Wiki v Department of Corrections

[2023] NZHC 1634

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2023-412-000036

[2023] NZHC 1634

BETWEEN

FREE USHER DANI WIKI

Appellant

AND

DEPARTMENT OF CORRECTIONS NEW ZEALAND POLICE

Respondents

Hearing:	26 June 2023
Appearances:	K S M Lawrence for Appellant C J Flatley for Crown
Judgment:	28 June 2023

JUDGMENT OF EATON J

This judgment was delivered by me on 28 June 2023 at 4.45 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

WIKI v DEPARTMENT OF CORRECTIONS [2023] NZHC 1634 [28 June 2023]

Introduction

[1]    On 2 May 2023, Free Wiki was sentenced to two years and three months’ imprisonment by Judge Turner1 on charges of burglary,2 driving while disqualified (aggravated form),3 assault with a weapon,4 intentional damage,5 receiving property (over $1,000),6 breach of community work,7 breach of intensive supervision,8 and failing to answer bail.9 He appeals that sentence.

Facts

[2]    On 17 November 2021, Mr Wiki was stopped at a random Police checkpoint driving a motor vehicle. At the time, he was a disqualified driver with four prior convictions for disqualified driving.  He appeared in court and was granted bail on   9 December 2021. A little over a week later, on 16 December 2021, he launched an unprovoked attack, on a man known to him, striking the victim four times with a pair of long-handled pruners. Mr Wiki then smashed the windscreen of the vehicle the victim was travelling in, using the same weapon.

[3]    On 5 January 2022, Mr Wiki failed to appear in court on the driving while disqualified charge.

[4]    On 30 January 2023, a Honda Odyssey car was stolen from a Napier address. At about 5 am on 2 February 2022, Mr Wiki, together with an associate, travelled in that vehicle and parked nearby the commercial premises of Just Jeans in Napier. The original registration plates on the Honda Odyssey had been removed and replaced. Mr Wiki and his associate broke into the premises of Just Jeans, causing extensive damage to the front door. Inside the property, they stole $15,000 of clothing and the cash drawer from the till containing a small amount of cash. Police attended Mr Wiki’s address and located the property stolen in the burglary and the stolen motor vehicle.

1      New Zealand Police v Wiki [2023] NZDC 8467.

2      Crimes Act 1961, s 231; maximum penalty ten years’ imprisonment.

3      Land Transport Act 1988, ss 32(1)(a) & 32(4); maximum penalty two years’ imprisonment.

4      Crimes Act, s 202C; maximum penalty five years’ imprisonment.

5      Summary Offences Act 1981, s 11(1)(a); maximum penalty three months’ imprisonment.

6      Section 246 & 247(a); maximum penalty seven years’ imprisonment.

7      Sentencing Act 2002, s 71(1)(a); maximum penalty three months’ imprisonment.

8      Section 70A(a); maximum penalty three months’ imprisonment.

9      Bail Act 2000, s 24; maximum penalty three months’ imprisonment.

[5]    On 14 May 2022, Mr Wiki breached a sentence of community work and a sentence of intensive supervision.

District Court decision

[6]    After traversing the facts of Mr Wiki’s offending, the Judge referred to his criminal history, observing that Mr Wiki had accumulated five convictions for disqualified driving and had prior convictions for burglary, failing to answer bail and receiving stolen property.   The Judge referred to a pre-sentence report recording   Mr Wiki’s explanation that he had committed the offending after he became depressed following a relationship break-up. The Provision of Advice to Courts (PAC) report recorded that, since the offending, Mr Wiki had moved away from Napier to Dunedin, to address the “unsatisfactory aspects” of his life and complete his outstanding sentences. A sentence of community work and intensive supervision was recommended.

[7]    The Judge adopted a starting point of 12 months’ imprisonment for driving whilst disqualified, observing that Mr Wiki had prior convictions in 2018, 2019 and two in 2021, but that there were no aggravating features of that offending. A 12-month starting point was adopted for the assault with a weapon, recognising this was an unprovoked attack that involved four hard blows directed at the head, followed by the intentional damaging of the car. A 20-month starting point was adopted for the burglary, the Judge observing that businesses like Just Jeans are vulnerable to burglary in the early hours of the morning. A starting point of eight months’ imprisonment was adopted for receiving the Honda Odyssey and an additional month was added for the breaches of sentence.

[8]    That gave rise to a starting point of 53 months’ imprisonment which the Judge reduced, without comment, to 36 months’ imprisonment.

[9]    An uplift of 10 per cent was applied for previous convictions and offending both on bail and sentence. A guilty plea credit of 15 per cent was allowed. With reference to personal matters detailed in two pre-sentence reports, the Judge allowed a five per cent discount for background matters, including Mr Wiki’s relative youth, a troubled background, having been born into a family of close gang involvement, and

his exposure to violence that the Judge accepted would have shaped his mindset. The Judge allowed a further 15 per cent discount in recognition of the rehabilitative steps taken by Mr Wiki. The Judge refused to allow a credit to reflect Mr Wiki having been on a 24-hour curfew for over seven months and a night-time curfew for six months, observing that Mr Wiki had breached bail on three occasions.

[10]    The Judge arrived at a net 25 per cent deduction reducing the 36-month sentence of imprisonment to one of 27 months’ imprisonment.

Principles on appeal

[11]   Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.10 As the Court of Appeal mentioned in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.11 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.12

Submissions

Appellant’s submissions

[12]   Ms Lawrence, on behalf of Mr Wiki, submits the starting point adopted for the charge of burglary should not have been greater than 15 months’ imprisonment. She refers to Bracey v Police,13 Poole v R,14 Bates v R,15 and Thomas v Police16 as cases involving more serious burglaries but similar starting points.

10     Criminal Procedure Act 2011, ss 250(2) and 250(3).

11     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

12     Ripia v R [2011] NZCA 101 at [15].

13     Bracey v Police [2022] NZHC 476.

14     Poole v R [2014] NZHC 1226.

15     Bates v R [2016] NZCA 456.

16     Thomas v Police [2020] NZHC 273.

[13]   She submits, with reference to Whitely v Police,17Jenkins v Police,18 and, Johnathan v Police19 the starting point adopted for the driving whilst disqualified should have been no more than six months’ imprisonment. She observes the absence of aggravating factors beyond the previous convictions.

[14]   Ms Lawrence submits the Judge erred in imposing a one-month uplift for the breaches of sentence. She highlights that, prior to sentencing, Mr Wiki had completed both sentences. The pre-sentence report confirmed Mr Wiki completed departmental programmes and the rehabilitative programme intervention  report  had  described Mr Wiki as being punctual, attending all group sessions and engaging appropriately.

[15]   Ms Lawrence submits the appropriate global starting point was no greater than 41 months’ imprisonment. While acknowledging the totality discount allowed by the Judge was generous, Ms Lawrence submits the adjusted starting point was not proportionate to the gravity of the overall offending. She contends for an adjusted starting point, adjusted for totality, of 32 months’ imprisonment.

[16]   As regards personal mitigating factors, Ms Lawrence submits the Judge erred in not allowing a credit to reflect Mr Wiki having been on restrictive bail conditions for over 13 months. Whilst it is acknowledged there were three breaches of bail over the period, Ms Lawrence submits that a discrete credit of five per cent was nevertheless available.

[17]   Ms Lawrence submits the five per cent discount allowed for background factors was too low and that a 10 per cent allowance was appropriate. Ms Lawrence highlights Mr Wiki’s birth into a family with strong gang affiliations and consequential exposure to violence and drugs.

[18]   Ms Lawrence submits that the appropriate end sentence ought to be under two years’ imprisonment and that a sentence of home detention is the least restrictive sentence. She highlights that Mr Wiki has an approved address and the opportunity to

17     Whitely v Police [2016] NZHC 1025.

18     Jenkins v Police [2018] NZHC 2055.

19     Johnathan v Police [2019] NZHC 1115.

return to his pre-custodial employment. She highlights that Mr Wiki has never been sentenced to imprisonment or to an electronically monitored sentence.

Respondent’s submissions

[19]   Ms Flatley, for the Crown, submits the individual starting points were appropriate and that both the totality adjustment and credits for personal factors were generous. Ms Flatley refers to authorities said to support the starting point adopted by the Judge for the burglary.20 She highlights a degree of premeditation, given Mr Wiki was in a stolen vehicle fitted with false registration plates, the value of the items stolen and the damage to the property, as justifying the 20 months’ starting point.

[20]   Ms Flatley acknowledges the 12-month starting point adopted for the disqualified driving charge was at the high end of the available range. Ms Flatley submits that the adopted starting points for aggravated disqualified driving do vary significantly, citing Jonathan v Police.21 She highlights that Mr Wiki’s previous convictions are highly proximate to each other, he having accrued three convictions in 2021. Ms Flatley submits that even if the 12-month starting point was too high, it is absolved by the totality discount.

[21]   Ms Flatley submits the uplift of one-month for the sentence breaches was appropriate and the starting point of 12 months’ imprisonment for the charge of assault with a weapon was lenient. As regards the refusal to allow a credit for time spent on restrictive bail conditions, Ms Flatley refers to the observation of the Court of Appeal in Tuikolovatu v R that an offender who wants credit for restrictive bail conditions should be able to show that he complied with them.22 Ms Flatley highlights the three bail breaches committed by Mr Wiki.

[22]   Ms Flatley submits the 20 per cent credit adopted by the Judge to reflect     Mr Wiki’s background and attempts at rehabilitation was generous. She contrasts the credit allowed with that allowed for background and addiction issues by the Supreme

20     Adams v R [2012] NZCA 515; Lawson v Police [2016] NZHC 1158; and Ikahihifo v Police [2012] NZHC 3553.

21     Jonathan v Police, above n 19, at [14].

22     Tuikolovatu v R [2012] NZCA 203.

Court in Berkland v R.23 Ms Flatley observes the Judge did not have the benefit of a  s 27 cultural report for Mr Wiki. It was therefore unclear what specific causative links exist between his background and his offending. Given the paucity of information that was available to the Judge, Ms Flatley submits the overall credit of 20 per cent to reflect background rehabilitation was generous.

Analysis

Burglary

[23]   Having regard to the authorities, and in particular the case of Bracey, I am not persuaded the starting point of 20 months’ imprisonment was outside the available range.24 It was a stern starting point but not one that was erroneous. Mr Wiki’s offending had elements of premeditation. A stolen vehicle with false plates was used to facilitate the burglary. Damage was inflicted and the value of the property stolen was significant.

Driving whilst disqualified

[24]   I agree with counsel that it is hard to discern from a review of the authorities a consistent range of starting point adopted for a fifth conviction of driving whilst disqualified. In Apiata v Police,25 a 22nd conviction led to a 12-month starting point, and in  Whitely26,  Opetaia27  and  Russell,28  starting  points  of  between  nine  and 10 months’ imprisonment were adopted for eighth offences. In Johnathan, Mander J found a starting point of 12 months’ imprisonment for a sixth conviction and the imposition of a four-month uplift for a seventh conviction was not out of range.29

[25]   Mr Wiki was stopped at a random checkpoint. There were no aggravating factors particular to the offending. I agree with Ms Lawrence that the 12-month

23     Berkland v R [2022] NZSC 143.

24     Bracey v Police, above n 13.

25     Apiata v Police [2016] NZHC 3119 at [21], the starting point for one charge was 12 months, with three six-month cumulative additions for three other offences.

26     Whitely v Police, above n 17.

27     Opetaia v Police [2015] NZHC 2532, three-month uplifts for three other driving while disqualified charges.

28     Russell v Police [2018] NZHC 858.

29     Jonathan v Police, above, n 19.

starting point adopted by the Judge did err on the high side. Having reviewed the authorities, I consider a starting point in the region of eight months’ imprisonment was appropriate.

Breach of sentences

[26]   The Judge imposed a one-month uplift to the starting point on the charges of breaching intensive supervision and breaching community work. Ms Lawrence submits this was an error and the appropriate sentence was a conviction and discharge.

[27]   I agree. The admitted breaches were committed in the aftermath of a cluster of offending that gave rise to the sentence under appeal. Mr Wiki had been compliant with previous sentences of intensive supervision and community work. Having been breached, Mr Wiki re-engaged with both sentences. Those sentences had been completed without issue prior to sentencing. The PAC report dated 16 January 2023 confirmed Mr Wiki had recently completed a departmental short rehabilitation programme (SRP) as part of the sentence of intensive supervision and that Mr Wiki “informed he is going to complete his SRP maintenance sessions.” The programme facilitator described Mr Wiki as having “engaged appropriately in all aspects of the programme. He was punctual and consistently attended sessions.” A further PAC report dated 19 April 2023 recorded that the sentence of intensive supervision had expired on 8 March 2023, that Mr Wiki had completed the maintenance sessions, and recommended a sentence of intensive supervision and community work.

[28]   I consider the entry of convictions for the breaches was the appropriate response for that offending. Mr Wiki’s positive re-engagement and successful completion of both sentences mitigated the breaches. That the same sentences were recommended in the PAC report highlights that the breaches were low level.

Other offences

[29]   No issue is taken with the starting points adopted for the other offending. I agree with Ms Flatley, a higher starting point could have been adopted for the assault with intent to injure.

Totality deduction

[30]   The Judge allowed a totality deduction of about 33 per cent. That was generous and must be recognised in any adjustment to reflect the view I have reached in relation to the starting point for the disqualified driving and the uplift for the sentence breaches. I fix the adjusted starting point at 35 months’ imprisonment.

Personal considerations - aggravating

[31]   The Judge uplifted the starting point by 10 per cent to reflect Mr Wiki had recent prior convictions for burglary and receiving and had offended whilst on bail and subject to sentence. No issue is taken with that uplift on appeal.

Personal consideration - mitigating

[32]   Ms Lawrence contends that the five per cent credit to reflect Mr Wiki’s personal background was inadequate. I agree with Ms Flatley that it is appropriate to consider this issue having regard to the credit of 20 per cent the Judge allowed for both personal background and rehabilitation.

[33]   Whilst Ms Flatley observes that there was no s 27 cultural report, I do not consider that factor to be significant. The material available to the Judge, including the pre-sentence report and an alcohol and drug report, provided sufficient information for the Judge to understand that Mr Wiki’s personal background was a relevant factor in considering how and why he came to offend. I agree with the Judge that having a father who was the President of the local chapter of the Mongrel Mob and being exposed to drugs and violence from an early age, has shaped Mr Wiki’s mindset. But it also set him on path over which I accept he was highly vulnerable.

[34]    Ms Lawrence raises Mr Wiki’s age as a relevant personal factor. Mr Wiki was aged 21 years at the date of his offending. The Judge described Mr Wiki as being at the upper end of the youth range and observed that he was not a first offender. The Judge was right to describe Mr Wiki as being at the upper end of the youth range.

[35]   Relevantly, Mr Wiki had not previously been sentenced to a term of imprisonment. He had not been either sentenced to, or subject to, electronic

monitoring. The offending did have the hallmarks of the impulsivity and vulnerability of a younger person. It occurred over a period of weeks in what was described by the pre-sentence author as a “cluster” of offending. Mr Wiki explained that he responded poorly to a relationship break-up. The assault offending was unprovoked and seemingly impulsive. The burglary was committed in the presence of a co-offender by smashing the front door of commercial premises at around 5 am and is offending commonly associated with youthful offenders.

[36]   In my view, a discrete credit for youth was available. On the other hand, the credit of 15 per cent for rehabilitative efforts was generous. The offending had occurred in Napier. It was very much to his credit that Mr Wiki had resolved to leave Napier and relocate to Dunedin with a view to sever ties with negative influences and make a fresh start. In Dunedin he had secured employment. He had not reoffended. He had completed his sentences of intensive supervision and community work and impressed Corrections such that the same sentences were being recommended.

[37]   Standing back, I consider the 20 per cent allowance to reflect personal background factors and rehabilitation is not inadequate. In coming to that view, I am mindful that Mr Wiki’s youth is relevant in determining if a deduction to reflect time spent on restrictive bail conditions ought to have been allowed.

Credit for restrictive bail conditions

[38]    For seven months a condition of Mr Wiki’s bail was a 24-hour curfew. For six months he was subject to a night-time curfew. The Judge would not entertain a credit because Mr Wiki had breached bail conditions on three occasions.

[39]   Any curfew imposed on a young person is a significant restriction. A 24-hour curfew, and particularly one that is not monitored electronically gives rise to a very significant restriction. In effect, Mr Wiki was subject to an unmonitored sentence of home detention. A discrete credit to reflect such restrictive bail conditions over a prolonged period is orthodox. What then of the bail breaches?

[40]   Having regard to Mr Wiki’s age, his personal background and that he had recently engaged in a cluster of offending including breaches of sentence, I do not

think it surprising that there were bail breaches. What is significant is that Mr Wiki is not alleged to have offended on bail30 and none of the breaches were deemed sufficiently serious as to justify a revocation of bail. Rather, after seven months of 24- hour curfew, the bail conditions were relaxed to a night-time curfew.

[41]   Ms Flatley referred to the Court of Appeal decision in Tuikolovatu in support of the submission that an offender who wants credit for restrictive bail conditions should be able to show that he has complied with those conditions.31 I do not understand the observation made by the Court of Appeal to be an absolute. Rather, each case must turn on its own facts and in particular the offender’s personal circumstances and the nature of the breaches. In R v Karaitiana, a 21-year-old defendant who had been subject to a 24-hour curfew for approximately eight months without electronic monitoring was allowed a discount of eight months, notwithstanding “one or two breaches” in recognition of his compliance with the bail restrictions which the Judge described as being a significant achievement for a 21- year-old.32

[42]   Ms Lawrence highlighted that in dealing with a bail breach in January 2023, Judge Smith had warned Mr Wiki that he would be remanded in custody if he was to again breach bail. The notes made by the Judge indicate the breach related to Mr Wiki leaving his address to “get a feed”. The Judge recorded that Mr Wiki having “otherwise done well” and having not re-offended, as grounds for his re-admission to bail. Ms Lawrence highlights that Mr Wiki heeded that warning and had not breached bail between January and sentencing in May.

[43]   I disagree with the Judge that the three breaches of bail negated any allowance to reflect restrictive bail conditions. As a young man, unsupervised on bail, he spent over a year on curfew with three occasions of non-compliance. In my view some allowance was appropriate. The credit allowed by Thomas J in Karaitiana was generous. I consider a three-month credit was appropriate to reflect restrictive bail conditions.

30     After he was subject to the 24-hour curfew.

31     Tuikolovatu v R [2012] NZCA 203.

32     R v Karaitiana [2020] NZHC 91.

The final calculation

[44]   From an adjusted starting point of 35 months’ imprisonment, I apply the uplifts and credits for personal factors adopted by the Judge, giving rise to a net credit of   25 per cent. That leads to a sentence of 26 months’ imprisonment. I allow a further three months’ credit to reflect time spent on restrictive bail conditions leading to an end sentence of 23 months’ imprisonment.

Home detention

[45]   Ms Lawrence confirms that the address proposed for home detention in the PAC report remains available. Corrections considered the address to be unsuitable if Mr Wiki’s partner was residing at the address. Ms Lawrence confirms that Mr Wiki’s partner will not be. Ms Lawrence has provided references confirming that Mr Wiki’s employment remains available to him. Employment will play an important role in  Mr Wiki’s rehabilitation.

[46]   In considering whether to commute the sentence of imprisonment to one of home detention, I am mindful of s 16 of the Sentencing Act. Most particularly, I am mindful that Mr Wiki is a young man who, having regard to his personal background, is vulnerable. In my view, care needs to be taken to reduce the prospect of Mr Wiki emerging from prison a more hardened criminal that when he was taken into custody.33

[47]   In my view, the least restrictive appropriate sentence is one of home detention. Mr Wiki has served approximately two months of a sentence of imprisonment. I therefore reduce the term of home detention to one of nine months.

Result

[48]   The appeal is allowed. The sentence of 27 months’ imprisonment is quashed, and a sentence of nine months’ home detention is substituted, commencing from    29 June 2023, on all charges other than the breaches of intensive supervision and community work. On those charges Mr Wiki is convicted and discharged.

33     See Kane v Police [2012] NZHC 209 at [35].

[49]   The sentence of nine months’ home detention is subject to the condition that Mr Wiki travels directly to the home detention residence recorded in the PAC report dated 19 April 2023 and on the special conditions and post-detention conditions as outlined in that report.

...................................................

Eaton J

Solicitors:

Ministry of Justice - Public Defence Service, Dunedin RPB Law, Dunedin