Walker-Oaariki v Police
[2020] NZCA 447
•23 September 2020 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA327/2020 [2020] NZCA 447 |
| BETWEEN | ALAIN WALKER-OAARIKI |
| AND | NEW ZEALAND POLICE |
| Court: | Goddard, Ellis and Dunningham JJ |
Counsel: | G H Vear and D J Taumihau for Applicant |
Judgment: | 23 September 2020 at 11.30 am |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal against conviction is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Dunningham J)
Mr Walker-Oaariki applies for leave to bring a second appeal against conviction under s 237 of the Criminal Procedure Act 2011 (CPA). The application is brought on the ground that a risk of a miscarriage of justice arises because the High Court refused to set aside his guilty pleas on charges of strangulation and assault on a person in a family relationship.[1]
The statutory test
[1]Walker-Oaariki v Police [2020] NZHC 1087 [High Court judgment].
The threshold for leave to bring a second appeal is high.[2] Section 237(2) of the CPA prevents this Court from granting leave to bring a second appeal against conviction unless this Court is satisfied that:
(a)the appeal involves a matter of general or public importance; or
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
Background facts
[2]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.
Mr Walker-Oaariki was charged with strangulation[3] and assault on a person in a family relationship,[4] following a confrontation between him and his partner on 28 June 2019. The assault was witnessed by two independent persons. The charges were scheduled to be heard at a Judge-alone trial on 7 November 2019, with Mr Walker-Oaariki having been in custody since 29 June 2019.
[3]Crimes Act 1961, s 189A: maximum sentence of seven years’ imprisonment.
[4]Section 194A: maximum sentence of two years’ imprisonment.
On 7 November 2019, it transpired the Court was over-booked, and the trial had to be adjourned. That meant Mr Walker-Oaariki would spend further time remanded in custody until the new fixture date which was estimated to be in April the following year. Trial counsel, Mr Silich, said Mr Walker-Oaariki’s primary consideration was “the time he already had, and may yet have to spend in custody”. For this reason, a sentence indication was not discussed with Mr Walker-Oaariki as trial counsel considered that would lead to further delays, which Mr Walker-Oaariki wanted to avoid.
Having been advised that a potential end sentence of 14 to 18 months’ imprisonment was possible after factoring in a guilty plea discount, and after counsel negotiated some modest amendments in the summary of facts in Mr Walker-Oaariki’s favour, he entered guilty pleas to both charges that day. He was sentenced on 10 December 2019 to two years and two months’ imprisonment.[5]
The High Court decision
[5]Police v Walker-Oaariki [2019] NZDC 25028.
Mr Walker-Oaariki appealed his conviction and sentence to the High Court. He relied primarily on the failure to advise him to obtain a sentence indication rather than on the ground now advanced.
On 22 May 2020, Powell J dismissed the appeal. In his judgment, Powell J briefly outlined the facts, noting that the physical confrontation between Mr Walker‑Oaariki and his partner was observed by members of the public. He was seen to pull the complainant to the ground and place his hands around the complainant’s throat, strangling her before punching her twice to the face. The confrontation was broken up when members of the public intervened.[6]
[6]High Court judgment, above n 1, at [4].
Powell J then set out the legal principles applying to an appeal against conviction based on trial counsel error, citing Whichman v R, as follows:[7]
Where an appeal against conviction following a guilty plea relies on trial counsel error, a miscarriage will arise where the following threshold is met:
(a)the advice given by trial counsel was erroneous;
(b)there was a genuine prospect of acquittal at trial had the plea not been entered; and
(c)there is credible evidence that but for the erroneous advice, the guilty plea would not have been entered.
[7]At [9] (footnote omitted), citing Whichman v R [2018] NZCA 519 at [41].
Counsel for Mr Walker-Oaariki submitted that trial counsel gave advice which was erroneous by:[8]
(a)not providing the option of a sentencing indication during the resolution discussions; and
(b)advising Mr Walker-Oaariki that if he was to plead guilty he would receive a sentence shorter than the period he would spend in custody awaiting trial.
[8]At [10].
It was argued for Mr Walker-Oaariki that he had a viable defence to the charge of strangulation, in that the complainant did not allege she was strangled. One of the independent witnesses did not specifically refer to strangulation but observed Mr Walker-Oaariki with his hand around the complainant’s throat and pushing her backwards and later holding her by the scruff of her collar.[9]
[9]At [11].
Finally, in support of the third limb in Whichman, Mr Walker-Oaariki filed affidavit evidence indicating that the main factor driving his decision to enter guilty pleas was to avoid serving a longer time in custody.[10]
[10]At [12].
The Judge, however, found that the appeal against conviction could not succeed. The appeal in the High Court focused on the failure by trial counsel to advise Mr Walker-Oaariki of the availability of a sentencing indication. However, the Judge noted “a failure to do so, on its own, will be insufficient to give rise to a miscarriage of justice”, citing T (CA662/2012) v R.[11] Furthermore, Mr Walker-Oaariki was “not unfamiliar with the concept of a sentence indication”.[12]
[11]At [13] citing T (CA662/2012) v R [2013] NZCA 550 at [35]–[36].
[12]At [14].
The Judge also rejected the suggestion that the case was comparable to the situation in T (CA662/2012) or Whichman, saying:[13]
It is clear that in both these cases the issues identified went to the heart of the guilty plea whereas in the present case it is clear that Mr Walker-Oaariki was simply disappointed in the ultimate sentencing outcome.
[13]At [15].
The Judge held that erroneous advice as to the length of a sentence was insufficient to amount to a miscarriage of justice, saying unlike the circumstances in T (CA662/2012), where a plea was induced under the mistaken assumption that no tenable defence existed, “incorrectly predicting the likely sentencing outcome does not impugn the guilty plea to the same degree”.[14]
[14]At [16].
In any event, the Judge held that Mr Walker-Oaariki fell well short of satisfying the second limb of the threshold test in Whichman, noting there was an independent witness who observed Mr Walker-Oaariki strangling the complainant and another who recorded that he “grabbed the female around her neck with one of his hands”.[15] In those circumstances, and noting his previous incidents of violent offending against his partner, her subsequent letter exonerating him of all charges would have likely received little weight at trial. He held there was, at best, a “slim chance of acquittal”.[16]
[15]At [17].
[16]At [19].
Finally, in respect of the third limb, the Judge said it was “difficult to identify any credible evidence that Mr Walker-Oaariki would not have entered a guilty plea anyway”.[17] For those reasons he dismissed the appeal against conviction.
[17]At [20].
In addressing the appeal against sentence, the Judge accepted the starting point was too high but the discounts which had been given for rehabilitative efforts and willingness to engage in restorative justice could not be sustained. The end sentence therefore was not in error and the appeal against sentence was dismissed.[18]
Grounds of appeal
[18]At [33]–[38].
Mr Walker-Oaariki advances this application for leave for a second appeal against conviction solely on the basis he received erroneous advice as to the possible length of sentence he would gain on a guilty plea and, following Su’a v R,[19] and Whichman,[20] this resulted in a miscarriage of justice. He does not pursue the appeal against sentence.
[19]Su’a v R [2017] NZCA 439.
[20]Whichman v R, above n 7.
Applying the criteria in Whichman, Mr Walker-Oaariki says the High Court failed to take account of the following factors:
(a)There was unchallenged evidence that the erroneous advice induced the entry of the plea.
(b)There was a genuine prospect of acquittal.
(c)There was credible evidence that, but for the erroneous advice, a guilty plea would not have been entered.
Counsel for Mr Walker-Oaariki, submits that in distinguishing this case from Whichman, the High Court set “too high a threshold at which advice on plea can be found erroneous”, noting that in Su’a, this Court commented that:[21]
We note that the stated fourth category in Merrilees does not specifically refer to advice as to sentence but we think it implicit in the reference to “other outcomes”, and in the Court’s observation regarding the reasons for pleading, that miscarriage of justice for the purposes of a conviction appeal following a guilty plea could include erroneous advice regarding sentencing outcomes.
[21]Su’a v R, above n 19, at [11].
Accordingly, counsel for Mr Walker-Oaariki submits that overly optimistic advice as to the length of sentence is an error capable of undermining the basis on which a guilty plea was entered. Furthermore, he submits that the erroneous advice need not be presented as an unequivocal assurance to the defendant, saying that the facts of Whichman demonstrate that a misapprehension shared by trial counsel and the defendant can constitute an error striking at the validity of the guilty plea.
Counsel for Mr Walker-Oaariki also maintains that there was a genuine prospect of acquittal, because the independent witnesses could not comment on whether the complainant’s breathing or blood circulation was affected which is an element of the offence of strangulation.[22]
[22]Crimes Act, s 189A.
Finally, it is submitted that the affidavit evidence of both Mr Walker-Oaariki and his trial counsel, Mr Silich, support the position that Mr Walker-Oaariki pleaded guilty based on the advice as to sentence. Mr Silich’s affidavit confirms that Mr Walker‑Oaariki’s primary consideration was time spent in custody.
Discussion
The application for leave to bring a second appeal is brought solely on the grounds that a miscarriage of justice may have occurred. There is no suggestion that the appeal involves a matter of general or public importance and we do not consider this ground further. It turns on whether it is arguable that a Whichman-style error was made by trial counsel when he estimated a likely sentence length of 14 to 18 months, when in fact the sentence imposed was 26 months’ imprisonment.
We do not think this is seriously arguable. The affidavit evidence of Mr Silich says:
3.5I did advise that a potential end sentence, after factoring in a guilty plea discount, of 14 to 18 months was possible. … I did tell Mr Walker-Oaariki that these figures were estimates only and that dependent on a number of factors, the sentence could be longer.
Other factors, including the potential release date, and the possible new hearing date were all described by Mr Silich as “possibilities”.
We accept that Mr Walker‑Oaariki said:
61I only pled guilty to the strangulation charge because I thought that I would be released shortly. Had I known what my sentence was going to be, I would have continued to defend the charge.
However, while Mr Walker-Oaariki was expecting to receive a short term of imprisonment and would be released shortly in line with his trial counsel’s advice, this simply cannot reach the threshold of error which would warrant setting aside the guilty plea.
In Whichman, the error was a misunderstanding of the practical effect of the sentence indication which had been given and led to the appellant being specifically advised that he would be released on a time served basis when that was not correct.[23] Similarly, in T (CA662/2012), the erroneous advice was not as to sentence length but as to the prospects of a discharge without conviction.[24]
[23]Whichman v R, above n 7.
[24]T (CA662/2012) v R, above n 11.
In R v Saik, the appellant sought to vacate his guilty pleas on the basis he had received erroneous advice as to the likely length of sentence and as to the security of his matrimonial home in subsequent confiscation proceedings.[25] The English Court of Appeal acknowledged that defence counsel’s advice was “optimistic”, but dismissed the appeal, concluding that the appellant had entered his guilty plea without pressure from counsel, the Court or anyone else.[26] The Court said that for an appeal against conviction to succeed on the basis the guilty plea was entered after erroneous advice:[27]
… the facts must be so strong as to show that the plea of guilty was not a true acknowledgment of guilt. The advice must go to the heart of the plea …
[25]R v Saik [2004] EWCA Crim 2936 at [5].
[26]At [55].
[27]At [57].
In the present case, Mr Walker-Oaariki received clear advice on the strength of the case against him. There was no defence to the assault charge, and the slimmest of prospects of success on the strangulation charge given the evidence of independent witnesses. Mr Walker-Oaariki weighed that against the advice as to potential sentence length, and the benefit of a discount for guilty pleas and the negotiated modifications to the summary of facts. While the advice as to sentence length was unduly optimistic it was not an error which went to the heart of the guilty pleas in this case.
As there is no real risk a miscarriage of justice has occurred, the threshold for granting leave to bring a second appeal is not reached.
Result
The application for leave to bring a second appeal against conviction is declined.
Solicitors:
Public Defence Service, Auckland for Applicant
Crown Law Office, Wellington for Respondent
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