Riley v The King

[2023] NZHC 124

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2022-087-000369

[2023] NZHC 124

BETWEEN

MAIHI RILEY

Appellant

AND

THE KING

Respondent

Hearing:	2 February 2023
Appearances:	A McPherson for the Appellant A Maino for the Respondent
Judgment:	8 February 2023

JUDGMENT OF HARVEY J

This judgment was issued by me on 8 February 2023 at 3.30pm.

…………………………… (Deputy) Registrar

Solicitors:

McPherson Law, Taupō

Gordon Pilditch, Office of the Crown Solicitor, Rotorua

RILEY v R [2023] NZHC 124 [8 February 2023]

Introduction

[1]                 On 28 November 2022, Judge Hollister-Jones in the District Court at Rotorua sentenced Maihi Riley to six months’ home detention after he pleaded guilty to one charge of strangulation.1 The Judge also issued a protection order in favour of the complainant. Mr Riley appeals both the sentence of home detention and the imposition of the protection order.

Background

[2]                 The appellant pleaded guilty on the basis of an agreed summary of facts. This records that the appellant and the complainant recently separated after a relationship of approximately seven years. The pair have three children together under the age of six, who were present at the time of the offending.

[3]                 On 28 March 2022, the appellant arrived uninvited to the complainant’s address in Taupō. She asked him to leave but he was too intoxicated to drive. The complainant then retired to her bedroom. At some point the appellant followed. An argument ensued and the appellant ended up straddling the complainant and placed both of his hands around her throat. He proceeded to squeeze with enough force to prevent her from breathing for approximately 10 seconds. The complainant panicked and attempted to lash out at the appellant. The complainant’s mother then entered the bedroom and intervened.

[4]                 The complainant sustained redness and extreme tenderness to her throat as a result. She also had pain in her shoulder.

District Court decision

[5]                 The Judge identified the principal aggravating features of the offending as being the breach of trust, the complainant’s vulnerability, and the duration of the

1      R v Riley [2022] NZDC 23583. Crimes Act 1961, s 189A(b). Maximum penalty 7 years’ imprisonment.

strangulation.2 The Judge considered an appropriate starting point to be two years’ imprisonment.

[6]                 The Judge then applied a 10 per cent discount for previous good character, and a five per cent discount for factors identified in the pre-sentence report regarding the appellant’s background.3 The Judge went on to apply a further five per cent discount for the appellant’s rehabilitative efforts thus far, and a 20 per cent discount for his guilty plea.4 These discounts totalled 40 per cent and brought the sentence down to 14 months.

[7]                 The Judge lastly applied a discount of two months to reflect the time spent on restrictive bail.5 This led to an end sentence to 12 months’ imprisonment, which was commuted to a sentence of six months’ home detention.

[8]The reasons for the Judge’s decision are summarised as follows:

[18] I agree that imprisonment is not appropriate, particularly since you are a first offender. Given the end sentence of 12 months, sentences of either intensive supervision or of community detention would not hold you sufficiently accountable. I consider the appropriate sentence is six months home detention …

[9]                 The Judge also stated that there would be a protection order in favour of the complainant under s 123B of the Sentencing Act 2002.6

Approach on appeal

[10]             An appeal against sentence is an appeal against the exercise of a discretion.7 I must allow the appeal only if satisfied that for any reason, there is an error in the sentence imposed and a different sentence should be imposed.8 I must dismiss the appeal in any other case.9

2      R v Riley, above n 1, at [12].

3      At [13]–[14].

4 At [15].

5 At [16].

6      At [20]

7      An appeal against the decision to make a protection order is also treated as an appeal against sentence: Sentencing Act 2002, s 123H.

8      Criminal Procedure Act 2011, s 250(2).

9      Section 250(3).

Submissions

Appellant

[11]             Ms McPherson submitted that the end sentence was manifestly excessive in that the discounts were insufficient and home detention was not the least restrictive outcome appropriate in the circumstances.

[12]             Counsel contended that the full 25 per cent ought to have been given for guilty plea, which was entered at the earliest opportunity following resolution of the charges and a change in counsel. She also submitted that a discount could have been given for remorse, and a greater discount for previous good character.

[13]             As to the type of sentence, Ms McPherson pointed out that the Provision of Advice to Courts (PAC) report recommended a sentence of intensive supervision and, only then if the Court considers electronic monitoring necessary, community detention. The report also assessed the appellant as at a medium to low risk of reoffending, this being his first offence. Ms McPherson submitted that the recommended sentence would better meet the appellant’s rehabilitative needs while still holding him accountable for his offending.

[14]             Turning to the protection order, Ms McPherson submitted that the prerequisites to the making of an order under s 123B(2) of the Act were not met. First, the order was not necessary for the protection of the victim as the appellant has relocated from Taupō to Whakatāne, the pair have not been in contact since the offending, and the appellant has been addressing the causes of his offending. Secondly, there was no updated victim impact statement from the complainant to confirm whether she objected to the protection order.

[15]             Ms McPherson further submitted that the protection order could cause unnecessary complications in the co-parenting of the appellant and complainant’s three children. The two-year old child is currently in the care of the appellant.

Respondent

[16]             Ms Maino submitted that the end sentence of six months’ home detention was appropriate, as were the discounts afforded to the appellant.

[17]             Counsel contended that the appellant could have accepted responsibility for the strangulation charge from the outset but instead pleaded guilty approximately five months later, after an additional charge of indecent assault was withdrawn due to complainant reluctance. It was argued that full credit for the appellant’s guilty plea would not accurately reflect these circumstances and would risk a double benefit.

[18]             Ms Maino further submitted that the appellant’s age and gang membership are inconsistent with a discount greater than 10 per cent for previous good character, and that there is no tangible evidence of genuine remorse warranting a distinct discount for that factor.

[19]             In addition, counsel contended that even if the Court were to adopt greater discounts, it was open to the Judge to select a higher starting point of two and a half years’ imprisonment based on the categories in Shramka v R, therefore the end sentence cannot be seen as manifestly excessive.10

[20]             Regarding the type of sentence imposed, Ms Maino argued that the Judge was entitled to find that the principles of deterrence and denunciation required a sentence of home detention. It was submitted that intensive supervision may not have been appropriate given the appellant had already engaged with rehabilitation at the time of sentencing, and that community detention (having a maximum length of six months) would not accurately reflect the 12-month nominal end sentence reached by the Judge.

[21]             As to the protection order, the Crown’s position is not entirely clear. Ms Maino initially stated that the respondent accepted the protection order can be discharged based on the updated views of the complainant. However, she then went on to submit that the order is still necessary for the protection of the complainant in the absence of

10     Shramka v R [2022] NZCA 299.

bail conditions which have now been removed. Counsel contended that future contact between the appellant and complainant is inevitable due to the fact that they have three children together, and that the protection order can simply act as a mechanism to prevent reoffending if and when required.

Discussion

[22]             I do not consider the appellant should have received the full 25 per cent discount for his guilty plea. A similar situation arose in Knight v R in which this Court rejected a submission that full credit ought to be given for guilty pleas that were entered as soon as the charges were amended following negotiations with the Crown.11 The Court in that case relied on Hessell v R regarding the risk of a double benefit:12

[62] Guilty pleas are often the result of understandings reached by accused and prosecutors on the charges faced and facts admitted. To give the same percentage credit invariably for an early guilty plea in sentencing without regard to the circumstances can amount to giving a double benefit. For example if the Crown agrees to accept a plea to manslaughter and drops a charge of murder in relation to offending, the acceptance of the plea can be a concession in itself. If the full credit for an early plea is then also given, the sentence may not properly reflect the offending.

[23]             As Ms Maino pointed out, the appellant had ample opportunity to plead guilty to the strangulation charge. That plea only occurred months later, and in the context of the withdrawal of a further charge. It follows that I do not consider the Judge erred in reducing the available guilty plea discount to 20 per cent.

[24]             I also do not consider the Judge should have given a greater discount for previous good character. The extent of a discount for this factor will depend in part on the length of time for which the defendant has exhibited good character.13 At 26 years old, the appellant cannot expect a significant discount and nor has he provided evidence of service to the community.

[25]             As to a discount for remorse, while the appellant was willing to engage in restorative justice, the writer of the PAC report also stated that the appellant

11     Knight v R [2021] NZHC 2372 at [17].

12     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [62].

13     Parkin v R [2018] NZCA 404 at [16].

“effectively denied the serious nature of his offending by claiming only to plead guilty to his charge in order to move on with his life”. That does not suggest any sense of genuine remorse for what the complainant had endured.

[26]             Overall, I am not satisfied that, in the circumstances, the sentence imposed was manifestly excessive due to the claimed discount deficiencies and that home detention was the least restrictive sentence that could have been imposed. A combination of intensive supervision and community detention would not have been appropriate even for a first offender. Indeed, as set out in Shramka v R even low level offending in this context might properly attract a sentence of two years’ imprisonment:14

[54] We will not offer a worked example of this category, which will need to be developed on a case-by-case basis in future decisions, and by reference to the higher levels analysed above. We are satisfied the present offending does not fall within this category. However, had the strangulation been more transitory, and the harm less enduring, a lesser sentence would have applied — perhaps as low as two years. Such offending might be regarded as “lower level” offending, for which an eventual sentence of home detention may be available (assuming a suitable address was available, which often is not the case where domestic violence is in issue).

[27]             That is exactly the starting point that the Judge imposed in the District Court to hold Mr Riley to account for his conduct. After discounts, that was then reduced to 12 months’ imprisonment, as foreshadowed, and then converted to six months’ home detention. I do not accept the argument therefore that the final sentence was manifestly excessive.

[28]             Regarding the protection order, if the complainant considers that it will no longer serve any useful purpose and may in fact, as Ms McPherson has submitted, cause practical challenges with child care arrangements, then the order can be cancelled. Until then, it should remain in place, for the reasons articulated by Ms Maino.

[29]             In conclusion, I discern nothing from the learned Judge’s decision that should be disturbed. The appeal must accordingly be dismissed.

14     Shramka v R above, n 10 at [54] (emphasis added).

Decision

[30]             Maihi Riley’s appeal against the 28 November 2022 sentence of Judge Hollister-Jones is dismissed.

Harvey J