R v Isaaka - [2014] NZHC 2608

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Isaaka

Details

AGLC: R v Isaaka [2014] NZHC 2608
Case: [2014] NZHC 2608
Decision Date: 23 October 2014

CaseChat Overview and Summary

Lewis Warren Isaaka was sentenced in the High Court of New Zealand, Auckland Registry, for his involvement in an assault with intent to cause grievous bodily harm. Isaaka was found guilty as a party to the offence, which carries a maximum penalty of 14 years imprisonment. The court acknowledged the support Isaaka had from his family and his partner, Ms Rogers, as well as the potential support he would receive from Hoana Waititi Marae upon his release. The court also considered Isaaka’s difficult background, his alcohol problem, psychiatric issues, and injuries sustained in a car accident. The pre-sentence report indicated a medium to high risk of re-offending, but the court recognised that Isaaka had been trouble-free during his time in custody and had made positive contributions in prison.

The legal issues the court needed to decide included the appropriate starting point for sentencing, considering Isaaka’s level of involvement in the assault, and the adjustments needed for factors such as his previous convictions, the fact that the offence occurred while he was already serving a sentence, and his demonstrated remorse and efforts to rehabilitate himself in prison. The court also had to consider the principle of totality, which prevents the total sentence from being excessive when the offender is already serving a term for another offence.

The court determined that the appropriate starting point for Isaaka’s sentence was three-and-a-half years, reflecting his role in assisting the principal offender but not directly participating in the assault. The starting point was increased by four months to account for Isaaka’s previous convictions and the fact that the offence occurred while he was serving another sentence. A reduction of one month was made to recognise that Isaaka had not offended since 2009, and a further reduction of nine months was given for his remorse, efforts to rehabilitate himself in prison, and positive contributions to other inmates. The cumulative sentence of three years was reduced to two years and nine months to ensure it did not exceed what would be proportionate to the offending, considering Isaaka’s lesser culpability compared to the principal offender.

Orders