Wikaira v The Queen
[2012] NZCA 182
•11 May 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA840/2011 [2012] NZCA 182 |
| BETWEEN CRUISE WIKAIRA |
| AND THE QUEEN |
| Hearing: 30 April and 2 May 2012 |
| Court: Stevens, Chisholm and Priestley JJ |
| Counsel: I Jayanandan for Appellant |
| Judgment: 11 May 2012 at 3.00 pm |
JUDGMENT OF THE COURT
A The appeal is allowed in part.
B The sentence of community work is quashed.
CIn all other respects the sentence imposed in the District Court on 16 December 2011 (including the reparation order) is confirmed.
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REASONS OF THE COURT
(Given by Chisholm J)
Introduction
On 14 December 2011 Judge Andrée Wiltens sentenced the appellant and his co-offender for assault with intent to injure and unlawfully taking a motor vehicle,[1] to which they had pleaded guilty. Two days later the case was recalled and the appellant and his co-offender were re-sentenced[2] because the Judge had transposed their names when originally imposing sentence. Whereas the appellant had originally been sentenced to 15 months intensive supervision, he was re-sentenced to five months home detention. Both the appellant and his co-offender were also sentenced to 150 hours community work and were ordered to pay reparation of $250.
[1]R v Takiari DC Manukau CRI-2010-092-19139, 14 December 2011 (first sentencing decision).
[2]R v Takiari DC Manukau CRI-2010-092-19139, 16 December 2011 (second sentencing decision).
The appellant appeals against sentence on the basis that his sentence was manifestly excessive. Issues of disparity with the sentence imposed on his co‑offender are also raised. The appellant’s sentence was suspended upon his appeal being lodged.
After hearing submissions on 30 April we stood the matter down until 2 May so that further information could be provided by the appellant’s probation officer, Ms K Wilson. In particular we wanted to understand the factors underlying her recommendation of home detention instead of intensive supervision, which had been recommended by another probation officer for the appellant’s co-offender. We discuss the detail of such factors below.
On 2 May Ms Wilson attended Court and provided invaluable assistance for which we are grateful. The appellant, and his father who had provided an affidavit, also attended.
The offending
The appellant and his co-offender were members of a group involved in a pre-meditated “car-jacking”. When the victim refused to hand over the vehicle the appellant’s co-offender, with the encouragement of the group including the appellant, punched the victim several times in the face. The victim ran away and the group drove off in the car.
Other members of the group have not been located. As a result of the assault the victim received a bruised lip. The stolen vehicle was later found by the police with damage to the front bumper.
The appellant and his co-offender
At the time of sentencing the appellant was 18 years of age. He was a first time offender with strong family support. His co-offender was one year older with previous convictions for failing to answer bail, wilful damage, wilful trespass and shoplifting.
The appellant’s pre-sentence report indicated that he was vulnerable to peer pressure and that his parents wanted to find him a job and to enrol him in a course of study. Having considered sentencing options, including intensive supervision, the probation officer said:
While Mr Wikaira has a low risk [of] re-offending and limited offending history, his current circumstances suggest immediate intervention. To address the seriousness of the offending, a sentence of Home Detention is recommended as this holds Mr [Wikaira] accountable for his actions. It also ensures that Mr Wikaira is not under the influence of his known associates. Such a sentence will allow Mr Wikaira to receive any future intervention ... and will not impede his reported aspiration to complete a relevant course of study or future employment.
A sentence of home detention, subject to stated conditions, was recommended.
Notwithstanding that the appellant’s co-offender was older, had delivered the punches, and had previous convictions, his probation officer recommended intensive supervision. Until Ms Wilson explained the underlying rationale for a home detention sentence in the appellant’s case, we had difficulty in reconciling the two recommendations.
Sentencing in the District Court
Judge Andrée Wiltens sentenced the appellant and his co-offender on the basis that when arriving at a starting point it was difficult to draw a distinction between the two offenders. He rejected any suggestion that the offending was only “a prank which went wrong”.[3] Looking at the totality of the offending the Judge adopted a starting point of 18 months imprisonment for each offender.
[3]First sentencing decision at [6].
Given that both appellants were still “relatively young” the Judge decided that rehabilitation and re-integration into the community were more important goals than holding the appellants accountable and deterrence.[4] He took into account that both had pleaded guilty, they had been on restrictive bail terms for a considerable period, and that in each case a community based sentence had been recommended. Having then noted that the individual circumstances and needs of each offender required a different sentence, the Judge imposed the sentences mentioned earlier.
[4]First sentencing decision at [7].
Without the benefit of the step by step approach mandated by this Court in R v Taueki[5] we do not have any precise understanding as to how the Judge reached the final sentences. The methodology to be applied was recently outlined in the decision of this Court in R v Clifford.[6]
[5]R v Taueki [2005] 3 NZLR 372 (CA).
[6] R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at [60].
We understand that the Judge realised that he had transposed the sentences after it was brought to his attention that the address for home detention was incorrect. He then arranged for the matter to be recalled and upon re-sentencing confirmed that he had “mixed up” the names of the appellant and his co-offender when originally imposing sentence.[7]
Another charge faced by the appellant
[7]Second sentencing decision at [1].
After we stood the appeal down it emerged that the appellant is also facing a charge, which he has denied, of being a party to arson. This offence is alleged to have occurred in July 2010, about a month before the offending giving rise to this appeal. The arson charge was laid about a week before the appellant was charged with the offending giving rise to this appeal.
Since October 2010 the appellant has been on bail subject to a 24 hour curfew. Between the time of a bail hearing in October and sentencing, the 24 hour curfew was attributable, at least in part, to the offending giving rise to this appeal. Pending trial on the arson charge, which is to take place in February 2013, the appellant remains on a 24 hour curfew unless, of course, bail is varied.
Further information provided by the probation officer on 2 May 2012
Ms Wilson explained that while the departmental tools for assessing the risk of re-offending indicated that the risk of re-offending in the appellant’s case was low, those tools only refer to static factors and the risk of re-offending is actually considerably higher. She emphasised that the appellant is very vulnerable to peer suggestion.
With reference to a possible sentence for the appellant of intensive supervision, two primary shortcomings were identified by Ms Wilson. First, assuming the 24 hour curfew pending the arson trial was relaxed, there would be inadequate restriction on the appellant’s movements and, in any event, an absence of monitoring. Secondly, although rehabilitation programmes were highly desirable, in the appellant’s case he would not be eligible for those programmes as part of an intensive supervision sentence and due to the perceived low risk of him re-offending.
On the other hand, those difficulties would be overcome if the appellant was serving a sentence of home detention. Ms Wilson also explained that the conditions imposed in the District Court would run on for a further six months after the sentence of home detention was completed. Her view was that home detention would best serve the appellant’s needs for rehabilitation, particularly given a supportive home environment.
Discussion
Our initial concerns about the sentence of home detention were allayed by the new information provided by Ms Wilson. Subject to the comments that we will shortly be making about the sentence of community work, we are now satisfied that the sentence of home detention was not manifestly excessive or wrong in principle. To the contrary it will achieve the purpose in s 7(1)(h) of the Sentencing Act 2002 of assisting the appellant’s rehabilitation and reintegration. We are also satisfied that there is no disparity between the appellant’s sentence of home detention and his co-offender’s sentence of intensive supervision requiring the intervention of this Court.
On the other hand, we are satisfied that in all the circumstances the additional sentence of 150 hours community work is manifestly excessive. This reflects two factors. First, for over a year prior to sentencing the appellant had been on a 24 hour curfew which was, at least in part, referable to the offending under consideration. Secondly, Ms Wilson acknowledged that this component of the sentence might cut across the rehabilitative programmes. We also believe that it would be desirable for the appellant not to be exposed to the influences that might arise if he was working with other offenders.
Result
We allow the appeal in part by quashing the sentence of 150 hours community work. In all other respects the appeal is dismissed and the sentence imposed in the District Court on 16 December 2011 (including the reparation order) is confirmed.
Solicitors:
Crown Law Office, Wellington for Respondent
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