Wiki v The the Queen
[2022] NZCA 360
•5 August 2022 at 12.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA154/2022 [2022] NZCA 360 |
| BETWEEN | WIKITORIA MARIA WIKI |
| AND | THE QUEEN |
| Hearing: | 20 July 2022 |
Court: | Courtney, Thomas and Peters JJ |
Counsel: | C G Farquhar for Appellant |
Judgment: | 5 August 2022 at 12.30 pm |
JUDGMENT OF THE COURT
A The appeal against sentence is allowed.
BThe sentence of two years and three months’ imprisonment imposed in the District Court on the charge of wounding with intent to injure is set aside. A sentence of one year and seven months’ imprisonment is substituted.
CThe concurrent sentence of six months’ imprisonment imposed in the District Court on the charge of intentional damage is set aside. A concurrent sentence of three months’ imprisonment is substituted.
____________________________________________________________________
REASONS OF THE COURT
(Given by Courtney J)
Introduction
On 12 November 2021, Wikitoria Wiki appeared for sentencing before Judge Orchard in the District Court at Kaikohe on one charge, as a party, of wounding with intent to injure and one charge of causing intentional damage to property.[1] In the circumstances to which we refer below, the Judge sentenced the appellant to two years and three months’ imprisonment.
[1]R v Awarau [2021] NZDC 22319 [District Court judgment].
On appeal to the High Court, Brewer J determined the Judge’s sentence was not manifestly excessive and dismissed the appeal.[2] Ms Wiki was granted leave to bring a second appeal.[3]
Background
[2]Wiki v R [2022] NZHC 430 [High Court judgment].
[3]Wiki v R [2022] NZCA 319.
We have taken what follows from the summary of facts to which Ms Wiki pleaded guilty. It is important to note that what follows may be inaccurate in respect of the actions of Ms Wiki’s co‑offender, Mr Awarau, as there was a disputed facts hearing in respect of his offending.
Early in January 2019, Ms Wiki and the complainant, the appellant’s former partner, had an argument at the complainant’s property. Ms Wiki left the property but returned some 15 minutes later with Mr Awarau and another co-offender, Ms Robson. Mr Awarau is Ms Wiki’s new partner. Ms Robson, an associate, played only a minor part in the events which followed.
Armed with what was described as an axe or wood splitter, with a small blade, Ms Wiki proceeded to break every window and to dent several panels of the complainant’s vehicle. This led to the intentional damage charge.
The complainant came out of his house and picked up a metal bar about a foot long and two inches thick. A scuffle ensued between the complainant and Mr Awarau. During this scuffle the complainant was knocked to the ground. The summary of facts records that Mr Awarau stomped on the complainant’s head, chest and stomach several times, and also struck him on the head with the metal bar to which we have referred. Ms Wiki then approached and gave the axe to Mr Awarau who struck the complainant on the arm, causing a cut through to the bone which was approximately eight centimetres long. Ms Wiki herself then struck the complainant in his lower leg with the blunt end of the axe, causing bruising. This led to the wounding charge.
The complainant spent a night in hospital as a result of these assaults. He sustained the wound to which we have referred, three fractured ribs and bruising to his right hand and both legs.
District Court
The District Court Judge sentenced Ms Wiki and Mr Awarau together. Mr Awarau faced only the wounding charge.
Although the Judge acknowledged that the Crown had accepted Ms Wiki’s pleas on the basis she was not the person who had wounded the complainant, she went on to say that the disputed facts hearing had left her unsure as to which of the two had wounded the complainant, and said that she would sentence both the appellant and Mr Awarau accordingly.[4] As Brewer J said in his judgment on appeal, this was an error insofar as concerns Ms Wiki, as she was required to be sentenced on the summary of facts.[5]
[4]District Court judgment, above n 1, at [12].
[5]High Court judgment, above n 2, at [10]–[11].
Aside from this, there was some confusion as to the starting point that the District Court Judge adopted for Ms Wiki. Early in the sentencing, the Judge said that she considered a starting point of three years and six months’ imprisonment appropriate for both Mr Awarau and Ms Wiki.[6] A little later, however, the Judge said that she adopted a starting point of three years’ imprisonment for Ms Wiki, and indeed it was from a starting point of three years that the Judge calculated Ms Wiki’s end sentence.[7]
[6]District Court judgment, above n 1, at [12].
[7]At [25].
As to discounts, the Judge allowed 10 per cent to acknowledge Ms Wiki’s efforts to rehabilitate and that her offending was in part a reflection of domestic abuse she had suffered at the hands of the complainant; five per cent (equating to approximately two months) for time spent on restrictive bail conditions; and 10 per cent for the guilty pleas.[8] The Judge declined to give any discount for personal and cultural factors under s 27 of the Sentencing Act 2002.[9]
[8]At [26]–[27]. The District Court Judge did not explicitly state that she awarded Ms Wiki a discount for her guilty plea, however, as noted by the High Court Judge at [30] of the High Court judgment, above n 2, the end sentence reflects that a 10 per cent discount was given for Ms Wiki’s guilty plea.
[9]At [25]–[26].
The discounts resulted in an end sentence on the wounding charge of two years and three months’ imprisonment. The Judge imposed a concurrent sentence of six months’ imprisonment on the intentional damage charge.[10]
High Court
[10]At [29].
Ms Wiki brought an appeal on the basis that the District Court Judge’s discounts for mitigating factors were insufficient, specifically that there should have been a discount for personal and cultural factors. There was no challenge to the starting point — both counsel assumed that, notwithstanding the District Court Judge’s initial reference to a starting point of three years and six months, she had ultimately sentenced on the basis of a starting point of three years.
Ms Wiki asserted that discounts totalling 40 per cent should have been allowed, together with five months for time spent on restrictive bail conditions. Had discounts at this level been allowed, the end sentence would have been one year and five months’ imprisonment, in which case a sentence of home detention was sought.
Brewer J concluded that Ms Wiki should receive a 15 per cent discount for rehabilitation efforts, a five per cent discount for other personal circumstances, a five per cent discount for time spent on restrictive bail, and a 15 per cent discount for her guilty pleas, totalling discounts of 40 per cent.[11] However, the Judge proceeded on the basis the District Court Judge had meant to adopt a starting point for the appellant of three years and six months’ imprisonment, and had “misspoke” when she referred to three years.[12] In addition, Brewer J held that the intentional damage charge would have warranted a discrete uplift of six months, which increased the notional starting point to four years.[13] Even with the greater discounts, the higher starting point resulted in a notional end sentence of two years and five months’ imprisonment. Therefore, Brewer J determined the District Court Judge’s sentence of two years and three months’ imprisonment was not manifestly excessive.
Present appeal
[11]High Court judgment, above n 2, at [76].
[12]At [27].
[13]At [52].
Ms Farquhar, for Ms Wiki, submits that the High Court Judge erred in treating the starting point in the District Court as having been three years and six months, which neither party contended for, and by imposing an uplift for the intentional damage charge, which the Crown did not seek. As to the latter, she says that the Judge did not indicate to counsel that he was considering an uplift and, as a result, there was a breach of natural justice. As a result, the end sentence is manifestly excessive.
We accept that the Judge made an error in relation to the starting point. The District Court Judge clearly calculated the end sentence from a three year starting point. Ms Farquhar argued that the maximum starting point available, for all of the appellant’s offending, is three years’ imprisonment. With the discounts as allowed by the High Court (subject possibly to an increase in the discount for time on restrictive bail conditions) the end sentence reduces very considerably.
Although the Crown opposed the appeal, it is fair to say that Crown counsel, Mr Davie, accepted that the end sentence was very much at the upper end of the available range.
Having considered the submissions made as to how matters proceeded in the District and High Courts, we accept that a number of issues are at large. Given that, we have considered the matter afresh and have concluded the end sentence is manifestly excessive and that a lesser sentence must be imposed.
Ms Farquhar submits that the starting point for the appellant’s wounding offending should not exceed two years and six months’ imprisonment, possibly with some modest uplift for the intentional damage offending.
The guideline judgment for wounding with intent to injure is this Court’s judgment in Nuku v R.[14] The issue is where to place the appellant’s offending in terms of the three sentencing bands identified in that case. In the first instance this is to be done by identifying the extent to which the Taueki factors are present in a given case.[15] In addition, as Ms Farquhar submits, it is necessary to take into account that the appellant was for sentence as a party. In a case involving multiple offenders, the culpability of each offender must be assessed.[16]
[14]Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
[15]R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372.
[16]At [42].
Ms Wiki’s involvement comes down to this. She returned to the complainant’s property with reinforcements, in the form of Mr Awarau and Ms Robson, and she took an inherently dangerous weapon with her. Even if she intended only to use that weapon to inflict damage to property, or possibly even to protect herself, it would or should have occurred to her that a physical altercation might well ensue and that the weapon might be used. That is what happened. Ms Wiki handed the weapon to Mr Awarau, even though he seemingly had the better of the complainant at the time. And then Ms Wiki herself saw fit to hit the complainant, although admittedly with the blunt end of the axe.
The aggravating Taueki factors Ms Farquhar identified, and which she submits were present to a moderate degree, were: the use of a weapon; premeditation; entry onto the complainant’s property, even if not home invasion; and multiple attackers.[17]
[17]At [31].
Crown counsel proposed two more aggravating Taueki factors that the District Court Judge had identified: extreme violence and serious harm to the complainant. Any violent offending is serious of course but we do not think these two particular features were present in this instance, or at least not in the sense of Taueki.
Both Ms Farquhar and Crown counsel referred us to comparable authorities, all helpful even if none was entirely on all fours with this case. These authorities comprise cases in which a principal offender wounded the complainant, often seriously, with a knife, bottle or other weapon, with starting points ranging from one year and six months’ to three years and six months’ imprisonment.[18]
[18]Sadiq v R [2012] NZCA 396; Sheppard v R [2013] NZCA 639; Frelih v Police [2014] NZHC 2217; Poi v R [2015] NZCA 300; Hetherington v Police [2015] NZHC 1829; Williams v Police [2017] NZHC 1299; R v Te Huia [2018] NZHC 3039; Soud v R [2020] NZCA 149; Shihab v Police [2018] NZHC 2243; and Williams v R [2021] NZHC 1960.
By way of example, in Sheppard v R the appellant had stabbed the complainant in the neck with a screwdriver, inflicting a small puncture wound.[19] This Court reduced the starting point from three years to two years and six months’ imprisonment.
[19]Sheppard v R, above n 18.
In Soud v R, the appellant smashed a glass over the first complainant’s head and threw the remnants of the glass at the second complainant, causing glass to ricochet into a third complainant.[20] All three complainants received permanent scarring. On appeal, this Court reduced the starting point from three years and six months’ imprisonment to three years.
[20]Soud v R, above n 18.
In Williams v Police, the appellant hit the complainant in the head with a bottle, causing significant wounds to the complainant’s head and neck, proximate to arteries.[21] The appellant only desisted when subdued by pepper spray and a taser. This offending attracted a starting point of two years and six months’ imprisonment.
[21]Williams v Police, above n 18.
In Shihab v Police, to which Crown counsel referred us, the complainant required surgery after being stabbed in the abdomen and punched in the head. The complainant lost two litres of blood, spent five days in hospital, sustained damage to his liver and became depressed.[22] On appeal to the High Court, the starting point was reduced from four years to three years and six months’ imprisonment.
[22]Shihab v R, above n 18.
We consider Ms Wiki’s wounding offending was on the cusp of bands two and three of Nuku, meaning a starting point of two years or more was required. We have settled on two years and nine months’ imprisonment as the appropriate starting point. Ms Wiki may not have inflicted the wound, but she carried and supplied the weapon that did.
A modest uplift, say three months, is required for the intentional damage offending. This brings us to an adjusted starting point of no more than three years’ imprisonment.
Ms Wiki’s only challenge to the discounts allowed in the High Court is that for time spent on restrictive bail conditions. The five per cent previously allowed represents approximately two months’ imprisonment on a three‑year starting point. The appellant was on bail simpliciter from 5 January 2019 until her sentencing on 12 November 2021, so approximately two years and 10 months. Until 2021, the appellant was on a night-time curfew from 7 pm to 7 am. In 2021, this curfew period was reduced to 10 pm to 6 am. Ms Farquhar advises, without comment from the Crown, that Ms Wiki did not breach the curfew condition.
Ms Farquhar submits that a greater discount is required to reflect these bail conditions. She referred us to Kreegher v R, in which this Court granted a six‑month discount to a defendant who was subject to a 12-hour curfew for three years, without breach.[23] In addition, for reasons we need not address, the effect of the 12‑hour curfew was to separate Ms Wiki from her youngest child. This was regrettable, for both mother and child. Ms Farquhar submits that we should grant a five-month reduction in place of the five per cent.
[23]Kreegher v R [2021] NZCA 22.
We consider that a four‑month discount would adequately reflect the bail conditions. A starting point of three years’ imprisonment, less the discounts other than for the bail conditions (35 per cent) would bring the sentence to one year and 11 months. A further reduction of four months to reflect the effect of the bail conditions brings the end sentence to one year and seven months’ imprisonment.
In the usual course of events, this would lead to consideration of a sentence of home detention. However, Ms Farquhar informs us that Ms Wiki would prefer a short-term sentence of imprisonment, as she has already served more than eight months’ imprisonment.
Result
The appeal against sentence is allowed.
The sentence of two years and three months’ imprisonment imposed in the District Court on the charge of wounding with intent to injure is set aside. A sentence of one year and seven months’ imprisonment is substituted.
The concurrent sentence of six months’ imprisonment imposed in the District Court on the charge of intentional damage is set aside. A concurrent sentence of three months’ imprisonment is substituted.
Solicitors:
Crown Law Office, Wellington for Respondent
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