R v Isaaka
[2014] NZHC 2608
•23 October 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-044-002640 [2014] NZHC 2608
THE QUEEN
v
LEWIS WARREN ISAAKA
Appearances: S L McColgan for Crown
R M Mansfield for Prisoner
Date:
23 October 2014
SENTENCING NOTES OF COURTNEY J
R v ISAAKA [2014] NZHC 2608 [23 October 2014]
[1] Lewis Warren Isaaka, you appear for sentence today having been found guilty as a party to wounding with intent to cause grievous bodily harm. The maximum penalty for that offence is 14 years imprisonment.
[2] Before I start my sentencing today I acknowledge the presence and support that you have from your family in the back of the Court, which is good to see. We do not always see it.
[3] You are now 30 years old, with a rather difficult background, having had a disrupted childhood, you have an acknowledged alcohol problem and some unspecified psychiatric issues. You sustained very serious injuries in a car accident some years ago and these have contributed to your difficulties. There is an assessment in the pre-sentence report of a medium to high risk of re-offending, but on the positive side, which suggests that it is more to the medium end of the risk scale, is the very good support that you have from your partner, Ms Rogers, and I have had a very compelling letter from her in which she describes your desire and plans to start afresh on your release from prison. I also acknowledge the letter from the Hoana Waititi Marae which will provide good support for you upon your release.
[4] I am going to start by recording the circumstances of the offending which I must do. It occurred in a cell in the middle-west landing in D block at Paremoremo Prison on 14 May 2013. You occupied a cell in that part of the landing, having been moved there a few days beforehand. The principal offender, Mr Wereta,1 and the victims, Tangi Nikoia and Tyrone Makimare, also occupied cells on the middle-west landing. Mr Nikoia had only moved to the landing that day and it appears that there
was some issue between Mr Wereta and him. Both were armed and Mr Wereta seems to have decided to make a pre-emptive strike, in anticipation of an assault by Mr Nikoia.
[5] The events that occurred on the landing were recorded in the CCTV footage, which I saw at the trial. The events that occurred in the cell where the attack took place were described in a statement by Mr Makimare to the police and by you in your evidence at trial. Shortly before the attack you and Mr Wereta were seen in the
CCTV footage standing at the grille separating the landing from the correctional
1 R v Wereta [2014] NZHC 2555.
officers’ station. Mr Wereta seemed to be tampering with the lock, presumably in an effort to delay the response of correctional officers. Mr Wereta went into cell 3, your cell. Moments later you also went in and then both of you came out and walked along to cell 5. That was Mr Makimare’s cell and at the time both Mr Makimare and Mr Nikoia were in that cell.
[6] The Crown case as it was put to the jury was that you walked out of cell 3 and along to cell 5 with Mr Wereta knowing that he was armed and for the purpose of assisting in his assault on Mr Nikoia and that you did assist him by getting Mr Makimare out of cell 5 so that Mr Wereta was free to attack Mr Nikoia. The Crown case reflected the statement that Mr Makimare had given the police. On Mr Makimare’s account Mr Wereta ran into the cell with something in his hand and punched Mr Makimare. Then Mr Wereta attacked Mr Nikioia around the face and head. He was stabbing Mr Nikoia with two shanks. Mr Makimare tried to pull Mr Wereta off but then you, Mr Isaaka, pulled Mr Makimare out of the cell telling him “Don’t try anything you’ll get stabbed up”.
[7] On your account, which you described at your trial, you were not involved at all until after Mr Wereta had attacked Mr Nikoia in cell 5. Your case was that you were just going for a walk up the landing, saw what was happening in cell 5 and deviated towards that cell but did not take any part in what was going on there. Mr Makimare came out of the cell himself and you advised him not become involved because he would only get injured too. I return to the difference between those two accounts shortly.
[8] Events after that point are recorded on the CCTV footage and there is no dispute over them; within a short time Mr Nikoia staggered out with Mr Wereta pursuing him. He was bleeding profusely. He ran past you towards the landing. You punched him, putting him on the floor. He got up and Mr Wereta stabbed him again. As you know, Mr Nikoia sustained numerous stab wounds from that assault, including a life-threatening punctured lung.
[9] As you have heard me discuss with your lawyer, I do not accept your account as it was given in your evidence or advanced today. The Crown case was put on the basis that you knew before the attack that Mr Wereta intended to attack Mr Nikoia
with a knife and you intentionally assisted. The case went to the jury on that basis and it was directed that it could only find you guilty if it accepted that position. The jury concluded, rightly in my view, that you did know what Mr Wereta intended. You stuck close to him deliberately as you went along towards cell 5. Although different interpretations might be offered as to what happened in cell 5 or around the doorway, I am satisfied from my view of the footage and from all of the evidence that Mr Makimare was in the process of helping Mr Nikoia and was pulled off by you and got outside so as to give Mr Wereta a clear run. So that is the basis on which I sentence.
[10] The primary objective in sentencing in a case like this is deterrence and denunciation. Our society does not tolerate violent offending, even if it occurs in a prison setting between inmates. I am required to apply the principles set out in the Sentencing Act 2002. Of particular relevance in this case I need to take into account the gravity of the offending, the seriousness of the type of offence and, since you were a party to Mr Wereta’s offence, I must consider the issue of parity between the two of you. I sentenced Mr Wereta earlier this week to six years eight months in
prison.2 In addition, Mr Tamihana, who had pleaded guilty to being an accessory
after the fact in relation to his disposing of the Mr Wereta’s clothes and weapons, was sentenced to 11 months earlier in the year.3
[11] The Court of Appeal has provided guidance to judges sentencing in cases of serious violence through its decision in R v Taueki.4 The present case, in which there was a level of premeditation, in which the principal offender used shanks, targeted the head and inflicted serious though not permanent injury, falls within the category of cases described by the Court of Appeal as band 2 attracting a starting point of between five and ten years in prison. In sentencing Mr Wereta I took a starting point of nine years as reflecting the serious nature of his offending.
[12] Of course, the starting point I take for you must be significantly less. You knew what Mr Wereta intended and you assisted him by making sure that Mr
Makimare did not interfere in his attack on Mr Nikoia. And you also punched Mr
2 R v Wereta, above n 1.
3 R v Tamihana [2014] NZHC 90.
4 R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372 (CA) at [57].
Nikoia after he had staggered out of the cell badly injured. However, apart from that punch you did not participate directly in the attack and any starting point must reflect that fact.
[13] There appear to be no cases involving facts closely similar to this case. There are, however, some decisions involving the liability of parties to violent offences in which the party was not directly involved in the assault.5 In R v Sanson and R v Goss the defendants were involved in a group attack. Mr Sanson did not participate in the violence but was involved in planning and stood outside yelling encouragement to the principal offenders. Mr Goss was involved in the planning of
the same attack. Starting points of two years two months and two years six months respectively were taken. In R v Hapi the defendant was a passenger in a vehicle carrying the principal offender who shot a man in retaliation for an earlier confrontation.6 The Judge took a starting point of four years.
[14] In my view, your offending falls somewhere between these cases. I accept you were not the instigator of the attack on Mr Nikoia. I acknowledge the submissions of your counsel as to the difficulties facing inmates, in particular you in this situation, the pressure from other inmates and the need to avoid making enemies. I also accept your counsel’s submissions about the dynamics on the middle-west landing that day that would have seen you at real disadvantage in your dealings with Mr Wereta. I accept that you would have felt under pressure and unable to refuse a direction for assistance or a request. However, none of those factors can make what was a serious violent offence anything different and your involvement went beyond encouraging Mr Wereta. In these circumstances I consider that the appropriate starting point is three-and-a-half years.
[15] You have previous convictions for violent offending which warrant an increase in the starting point. I must increase the starting point, too, to reflect the fact that this offending occurred while you were already serving a sentence. But, on this latter point, as I have said, I acknowledge the particular difficulties that you
faced. I uplift the starting point by four months to reflect both factors.
5 See eg R v Sanson HC New Plymouth CRI-2009-021-1570, 10 August 2010; R v Goss HC New
Plymouth CRI-2009-021-1570, 28 October 2010.
6 R v Hapi [2004] NZCA 64.
[16] Mr Mansfield has submitted that I should allow a modest reduction to reflect the fact that you have not committed any offence since 2009. You have, of course, been in custody during that period so one would hope that you would not be offending. But I recognise the reality that offending is not uncommon in a custodial setting and the fact that you have managed to avoid trouble in that period does deserve some recognition. I note that a one month reduction was given on Mr Tamihana’s sentence for the same reason and I am prepared to do the same.
[17] There are also other mitigating factors that I will take into account. These are your obvious remorse. I have your letter which I have carefully read and I accept that you are remorseful and that you did find yourself in an incredibly difficult situation that day. I can see from the certificates that you have provided that you have been making use of your time in prison, completing courses in maths and English, courses in parenting and life skills and you are clearly motivated to make a better job of things on the outside than you did previously. You have provided a letter from another inmate testifying to your kindness, your support of other prisoners during your time in prison. And that is something I think that does warrant recognition, that you have made a positive contribution, not a negative one, in your time in prison. I therefore am going to give a further reduction of nine months on account of those various factors.
This means a final sentence of three years which would be served cumulatively on your current sentence. The cumulative nature of the sentence, though, does raise a final point that Mr Mansfield asks me to consider, and that is the question of totality. You are currently serving a five year term of imprisonment, that would mean a total
term of eight7 years on a three year sentence served cumulatively. I approach the
issue of totality with some caution. The Court of Appeal has made it clear that a stern response is required to offending in a prison setting and that that would be undermined if sentences for such offending were adjusted to reflect the fact that the offender was already serving a sentence.8 But I am very conscious of your culpability in this case being significantly less than the principal offender and I do
consider that a combined total of eight years would be too much for the offending in
7 During the sentencing hearing I inadvertently referred to nine years and have corrected this.
8 R v Tryselaar [2012] NZCA 353.
this case. I am prepared to make a further adjustment of three months, bringing the final sentence to two years nine months.
Addendum
[18] Subsequent to the sentencing hearing I received advice from Mt Eden Mens’ Prison that Mr Isaaka had, in fact, completed the sentence he was serving in relation to previous offending some months prior to the trial for which I have just sentenced. This has meant that, rather than being a serving prisoner for most of this year, Mr Isaaka has been on remand in respect of the current offending since 26 March 2014.
[19] I have now had a telephone conference with counsel and am satisfied that the sentence I imposed was not erroneous. There were three particular issues that were concerning me. The first was that I had imposed the sentence cumulatively and, as a result, allowed a small deduction for totality. Mr Mansfield and Mr McColgan were both in agreement that because Mr Isaaka has been on remand since the expiry of his previous sentence the sentence I have imposed will effectively run from that date. As a result, that sentence will in effect be served cumulatively upon the previous sentence so that the reduction for totality is justified. Nor is there any need to make a specific allowance for time served on remand since the time Mr Isaaka serves in relation to the present sentence will be calculated from the first day spend on remand.
[20] Mr Mansfield and Mr McColgan were both satisfied, as am I, that Mr Isaaka is not in any worse position as a result of the sentencing having proceeded on the misapprehension that he was still serving the previous sentence. As a result, there are no steps that need to be taken but I direct that this addendum be attached to the
sentencing notes.
P Courtney J
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