Wiki v The the Queen

[2022] NZHC 430

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2021-488-58

[2022] NZHC 430

BETWEEN

WIKITORIA MARIA WIKI

Appellant

AND

THE QUEEN

Respondent

Hearing:	2 February 2022
Counsel:	C G Farquhar for Appellant C S Taylor for Respondent
Judgment:	11 March 2022

JUDGMENT OF BREWER J

This judgment was delivered by me on 11 March 2022 at 11 am

Registrar/Deputy Registrar

Solicitors/Counsel:

Claire Farquhar (Auckland) for Appellant

Marsden Woods Inskip Smith (Whangārei) for Respondent

WIKI v R [2022] NZHC 430 [11 March 2022]

Introduction

[1]    Ms Wiki and Mr Awarau attacked her ex-partner, Mr Matthews. The attack left Mr Matthews with an approximately 8 cm cut on his right arm (which went through to the bone), three fractured ribs, and contusions to his right hand and both legs.

[2]    Ms Wiki  and   Mr Awarau  were   charged   with   intentionally   causing   Mr Matthews grievous bodily harm. This is an offence which has a maximum penalty of 14 years’ imprisonment.1 Ms Wiki was also charged with intentionally damaging Mr Matthews’s car, an offence with a maximum penalty of seven years’ imprisonment.2

[3]    On the morning of trial, the charge of intentionally causing grievous bodily harm was reduced to a charge of wounding with intent to injure.3 The maximum penalty is seven years’ imprisonment.

[4]    Ms Wiki then pleaded “guilty” to the reduced charge and to the charge of intentional damage. Mr Awarau also pleaded guilty to the reduced charge.

[5]    On 12 November 2021, Judge DJ Orchard sentenced Ms Wiki to two years and three months’ imprisonment.4 Mr Awarau was sentenced to three years’ imprisonment.

[6]    Ms Wiki now appeals her sentence. She contends her sentence is manifestly excessive because Judge Orchard did not properly take into account her mitigating personal circumstances. Ms Wiki’s submission is that her sentence should have been less than two years and that it should have been commuted to a sentence of home detention.

1      Crimes Act 1961, s 188(1).

2      Section 269(2)(a).

3      Section 188(2).

4      R v Awarau [2021] NZDC 22319.

[7]    My task is to assess whether there has been an error in Ms Wiki’s sentencing such that a different sentence should be imposed. A manifestly excessive sentence would be such an error.

Disputed facts hearing

[8]    There was a disputed facts hearing subsequent to Ms Wiki and Mr Awarau entering their pleas of guilty. That was because Mr Awarau denied the Crown’s assertion that he caused the wound to Mr Matthews’s arm by striking him with an axe. Judge Orchard concluded that the Crown had not proved that Mr Awarau caused the wound.5

[9]    Ms Farquhar, for Ms Wiki, submits that I should apply to this appeal only the facts set out in the summary of facts operative when Ms Wiki pleaded guilty. I accept Ms Farquhar’s submission. The summary of facts said:

The defendant WIKI has approached and given the axe to the defendant AWARAU. The defendant AWARAU has struck the complainant on the right arm with the axe, causing a cut right through to the bone, that was about 8 cms long. No ligaments or tendons were damaged.

[10]   Judge Orchard concluded that the Crown had not proved that allegation beyond reasonable doubt in the disputed facts hearing and so she sentenced on the basis that it had not been proved who struck the blow which wounded Mr Matthews. In my view, that was not a course open to the Judge in sentencing Ms Wiki.

[11]   Ms Wiki was not a party to the disputed facts hearing. She was not a witness at the hearing. Her position is analogous to a party who pleads guilty to a summary of facts and subsequently the trial of a co-defendant creates a different evidence picture. The evidence at the trial cannot undermine the summary of facts.6

[12]   Ms Wiki does not challenge the starting point adopted by the Judge. As I will come to, the Judge said the same starting point (three years and six months’ imprisonment) should apply to both defendants. I find that was appropriate. On the summary of facts, as part of a violent confrontation with a man already down on the

5      R v Wiki [2021] NZDC 17841.

6      R (CA628/2018) v R [2019] NZCA 135 at [33].

ground, Ms Wiki handed the axe to Mr Awarau who used it to cut the victim’s arm to the bone, and then Ms Wiki gained possession of the axe and struck the victim with the blunt end. Ms Wiki’s culpability is at least equal to Mr Awarau’s.

[13]   I see no prejudice to Ms Wiki from the Judge’s decision to adopt the same starting point for her and for Mr Awarau.

Factual background

[14]   Ms Wiki and Mr Matthews spent some years in a domestic relationship and had three children together. The relationship broke down some four years before the incident. At the time of the incident, Ms Wiki and Mr Awarau were in a domestic relationship.

[15]   On 2 January 2019, Ms Wiki visited Mr Matthews. An argument developed between them and Ms Wiki left.

[16]   Ms Wiki returned to the address approximately 15 minutes later, accompanied by Mr Awarau.

[17]   Ms Wiki got out of the vehicle in which she travelled to the address holding an axe. This was described as a splitter axe with a small blade and (about) a three feet long handle.

[18]   Ms Wiki went straight to Mr Matthews’s car. She used the axe to smash every window and she dented several panels. This gave rise to the charge of causing intentional damage.

[19]   As a result of Ms Wiki’s actions, Mr Matthews armed himself with a metal bar which was about one foot long and about two inches thick. At this time, Mr Awarau was getting out of the vehicle. He and Mr Matthews approached each other and a scuffle broke out.

[20]   Mr Matthews dropped the bar and was knocked to the ground. He went into a foetal position and Mr Awarau “stomped on his head, chest and stomach a number of times and struck [Mr Matthews] on the head with the bar”.

[21]   Ms Wiki approached Mr Awarau carrying the axe and one of them used the axe to strike Mr Matthews on the right arm causing the cut which went through to the bone. As I have said, the Judge should have sentenced Ms Wiki on the summary of facts to which she pleaded and Mr Awarau on her finding at the disputed facts hearing.

[22]   Subsequently, Ms Wiki used the blunt end of the axe to strike Mr Matthews’s lower leg causing a bruise.

[23]Ms Wiki and Mr Awarau then left the address.

The sentencing

[24]   Judge Orchard adopted a starting point of three years and six months’ imprisonment for both Ms Wiki and Mr Awarau on the charge of wounding with intent to injure. The Judge used that starting point in her assessment of Mr Awarau’s end sentence.

[25]However, when the Judge turned to Ms Wiki’s case she made an error:7

Ms Wiki, as I have already said to you, the starting point for you is three years’ imprisonment.

[26]   The Judge went on to assess Ms Wiki’s sentence using a three year starting point.

[27]   Ms Farquhar made her submissions on the basis that Judge Orchard adopted a starting point of three years. However, as I said at the hearing, I find that the Judge adopted a starting point of three years and six months and misspoke when she told Ms Wiki that “as I have already said to you” the starting point was three years. I am satisfied also that the Judge’s analysis which led her to adopt three years and six months as the starting point was appropriate to the charge. Accordingly, when I assess

7 At [25].

the end sentence I will do so on the basis that three years and six months was an appropriate starting point.

[28]   Judge Orchard discounted Ms Wiki’s sentence by 10 per cent to take account of personal factors set out in a cultural report provided pursuant to s 27 of the Sentencing Act 2002. The Judge placed particular emphasis on the domestic abuse inflicted on Ms Wiki by Mr Matthews during the period in which he was her domestic partner. The discount recognised also the post-incident efforts made by Ms Wiki to rehabilitate.

[29]   Judge Orchard gave a further discount of five per cent for the time spent by Ms Wiki on restrictive bail conditions.

[30]   The end sentence of two years and three months’ imprisonment means that the Judge also gave a 10 per cent discount for the pleas of guilty, the same discount she gave Mr Awarau.

[31]   The Judge  did  not  address  how  the  charge  of  intentionally  damaging  Mr Matthews’s car should affect the starting point. Indeed, the Judge did not address it at all. At the end of the sentencing the Judge said simply:8

… and you are sentenced to a concurrent sentence of six months in relation to the charge of intentional damage.

[32]   When I assess whether the end sentence was manifestly excessive, I will take into account that the Judge imposed no additional penalty for the intentional damage charge.

The appeal

Ms Wiki’s position

[33]The focus of the appeal is on the discounts awarded by Judge Orchard.

8 At [29].

[34]   First, Ms Farquhar submits that the discount of 10 per cent for Ms Wiki’s personal factors was not enough. Ms Farquhar submits that Ms Wiki undertook extensive rehabilitation efforts such that the writer of the PAC report said that little could be achieved from further intervention such as supervision. Ms Farquhar sets out the rehabilitative efforts as follows:

(a)Weekly sessions at a stopping violence programme at Te Whare Ruruhau o Meri, in Kaitaia.

(b)Family Restoration Programme at Te Whakaora Tangata, which [included] modules for stopping violence, communication and emotional stability. She also attended a one-on-one counselling session.

(c)Salvation Army Alcohol and Drug intervention over a period of six weeks. The letter confirming her participation notes her deep remorse for the offending.

(d)Weekly therapy at the Miriam Centre Abuse and Trauma Centre, to address her PTSD arising from domestic violence abuse by the victim.

(e)Voluntary work for the St Johns Ambulance Service who run weekend markets in Pukenui. The appellant instructs that she would help out when needed at the request of her mother, approximately once a month.

[35]   Ms Farquhar told me that Ms Wiki pursued her rehabilitation efforts while residing at the He Korowai Trust Kaitaia over a nine-month period. I saw a letter of support from the Trust noting Ms Wiki’s compliant behaviour, pleasant nature and proactive and self-directed efforts at engaging in support in the community. An updated letter provided to me confirms the Trust’s ongoing support for Ms Wiki.

[36]   Ms Farquhar submits that the s 27 report should have attracted a greater discount. Ms Farquhar points to parts of the report which include Ms Wiki’s descriptions of the severe domestic violence she suffered at the hands of Mr Matthews for a number of years.

[37]Remorse is a factor which Ms Farquhar urges the Court to recognise:

The appellant felt a deep sense of regret for the offending, which separated her from her children and affected her mother. She attended the victim’s tangihanga and was still grieving after his death. Ms Henare considered that Ms Wiki is whakamā of her offending and the impact it has had on others, indicating her genuine remorse.

[38]   Ms Farquhar submits that the five per cent discount given for time spent subject to restrictive bail conditions was insufficient.   Ms Wiki  was on  bail from    5 January 2019 until her sentencing on 12 November 2021, a period of just over two years and 10 months. Her bail conditions included a night-time curfew from 7.00 pm to 7.00 am, which was relaxed to 10.00 pm to 6.00 am in 2021.

[39]   In sum, Ms Farquhar submits that a discount of at least 20 per cent should have been awarded for Ms Wiki’s rehabilitative efforts, the nexus between the domestic abuse, resulting post-traumatic stress disorder, and the offending. Ms Wiki’s genuine remorse should be a factor in awarding a discount of this magnitude.

[40]   Ms Farquhar submits that the Judge should have awarded a discount of 20 to 25 per cent for Ms Wiki’s guilty pleas. Ms Farquhar submits that the situation which led Ms Wiki to enter her pleas was so different from the jeopardy she faced when she was charged that she should be treated, essentially, as having entered pleas at the first available opportunity. Ms Farquhar points to the following matters:

(a)Mr Matthews died of unrelated causes approximately six weeks before the trial. Judge Orchard later ruled that Mr Matthews’s witness statement was admissible as evidence in the trial.

(b)The charge of intentionally causing grievous bodily harm was reduced to wounding with intent to injure.

(c)An amended summary of facts was agreed with the Crown.

[41]   As to the discount for time spent on restrictive bail, Ms Farquhar submits that an appropriate discount is around five months (about 12 per cent).

[42]   In Ms Farquhar’s submission, the Judge should have sentenced Ms Wiki to approximately 17 months’ imprisonment and commuted it to a sentence of home detention. Ms Farquhar points out that Ms Wiki has a negligible criminal history.

The Crown’s position

[43]   On the submission that a discount should be given for Ms Wiki’s rehabilitative efforts, the Crown acknowledges that she attended programmes for approximately  10 months and that the COVID-19 Level 4 lockdown interfered with further attempts to engage with more rehabilitative programmes. However, when viewed against the seriousness of the charges, a discount greater than 10 per cent is unwarranted.

[44]   Mr Taylor, for the Crown, does not accept Ms Farquhar’s submission that the s 27 report provides a nexus between the offending and the domestic abuse suffered by Ms Wiki at the hands of Mr Matthews. First, he points out that Ms Wiki’s relationship with Mr Matthews ended approximately four years before the incident. Mr Taylor  submits  it  is  clear  that  after  an  argument  between  Ms Wiki   and   Mr Matthews, Ms Wiki left the address enraged. She returned shortly afterwards with Mr Awarau having armed herself with an axe. This shows premeditation as to what happened next.

[45]   Mr Taylor submits that the s 27 cultural report shows that Ms Wiki had a good upbringing and was not culturally disconnected. Accordingly, the 10 per cent discount for all personal factors was appropriate.

[46]   As to the guilty plea discount, Mr Taylor points out that the charge of intentional damage remained unchanged. No discount for entering a plea of guilty on the day of trial to that charge is available.

[47]   Mr Taylor submits that the reduction in the charge, without significant amendment to the summary of facts, conferred a benefit on Ms Wiki which should not be further enhanced by a credit for pleading guilty to it.

[48]Mr Taylor submits:

19.In the context of this matter, resolution occurred on the morning of   trial. In fairness to the appellant additional material from a witness was provided to the Crown on the morning of trial (this was disclosed to Defence Counsel in jobsheet form). With this information the Crown was able to identify the precise roles of the offenders in the concerted assault. The Crown particularised the charge to identify the

appellant’s role in the offending as ‘giving the co-offender Mr Awarau the axe’. Following the Crown’s identification, the appellant entered guilty pleas to the charges. However, it is noted that the availability of a disputed fact hearing was always an option to the appellant when progressing to trial.

[49]   In short, Mr Taylor submits a discount in the region of 10 to 15 per cent was available to Judge Orchard.

[50]   As for whether there should be greater credit for the time Ms Wiki spent on restrictive bail conditions, Mr Taylor cites Filoa v R as holding that whether an offender breached bail is a factor that the court could take into account in assessing a discount.9 In this case there was a breach of bail in October 2019 relating to a dispute between Ms Wiki and her sister. Mr Taylor acknowledges there was no opposition to Ms Wiki being readmitted to bail. However, he submits a discount of five per cent — effectively a reduction of two months — is sufficient.

Discussion

[51]   The first stage of the sentencing process is to determine a starting point by evaluating the defendant’s culpability for the offending itself. As I have said, I accept that the Judge’s intended starting point of three years and six months’ imprisonment on the charge of wounding with intent to injure was within the available range. However, the Judge should have also considered how the charge of intentionally damaging Mr Matthews’s car affected the starting point.

[52]   Damaging the car was a separate criminal act. Ms Wiki brought the axe to  Mr Matthews’s property. As soon as she and Mr Awarau arrived she went straight to the car armed with the axe. She used it to cause extensive damage: she smashed every window and she dented several panels. This offending required an uplift to the starting point. Considering totality, I would increase the starting point by six months to four years’ imprisonment.

9      Filoa v R [2010] NZCA 588.

[53]   The second stage of the sentencing process is to evaluate whether the starting point should be altered, up or down, taking into account the defendant’s personal characteristics.

[54]   I start with the fact that Ms Wiki’s criminal record was not relevant to the sentencing. There were no previous convictions for violence. Her minor dishonesty convictions from 2019 and 2020 simply mean that Ms Wiki could not claim credit for good character.

[55]   A defendant can be given credit for post-offending efforts to rehabilitate. Such efforts show that the defendant is accepting responsibility for their actions and has taken concrete steps to address the causes of their offending. This reduces their risk of re-offending.

[56]   I accept Ms Farquhar’s submission that Ms Wiki’s rehabilitation efforts were extensive and deserve recognition. She has no previous convictions for violence and she has now addressed the causes of her  offending.  I would  allow a  discount  of  15 per cent.

[57]   A defendant’s personal background can also warrant a discount on sentence if there is a nexus between the background and the offending such as to reduce the defendant’s moral culpability.

[58]   I have read the report on Ms Wiki prepared pursuant to s 27 of the Sentencing Act. Ms Wiki was a 38 year old mother of four children at the time of the incident. Her parents separated when she was five years old. Ms Wiki was close to both parents, she grew up in relative affluence, and she was closely connected with her Māori culture.

[59]   As a teenager, Ms Wiki began to drift. She did not like school and was a frequent truant. She left school at age 15 and worked in a number of jobs before becoming a fulltime mother at the age of 20.

[60]   Ms Wiki  was in a relationship with Mr Matthews off and on for 15 years.  Ms Wiki reports that Mr Matthews was physically and mentally abusive. The two never actually lived together, although over the course of their relationship they had three children.

[61]   Ms Wiki ended the relationship with Mr Matthews in 2014, formed a new relationship with Mr Awarau, and had a son with him.

[62]   I agree with Judge Orchard that Ms Wiki does not have the sort of deprived background that is so often causally linked to criminal offending. What happened in this case is that Ms Wiki argued with Mr Matthews, became enraged, went away and came back with a weapon and Mr Awarau. I accept that Ms Wiki’s history of domestic abuse at Mr Matthews’s hands was an operative factor in her offending.

[63]I would allow a five per cent discount for that factor.

[64]   I would not allow a discount for remorse. Ms Wiki’s remorse is over her separation from her children as a result of her offending. There is no tangible demonstration of remorse for the effects of the offending on Mr Matthews. The fact she went to his tangihanga does not justify a discount.

[65]   Ms Wiki was entitled to a discount for restrictive bail conditions. The bail period was two years and 10 months. But the conditions were not particularly restrictive. The most restrictive condition was a night-time curfew from 7.00 pm to

7.00 am, which was relaxed to 10.00 pm to 6.00 am in 2021. Judge Orchard allowed a discount of five per cent. That was within her discretion.

[66]   Finally, Ms Wiki is entitled to a discount for her pleas of guilty. Judge Orchard gave a discount of 10 per cent, which was what the Crown submitted was appropriate. Ms Farquhar’s submission is that because of changes to the evidence and the charge the Judge was obliged to give a discount of at least 20 per cent.

[67]   I accept there was a material change to the most serious charge. The issues for the trial would have been the role Ms Wiki played in the injuring of Mr Matthews, and

her intent at that time. Immediately prior to the trial the Crown received evidence which led it to accept that Ms Wiki handed the axe to Mr Awarau and that she did not herself cause the injury, although she later hit Mr Matthews with the blunt side of the axe.

[68]   The charge of intentionally causing grievous bodily harm could have continued. But the Crown agreed to reduce it to wounding with intent to injure. As Judge Orchard said, that was a material benefit to Ms Wiki. There was no change to the charge of intentional damage.

[69]   The Supreme Court in Hessell v R10 held that the value attributed to a guilty plea is assessed having regard to all the circumstances of the case. The Court of Appeal in Hessell observed that:

[44] If the charge is amended after a not guilty plea was entered, the reduction for a subsequent plea must be calculated with reference to the time then taken by the offender to enter a guilty plea. For example, if, on the morning of a trial, one charge is substituted with another and the offender immediately pleaded guilty, he or she should receive the full benefit of a guilty plea at the first reasonable opportunity.

[70]   But this is always subject to the value of the plea in the overall circumstances of the case. For example, in Heta v R11 the offender was regarded as having pleaded guilty at the first reasonable opportunity (attracting a 25 per cent discount) when she entered a guilty plea at trial immediately after the Crown amended the charging document to reduce the number of welfare fraud charges and the quantum involved. By contrast, in Aupouri v R,12 Mr Aupouri was initially charged with rape; that was downgraded before trial to one charge of sexual exploitation by sexual connection, and at the end of the Crown case he pleaded guilty to a further downgraded charge of sexual exploitation by an indecent act. Kós P observed that:

[16] … although Mr Aupouri pleaded guilty promptly once the reduced charge was offered, that did not justify a full discount. Mr Aupouri took no earlier step to express a willingness to plead to a lesser offence on the basis of lesser offending. Had that action been taken, we consider that Mr Aupouri might have been entitled to a full 25 per cent discount. The belated acceptance

10     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

11     Heta v R [2012] NZCA 267.

12     Aupouri v R [2019] NZCA 216.

of responsibility here means the maximum discount available is no more than 15 per cent.

[71]   The fact that an appellant has already derived benefit from a charge reduction is a factor to be considered. The Supreme Court in Hessell said:

[62] Guilty pleas are often the result of understandings reached by accused and prosecutors on the charges faced and facts admitted. To give the same percentage credit invariably for an early guilty plea in sentencing without regard to the circumstances can amount to giving a double benefit. For example, if the Crown agrees to accept a plea to manslaughter and drops a charge of murder in relation to offending, the acceptance of the plea can be a concession in itself. If the full credit for an early plea is then also given, the sentence may not properly reflect the offending. The only way in which the many variable circumstances of individual cases which are relevant to a guilty plea can properly be identified is by requiring their evaluation by the sentencing judge, and allowing that judge scope in light of the conclusion he or she reaches to give the most appropriate recognition of the guilty plea in fixing the sentence.

[72]   In Mathias v New Zealand Police,13 for example, it was said that “the reduction of the burglary charge to receiving was of benefit to the defendant and can have a bearing on whether a defendant should also get a full discount for a guilty plea”. Similarly, the Court of Appeal in R v Tamatea14 observed that the appellant’s discount for guilty pleas “should have recognised the benefit she received from pleading to a lesser charge and the strength of the Crown case”. A discount of 20 per cent was awarded.

[73]   But circumstances can go against refusing a full discount. In Ormsby v R,15 Mr Ormsby was charged with wounding with intent to cause grievous bodily harm. Following discussions with defence counsel, the Crown advised that it would accept a guilty plea to a charge under s 188(2). Mr Ormsby entered a guilty plea to the amended indictment at the next call on the morning of the reserve trial date. The Crown argued that, having reduced the charge, giving Mr Ormsby the full 25 per cent guilty plea discount would amount “to giving a double benefit”. However, the Court of Appeal observed:

[16] Assuming the correct charge here was one under s 188(2) (and one assumes the Crown would not otherwise have substituted that charge), it is

13     Mathias v New Zealand Police [2018] NZHC 1910 at [33].

14     R v Tamatea [2012] NZCA 443 at [27].

15     Ormsby v R [2014] NZCA 73.

difficult to see any “double benefit“ from allowing the full 25% discount for the early plea of guilty to that charge.

[74]   Having regard to all the circumstances of the plea (including the strength of the Crown case), the Court in Ormsby allowed a discount of 20 per cent.

[75]   In my view, Ms Wiki’s case is not akin to the example given by the Supreme Court in Hessell of the Crown making a concession that it would accept a plea for a lower charge. In that situation the concession itself is a benefit and awarding a full guilty plea discount can result in a “double benefit” for the defendant. In Ms Wiki’s case, additional evidence came to light causing the Crown to substitute a more appropriate charge in place of the original one (along the lines of the observation of the Court in Ormsby). Nevertheless, the Crown’s case was strong and could have warranted a conviction on the more serious charge. And there was no change to the charge of intentional damage. In these circumstances, I conclude that a discount of 15 per cent is appropriate.

Result

[76]On my analysis, the appropriate sentence for Ms Wiki is calculated as follows:

Starting point:	4 years’ imprisonment
Discounts:	Rehabilitation efforts	15%
Other personal circumstances	5%
Restrictive bail	5%
Pleas of guilty	15%
Total	40%
End sentence:	2 years 5 months’ imprisonment

[77]   It follows that Judge Orchard’s sentence of two years and three months’ imprisonment was not manifestly excessive.

[78]The appeal is dismissed.

Brewer J