setting out his position on these disputed matters. He reasonably but wrongly thought that material was before the Court at sentencing.

[25]      Ms McConachy submits that these disputes are ultimately irrelevant. For his part, Mr Braithwaite submits that the Court should determine Mr Rikiti’s appeal on the basis of his affidavit and the letter that was not before the District Court.

[26]      I do not agree on either count. The Judge noted that the state of the windscreen was “directly relevant”. The authorities referred to by the Judge also show that the extent to which Mr Rikiti was distracted, if at all, would also be relevant. The Judge did not have Mr Rikiti’s letter raising these disputes and he was not asked to resolve them. With respect to Mr Braithwaite, he should have been. However, this Court cannot resolve those disputes on appeal. I do not have the relevant evidence, and in any event these are matters for the sentencing Judge. In fairness to Mr Rikiti, and in the interests of justice, these factual disputes should go back to the Judge for resolution.

Result

[27]      Mr Rikiti’s sentence of three years’ imprisonment is set aside. The matter is to go back to Judge Geoghegan for resolution of relevant factual disputes in accordance with s 24 of the Sentencing Act 2002. In the meantime, Mr Rikiti is to be remanded on bail pending a disputed facts hearing and sentencing in the District Court.

Robinson J