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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NZHC 1087
Decision Date: 22 May 2020

CaseChat Overview and Summary

Alain Walker-Oaariki appealed against his conviction and sentence following his guilty plea to charges of strangulation and assault against a person in a family relationship. The appeal was brought to the High Court of New Zealand. The appeal against conviction hinged on whether trial counsel's failure to advise on the option of a sentencing indication constituted an error that led to a miscarriage of justice. The appeal against sentence focused on whether the starting point and deductions applied by the sentencing judge were appropriate.

The court found that trial counsel's failure to mention a sentencing indication did not constitute an error sufficient to overturn the conviction, as there was no genuine prospect of acquittal and the appellant would likely have pleaded guilty regardless. The court also found that the starting point for sentencing was too high, but the overall sentence was not manifestly excessive given the appropriate discount for the guilty plea.

The appeal against conviction and sentence was dismissed. The application for an extension of time to bring the appeal was granted.

Orders