Walker-Oaariki v Police

[2020] NZHC 1087

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-50

[2020] NZHC 1087

BETWEEN

ALAIN WALKER-OAARIKI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	19 May 2020
Appearances:	D Taumihau for the Appellant C R Purdon for the Respondent
Judgment:	22 May 2020

JUDGMENT OF POWELL J

This judgment was delivered by me on 22 May 2020 at 3 pm Registrar/Deputy Registrar

Date:

WALKER-OAARIKI v NEW ZEALAND POLICE [2020] NZHC 1087 [22 May 2020]

[1]                 The appellant, Alain Walker-Oaariki has appealed against both conviction and sentence after pleading guilty to one charge of strangulation1 and one charge of assault on a person in a family relationship.2

[2]                 Mr Walker-Oaariki appeals against the strangulation conviction on the basis that trial counsel erred in declining to advise him on the availability of a sentencing indication. Mr Walker Oaariki also appeals against the overall sentence imposed by Judge Jelas of two years and two months’ imprisonment on the strangulation charge, and three months’ imprisonment on the assault charge, to be served concurrently.3

[3]                 Mr Walker-Oaariki seeks leave to appeal out of time. Leave is not opposed by the Police. Given the limited delay and the fact that the delay has not resulted in any prejudice to the Police, leave to appeal out of time is granted in respect of both appeals.

Background to appeal

[4]                 On 28 June 2019 Mr Walker-Oaariki and his partner were observed by members of the public physically attacking one another in the course of an argument. Mr Walker-Oaariki pulled the victim to the ground and stood over her, pulling her hair. At this point passers-by intervened and Mr Walker-Oaariki stepped away from the victim. Not long afterwards Mr Walker-Oaariki again pulled the victim to the ground and was observed placing his hands around her throat and strangling her before punching her twice to the face. Members of the public again intervened and moved the victim away from Mr Walker-Oaariki.

The appeal against conviction

[5]                 After initially pleading not guilty, on 7 November 2019 Mr Walker-Oaariki entered guilty pleas to both charges on the morning of his Judge-alone trial. Resolution discussion were commenced after it became clear that Mr Walker-Oaariki’s trial was unlikely to be reached that day and would be adjourned until April 2020,

1      Crimes Act 1961, s 189A. Maximum penalty seven years’ imprisonment.

2      Section 194A. Maximum penalty two years’ imprisonment.

3      Police v Walker-Oaariki [2019] NZDC 25028.

noting that at that point Mr Walker-Oaariki had been remanded in custody since     29 June 2019.

[6]                 Although the prosecutor was not willing to withdraw the charge of strangulation the summary of facts was amended to confirm that initially the parties had been attacking each other and that Mr Walker-Oaariki strangled the victim for four-five seconds.

[7]                 Mr Silich, counsel for Mr Walker-Oaariki in the District Court, explained that these amendments were intended to mitigate the seriousness of the offending at sentence, and that if Mr Walker-Oaariki proceeded to trial the evidence of the two independent witnesses could lead to the offending being found to be far more serious. On the amended facts Mr Silich advised Mr Walker-Oaariki that a sentence of between 14 and 18 months’ imprisonment could be expected. Mr Walker-Oaariki then signed the amended summary of facts and guilty pleas were entered.

[8]                 Mr Silich has confirmed he did not advise Mr Walker-Oaariki of the availability of a sentencing indication as he was aware of Mr Walker-Oaariki’s desire to spend as little time in custody as possible, and thus Mr Silich concluded an indication was an unattractive option for Mr Walker-Oaariki as it would have delayed disposition of the matter.

Legal principles

[9]                 Only in exceptional circumstances will an appeal against conviction be entertained after a guilty plea.4 To qualify it must be shown that a miscarriage of justice will result if a conviction is not overturned.5 Where an appeal against conviction following a guilty plea relies on trial counsel error, a miscarriage will arise where the following threshold is met:6

(a)the advice given by trial counsel was erroneous;

4      R v Le Page [2005] 2 NZLR 845 at [16].

5      See R v Meerilees [2009] NZCA 59 at [33].

6      Whichman v R [2018] NZCA 519 at [41] – [42].

(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.

Mr Walker-Oaariki’s position on conviction appeal

[10]              Mr Taumihau, on behalf of Mr Walker-Oaariki, submits that the first limb of the test is met as Mr Silich erred by failing to provide the option of a sentencing indication during the resolution discussions. Mr Taumihau submits Mr Silich erroneously advised Mr Walker-Oaariki that if he was to plead guilty he would receive a sentence shorter than the period that he would spend in custody awaiting trial. By withholding this option Mr Walker-Oaariki entered a plea on the basis of incomplete and ultimately incorrect advice.

[11]              Mr Taumihau submits that the second limb of the test is also met as Mr Walker- Oaariki had a viable defence to the charge of strangulation, that being that he did not strangle the victim. Mr Taumihau notes in particular that Mr Walker-Oaariki has consistently denied strangling the complainant, the complainant has not alleged she was strangled. In addition, one of the independent witnesses did not specifically refer to strangulation but observed Mr Walker-Oaariki variously with his hand around the complainant’s throat and pushing her backwards, and later holding her by the scruff of her collar.

[12]              Mr Taumihau submits that the third limb is also made out and as a result a miscarriage of justice has resulted. Mr Walker-Oaariki has filed an affidavit in support of his appeal and this together with Mr Silich’s affidavit indicate that the main factor driving the decision to enter guilty pleas was to avoid serving a longer time in custody. The failure to inform Mr Walker-Oaariki of the right to seek a sentencing indication meant he was unable to make an informed decision regarding next steps.

Discussion - appeal against conviction

[13]              Mr Walker-Oaariki’s appeal against conviction cannot succeed. It cannot be said that trial counsel erred in declining to advise the appellant of the availability of a sentencing indication as the Court of Appeal in T (CA662/2012) v R held that a failure to do so, on its own, will be insufficient to give rise to a miscarriage of justice.7

[14]              It  must  be   noted   that   Mr   Walker-Oaariki,   unlike   the   appellant   in   T (CA662/2012) v R was not unfamiliar with the concept of a sentence indication but has explained in his affidavit that he did not think it was available after case review and so he did not raise it with Mr Silich.

[15]              The present situation is otherwise not comparable to  the situation in either    T (CA662/2012) v R or Whichman v R relied on by Mr Taumihau. As Mr Purdon, for the Police, has submitted the issue in T was not simply that a sentence indication had not been sought, but that a sentence indication would have clarified the informal approach to sentencing that had been agreed between the defence and prosecution and which had an impact on the resolution of the case.8 Likewise, in Whichman the sentence indication had in fact been obtained mid trial and resulted in a significant misconception on the part of Mr Whichman as to the consequences of accepting the indication.9 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.

[16]              In this regard, although the ultimate sentence adopted by Judge Jelas was longer than trial counsel advised Mr Walker-Oaariki, erroneous advice as to the length of a sentence is also insufficient to amount to a miscarriage of justice. As Mr Purdon noted it is difficult to see how erroneous advice as to the length of sentence can be relevant to an appeal against conviction following the entry of guilty pleas, because the decision on sentence is for the Judge.10 Instead, it is well understood that defendants may plead guilty for a myriad of reasons, and a disappointing sentence

7      T (CA662/2012) v R [2013] NZCA 550 at [36].

8      At [37] – [41].

9      Whichman v R [2018] NZCA 519 at [42].

10     R v Salik [2004] EWCA Crim 2936, cited with approval in T (CA662/2012) v R [2013] NZCA 550 at [31].

outcome alone is not sufficient to amount to a miscarriage of justice.11 Unlike inducing a plea under the mistaken assumption that no tenable defence existed,12 failing to advise the defendant of the availability of a sentencing indication or incorrectly predicting the likely sentencing outcome does not impugn the guilty plea to the same degree. On this basis, there is no error upon which an appeal can be properly mounted.

[17]              Even if this were not the case, Mr Walker-Oaariki would fall well short of satisfying the second limb of the threshold test as it is difficult to say that there was a genuine prospect of acquittal. Although there can be no doubt that Mr Walker-Oaariki had an arguable defence to the strangulation charge, relying upon his own and the complainant’s statements, the fact the complainant has been in a long-term relationship with Mr Walker-Oaariki which has involved two prior occasions of violent offending against her, her letter completely exonerating him of all charges would likely have received little weight at trial. In contrast there was one independent witness who observed Mr Walker-Oaariki strangling the complainant, while the other, although not as noted alleging strangulation, recorded that Mr Walker-Oaariki:

… grabbed the female around her neck with one of his hands. I think it was his left hand, but I’m not sure. His hands were big enough to go around her neck. He was walking towards her and pushing her back by the throat while slapping and punching her with his free hand.

[and later]

I saw the male on top of the female holding her down. He had pinned her shoulders with his knees. He was holding her by the scruff around her collar or her neck with one hand, I think it was his left hand.

[18]As a result Mr Silich had advised Mr Walker-Oaariki:

…given the evidence of the independent witnesses when compared to the evidence of the complainant and Mr Walker-Oaariki, a judge would likely favour the evidence of the independent witnesses, an outcome that would have had adverse consequences for Mr Walker-Oaariki.

[19]At best, there was a slim chance of acquittal.

11     T (CA662/2012) v R [2013] NZCA 550 at [36].

12 At [34].

[20]              Given that position it is also difficult to identify any credible evidence that Mr Walker-Oaariki would not have entered a guilty plea anyway.

[21]              Overall, I conclude there is an insufficient factual basis to find Mr Walker- Oaariki’s pleas of guilty were not a true acknowledgment of guilt.13 The appeal against conviction must fail.

The appeal against sentence

[22]              At sentencing Judge Jelas identified strangulation as the lead charge, and with reference to the decision of Cooke J in R v Ackland,14 identified the relevant factors of the offending to be that: 15

(a)Mr Walker-Oaariki was in a domestic relationship with the victim;

(b)he applied force to the victim’s throat for four to five seconds;

(c)the complainant did not lose consciousness;

(d)there had been prior violence toward the complainant; and

(e)both the violence and the strangulation only ended after interference by members of the public.

[23]              Ultimately, her Honour adopted a starting point of 30 months’ imprisonment for the offending on 28 June 2019.16 Judge Jelas then applied a three month uplift to take account of prior offending involving the same victim, followed by a seven month deduction to reflect rehabilitative efforts by Mr Walker-Oaariki, an indicated willingness by Mr Walker-Oaariki to engage in restorative justice procedures had they been available, and his guilty pleas.17 This resulted in an end sentence of 26 months’ imprisonment on the strangulation charge, including 5 days imprisonment imposed as

13     See R v Saik [2004] EWCA Crim 2936 at [57].

14     Ackland v Police [2019] NZHC 312.

15     Police v Walker-Oaariki [2019] NZDC 25028 at [9].

16 At [9].

17 At [10].

a result of remitting Mr Walker-Oaariki’s fines and levies,18 and a concurrent sentence of three months’ imprisonment in regard to the assault charge.19

Mr Walker-Oaariki’s position on sentence appeal

[24]              Mr Taumihau submits that Judge Jelas erred by adopting a starting point that was too high. Mr Taumihau relies on what he submitted was comparable offending considered in Houkamau v Police20 where a starting point of two years’ imprisonment was said to be stern.21 As a result, Mr Taumihau submits that a starting point of around two years is also appropriate for the present offending.

[25]              Mr Taumihau also submits that Judge Jelas erred by double counting previous violence by Mr Walker-Oaariki towards the victim, counting it both when calculating the starting point and when applying a three-month uplift for prior offending.

[26]              Mr Taumihau takes no issue with the deductions applied in the District Court, and with the adjusted starting point he submits that an end sentence of 20 months’ imprisonment should be reached.

Discussion – appeal against sentence

[27]              Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal against sentence if satisfied that for any reason, there is an error in the sentence, and a different sentence should be imposed. In any other case, the Court must dismiss the appeal.22 The measure of error that must be shown, is that the sentence is “manifestly excessive”.23 Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.24 The High Court will not intervene where the sentence is within

18 At [7] and [13].

19 At [11] – [12].

20 Houkamau v Police [2019] NZHC 2743.

21 In Houkamau, Mr Houkamau called the victim offensive names and then proceeded to grab the victim, who was lying on the couch and shove her out the front door. He then punched her in the forehead and began choking her. Mr Houkamau eventually let go of the victim’s throat and pushed her to the ground.

22 Section 250(3).

23 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26]–[27].

24 At [36].

the range that can properly be justified by accepted sentencing principles as to do so would amount to tinkering.25

[28]              Strangulation is a relatively new offence and there are only a limited number of cases involving sentencing for such offending. As noted Judge Jelas relied on the decision of Cooke J in Ackland which has provided some initial guidance. In that decision a number of factors relevant to the assessment of the seriousness of the offending were identified, including: strangulation in the context of a domestic or intimate relationship/vulnerability of the victim; threats, particularly threats to kill; loss of consciousness; multiple events; other violence/injury; significant impact on others; and breach of a protection order.26

[29]Cooke J also identified three bands of offending:

(a)band one where offending is at the lower end of the spectrum and does not involve any aggravating features. Here a starting point of between six months and two years’ imprisonment will be appropriate;

(b)band two where offending falls within the mid-range. Here a starting point of two to five years will be warranted; and

(c)band three, where offending is at the highest range, involving a number of aggravating factors. Here a starting point of between five and seven years’ imprisonment will be appropriate.

[30]                In establishing this approach Cooke J stressed that it was not the number of factors that was important but the overall nature and culpability of the offending, and emphasised that the factors simply provide a framework for making that assessment.27 This approach was also adopted by Thomas J in Houkamau and Doogue J in T v Police, however both emphasised that it was important not to let the approach to sentencing become overly mechanistic.28

25     R v St John CA404/33, 24 May 2004 at [31].

26     Ackland v Police [2019] NZHC 312 at [26](a) – (g).

27 At [31].

28     Houkamau v Police [2019] NZHC 2743 at [33]; T v Police [2019] NZHC 3375 at [35].

[31]              As Mr Taumihau noted, Houkamau also involved shoving the victim, punching the victim to the face and brief strangulation, attracting a starting point of two years’ imprisonment. However, Mr Purdon correctly identifies that the current offending is slightly more serious than that in Houkamau given Mr Walker-Oaariki engaged in two separate acts of violent offending against the complainant, both of which only ceased following the intervention of members of the public. However, I do not see the offending as involving  coercion  and  control  to  quite  the  degree  described  by  Mr Purdon. Although consideration must be given to the victim’s denial of the offending and the fact that the offending occurred in the context of a long-term relationship with a history of two prior domestic violence incidents, the lack of any clear account of how the altercation arose, its public setting, the acknowledgment of the fact that the parties were fighting and the shortness of the strangulation agreed in the summary of facts, makes it difficult to draw conclusions as to the extent coercion and control were evident.29

[32]              On the other hand in Milne v Police a 30 month starting point was identified for one charge of strangulation and one charge of assault with intent to injure, the latter being a more serious charge than the assault charge faced by Mr Walker-Oaariki.30 In that case the offending involved a similar degree of violence, however, the strangulation persisted for a longer period of time against a backdrop of a high degree of coercion and control, rendering it more serious than the current offending.31

[33]              Having regard to these comparator cases, the starting point of 30 months’ imprisonment adopted by Judge Jelas was too high, and a starting point of 26 months’

29 See Milne v Police [2020] NZHC 358 as an example of coercive control where the offender lulled the victim into a false sense of security, telling her he had calmed down and asking that she return to pick him up after leaving him on the road side. When she returned Mr Milne launched himself at the victim, head butted her to the face and then strangled her to the point where she felt as if she was about to lose consciousness.

30 It involving an intent that is absent from the charge of male assaults female.

31 See summary of Milne v Police at footnote 29. See also T v Police [2019] NZHC 3375 where the offending was also of much greater gravity. In T v Police Mr T and the victim had been in an argument the day prior and the victim had elected to leave the address. When she returned the next morning Mr T ran at the victim shouting, “if I’m going to jail, I’m going for a good reason” and as he shouted this he delivered a running kick to her forehead. The victim lost consciousness and awoke to Mr T dragging her into the house. The victim tried to escape out a window and Mr T grabbed her around the neck in a headlock and wrestled her to the bed. Eventually the victim lost consciousness. For the strangulation charge a starting point of 36 months was adopted.

imprisonment would have adequately taken into account the gravity of the offending in relation to both the strangulation and the assault charges.

[34]              There can however be no dispute that the three-month uplift for the previous violent offending towards the complainant was within range and was not double counted. Judge Jelas made it clear that in setting the starting point she was concerned only with the other violence on 26 June 2019, namely the “other circumstances which include there was associated violence in that you were punching her in the face and that you had been previously violent towards her, stopped when the witness intervened but then continued again”.32

[35]              Although the corrected starting point of 29 months’ imprisonment is significantly lower than that adopted by the sentencing judge it does not mean that the end sentence is manifestly excessive. As Mr Purdon submitted the seven-month combined discount (approximately 21 per cent) given in the District Court was “generous” and in fact on closer analysis cannot be justified.

[36]              In particular I agree with Mr Purdon that it is difficult to see on what basis  Mr Walker-Oaariki could be given a discount for either rehabilitation undertaken or a willingness to engage in restorative justice. The only rehabilitative efforts able to be identified was that while Mr Walker-Oaariki was serving an earlier community-based sentence he appears to have received some treatment for anger management and completed a Medium Intensity Rehabilitation Programme. This was of course before the present offending and it is difficult to see on what basis it demonstrates steps taken by Mr Walker-Oaariki to change his behaviour. Likewise, there is in fact no information before the court to indicate Mr Walker-Oaariki had wished to participate in restorative justice, only a reference in the PAC report that he wished to “reconcile with the victim”. Moreover, even if there had been a clearly expressed intention to participate in restorative justice it would be difficult to characterise this as genuine given the complainant’s approach to the offending in the context of previous violence by Mr Walker-Oaariki, and Mr Walker-Oaariki’s own subsequent denial of responsibility with regard to the present offending.

32     Police v Walker-Oaariki [2019] NZDC 25028 at [9].

[37]              In the absence of any discount for rehabilitative efforts/willingness to undertake restorative justice, Mr Walker-Oaariki was only entitled to a discount for his guilty plea. This came on the day his charges were scheduled to be heard in a judge alone trial and as a result the discount he is entitled to is limited. I am however conscious that although the judge alone trial was scheduled and ready to proceed it could not have taken place on that day, and I also accept Mr Taumihau’s submission that Mr Walker-Oaariki’s guilty plea followed the negotiation of the slight changes to the summary of facts noted above. Given those considerations. I therefore conclude the guilty plea discount should be slightly greater than the 10 per cent discount recognised as unexceptional for pleas at the commencement of trial.33 In the circumstances I conclude the maximum discount for Mr Walker-Oaariki’s guilty plea was 12 per cent.

[38]              It can therefore be seen that when the guilty plea discount of 12 per cent is deducted from the corrected starting point of 29 months the end sentence is 25.52 months.   Assessed against that figure the end sentence imposed by Judge Jelas of   26 months is clearly not manifestly excessive, including as it does the additional five days in custody imposed in lieu of the fines and levies. As a result, the appeal against sentence must be dismissed.

Decision

[39]The application for an extension of time to bring the appeal is granted.

[40]The appeal against conviction and sentence is dismissed.

Powell J

33     Harris v R [2018] NZCA 632 at [43].