Waitohi v The King

[2023] NZHC 3660

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-588

[2023] NZHC 3660

BETWEEN

REPARA WAITOHI

Appellant

AND

THE KING

Respondent

Hearing:

12 December 2023

Appearances:

J Y Yi for appellant

A F Mackenzie for respondent

Date of judgment:

13 December 2023

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 13 December 2023 at 3.00pm.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

Joon Yi, Barrister, Auckland Meredith Connell, Auckland

WAITOHI v R [2023] NZHC 3660 [13 December 2023]

[1]    Repara  Waitohi  appeals  against  the  1  November  2023  decision   of  Judge P Winter in the District Court at Auckland,1 consistently with an earlier sentencing indication,2 sentencing him to 27 months’ imprisonment on his guilty pleas to family violence charges.3

Background

[2]    On 24 October 2022 — while subject to sentence for family violence offending against the same victim, and in relation to whom he was subject to a protection order

— Mr Waitohi twice strangled and otherwise assaulted her. He has prior convictions for family violence offending against other victims. The Judge’s sentencing indication took account also of adjacent violence against the present victim for which Mr Waitohi was not directly charged.

Judgment under appeal

[3]    The Judge referred to the pre-sentence report’s assessments Mr Waitohi was “at high risk of re-offending and high risk of harm to others”, and “at serious risk of harming the victim”.4 After referring to the victim’s impact statement, in which she explained her “[genuine concerns] about repercussions from Mr Waitohi”,5 the Judge noted:6

Mr Waitohi for his part has told the Probation Service and the report writers that he is remorseful and realises that he acted badly. He has written a remorse letter saying he is sorry for what he has done, that he has a realisation of what happened, that he has had time to reflect and that he does not intend to harm the victim again.

The Judge also noted Mr Waitohi’s remorse was endorsed by the “experienced report writer”, and he accepted Mr Waitohi “is remorseful now”.7

1      R v Waitohi [2023] NZDC 25408.

2      R v Waitohi DC Auckland CRI-2022-004-7285, 27 April 2023 (Notes of Judge P Winter on sentencing indication).

3      Strangulation (x 2) (Crimes Act 1961, s 189A(a): maximum penalty, 7 years’ imprisonment); male assaults female (s 194(b): maximum penalty, 2 years’ imprisonment); contravenes protection order (Family Violence Act 2018, ss 90(a), 9 and 112(1)(a): maximum penalty, 3 years’ imprisonment).

4      R v Waitohi, above n 1, at [8].

5 At [9].

6 At [10].

7 At [15].

[4]    The Judge adopted his sentencing indication’s 45-month starting point, and discounted it:8

… by 15 per cent for the matters raised in the cultural report; that is your upbringing; abuse; the extent of the violence and drugs in your upbringing; and your cultural disconnect. Together with the discount of 25 per cent for plea of guilty, that is a discount of 40 per cent. That is 18 months from the 45 months’ imprisonment which is an end sentence of 27 months’ imprisonment.

[5]    For Mr Waitohi, Joon Yi submits the Judge erred in omitting any discount for Mr Waitohi’s remorse, which should have attracted a further 10 per cent discount. That is the sole ground of appeal.

Approach on appeal

[6]    I must allow the appeal only if I am satisfied both there is error in the sentence, and a different sentence should be imposed.9 In any other case, I must dismiss the appeal.10 The measure of error is the sentence be “manifestly excessive”, a principle “well-engrained” in this Court’s approach to sentencing appeals.11 I will not intervene where the sentence is within a range properly justified by accepted sentencing principle. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.12

Discussion

[7]    Section 9(2)(f) of the Sentencing Act 2002 requires a court in sentencing or otherwise dealing with an offender to take into account as a mitigating factor “any remorse shown by the offender” to the extent it is applicable in the case.

[8]The Court of Appeal recently explained:13

It is now well established that a discrete discount for remorse will be appropriate where a “proper and robust evaluation of all the circumstances” demonstrates that an offender is remorseful. Remorse need not be

8 At [19].

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

10     Section 250(3).

11     McCaslin-Whitehead v R [2023] NZCA 259 at [27], affirming Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[35].

12     At [28], citing Tutakangahau v R, above n 11, at [36].

13     Kohu v R [2023] NZCA 343 at [40] (footnotes omitted).

extraordinary, although it must be genuine. The onus is on the defendant to show it is so. This Court has previously stated that it will look for “tangible evidence, such as engagement in restorative justice processes”. Other examples include the voluntary payment of reparation, and efforts to remedy harm to the community. Where established, remorse tends to attract a discrete discount of between five and 15 per cent.

Remorse shown by the offender thus is the important emphasis, rather than any mere expression of it, as illustrated by s 9(2)(f)’s reference to s 10’s “amends”. As the Court of Appeal also recently has said, “[a]ssessment of remorse is necessarily evaluative”.14

[9]    The Judge plainly took account of Mr Waitohi’s expression of remorse. As plainly, he gave it no weight, as indicated by his specification of the material factors for discount in the s 27 report. That clearly was open to him, for the very reason he states: Mr Waitohi, as a serial family violence offender against this victim and others, needs especially to demonstrate any remorse.

[10]   The Judge expressly noted “Mr Waitohi has up until now chose violence when unable to manage situations in his life” and needs to obtain professional intervention.15 Thus the Judge’s conclusion on remorse: “[w]hat is important is that he learns from this and does not re-offend in this way”.16

[11]   Particularly in light of Mr Waitohi’s history, no discrete discount was justified for his expression of remorse “now”. It substantially is only a relatively non-specific apology lacking any tangible reality, including if provided to the victim or her response to it. Expressions of sorrow alone in the context of Mr Waitohi’s continued family violence offending is insufficient to qualify for any discount.17 The Judge’s sentence is not at all excessive, let alone manifestly so.

Result

[12]The appeal is dismissed.

—Jagose J

14     Sweeney v R [2023] NZCA 417 at [18].

15     R v Waitohi, above n 1, at [12].

16 At [15].

17     See Cameron v R [2023] NZCA 157 at [46].