R v Waititi
[2015] NZHC 1211
•3 June 2015
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI-2013-087-1381 [2015] NZHC 1211
THE QUEEN
v
PARARAKI KINGI WAITITI
Charges:
Plea:
Discharging firearm with intent;
Wounding with intent to injure
Guilty
Counsel:
G C Hollister-Jones for Crown
G R Tomlinson for PrisonerSentenced:
3 June 2015
SENTENCING NOTES OF BREWER J
Solicitors: Ronayne Hollister-Jones Lellman (Tauranga) for Crown
Gowing & Co (Whakatane) for Prisoner
R v WAITITI [2015] NZHC 1211 [3 June 2015]
Introduction
[1] Mr Waititi, you appear for sentence on one charge of discharging a firearm with intent to injure1 and one charge of wounding with intent to injure.2 You pleaded guilty to these charges on 17 April 2015. The maximum term of imprisonment for both offences is seven years.
[2] You were initially charged with attempted murder and with wounding with intent to cause grievous bodily harm. The Crown has chosen to withdraw those charges.
Facts
[3] During 2013, when you were 18 years old, you lived with your father on an isolated rural property in the Waihau Bay area. Your father required you to work on the property and, if you displeased him, became angry with you. He would quite frequently shout at you and verbally abuse you.
[4] On 28 August 2013, in the afternoon, your father told you to collect wood and pinecones to keep the fire going. For the next two hours your father kept on working at his chores believing you had gone to gather firewood. In fact, you were in the house bus resting.
[5] At about 4:00 pm, you approached your father who was in his hothouse tending his cannabis seedlings. You asked him for the pruning tool which you would need to cut the branches with the pinecones. This meant your father found out that you had not been doing as he had instructed. He became very angry with you. He yelled at you, swore at you and threatened you.
[6] You left and went to your father’s bedroom where you got his .22 calibre semi-automatic rifle. You had been hunting with your father in the past and he had shown you how to use the rifle. You took it out of its case. You knew it to be
loaded. You took it back to the hothouse where your father was working.
1 Crimes Act 1961, s 198.
2 Section 188(2).
[7] Your father had his back to you and did not know you had returned. You stood approximately five metres away from your father, pointed the rifle at his back and shot him five times in the back, arm and side. He fell to the ground. You then threw the rifle away and picked up a hammer which was lying nearby. You attacked your father with the hammer, striking him two to three times over the head. Your father raised his arms to protect his head and you struck him twice with the hammer in his body. He then moved his arms to protect his body and you again struck him over the head with the hammer.
[8] You were heard to be yelling “Die! Die! Die!” while you assaulted your
father with the hammer.
[9] As a result of your attack, your father was lying on the ground unconscious and gurgling. A family member who lived nearby was attracted to the scene by the yelling and found your father on the ground unconscious with you bending over him. An ambulance was called.
[10] It is your tremendous good fortune that your father did not die as a result of your attack. Instead, he was hospitalised for four days and admitted to the Intensive Care ward. He had a total of five bullet wounds to his back, arm and side. Bullets lodged in his body near his spine and in his abdomen. There were two bullet wounds to his right arm, causing a fractured olecranon and flesh injuries.
[11] Your father underwent surgery. The bullet fragments in his arm were removed but the surgeon was unable to remove the other bullets because of their location near the spine and liver.
[12] The attack with the hammer resulted in three wounds and two contusions to
your father’s head.
[13] Initially, you did not admit to the use of the rifle. It seems that family members who first came on the scene thought that a pitchfork had been used to cause the wounds and you adopted that suggestion. However, in your second interview with the Police you accepted that you shot your father. You said that you got the rifle
because you wanted to scare your father after he had yelled at you. You admitted shooting him twice in the back and hitting him with the hammer on his head and stomach. You said you snapped and lost it and wanted to hurt your father. You denied wanting to kill him. You showed remorse for your actions while being interviewed and you were visibly upset.
[14] You were charged as a result of the attack on your father. But your father was charged also because the Police discovered his cannabis-related offending. He was sentenced to a term of imprisonment and he died in prison last year.
Asperger’s Syndrome
[15] The biggest difficulty in sentencing you, Mr Waititi, is that you suffer from Asperger’s Syndrome. I have no doubt it is because you suffer from Asperger’s Syndrome that the Crown has withdrawn the charge of attempted murder and has accepted pleas of guilty to two charges which would otherwise be inexplicable in the circumstances I have outlined.
[16] I have had the benefit of reading three reports on your condition. One is by Ms Breen, a clinical psychologist who was instructed by your lawyer. The second is by Dr Nuth, a clinical psychologist who peer reviewed Ms Breen’s report. Finally, I have the report of Dr Barry-Walsh, a consultant forensic psychiatrist who both interviewed you and reviewed the reports of Ms Breen and Dr Nuth. I have been assisted by all three reports, but I found Dr Barry-Walsh’s report to be of particular help given that he could comment on the reports of the other two health professionals against a background of having interviewed you. I will come shortly to how I will take into account your Asperger’s Syndrome in deciding what sentence should be imposed on you.
Approach to sentencing
[17] I am satisfied that because the two charges arose out of the same incident, I must impose concurrent sentences. That means you will serve the two sentences I impose on you at the same time.
[18] In addition, because the offences were linked in circumstance and time, require proof of an “intent to injure” and have the same maximum penalty, it would be repetitive for me to go through the same sentencing analysis for each charge.3
What I am about to say relates to the sentence you will receive for both of the charges.
[19] Mr Waititi, your sentencing today will be a three-step process. The first step is to look at the seriousness of your offending. To do that I have to take into account the principles and purposes of sentencing. As part of that exercise I have to consider similar cases to yours to see what others have been sentenced to for similar kinds of offending. This first step will result in a starting point of imprisonment. That starting point takes into account all of the relevant factors relating to the offending itself, but does not take into account any aggravating and mitigating factors that are personal to you.
[20] The second step in the sentencing process today will be to look at the factors that relate to you personally. In this case, I will be doing this in order to see how far the starting point of imprisonment should be reduced. In doing so, I will end with your actual sentence.
[21] The third step will be to look at the totality of your offending as a check on the end sentence.
Seriousness of your offending
[22] Mr Waititi, I will now consider the seriousness of your offending.
[23] The Crown and your lawyer agree that because both of the crimes to which you have pleaded guilty require proof of an intent to injure, I should consider a case
3 Such an approach was taken by Lang J in R v Motuliki HC Auckland CRI-2006-092-18270,
4 March 2008 where the defendant was sentenced for two charges of wounding with reckless disregard for the safety of others and one charge of discharging a firearm with reckless disregard for the safety of others for events arising out of the same circumstances. Both charges had a maximum penalty of seven years imprisonment and required proving “reckless disregard of the safety of other”. This is also the approach that counsel took in their submissions to me on Mr Waititi’s sentence.
called Nuku v R4 which sets out sentencing bands for the different types of offending that can amount to wounding with intent to injure.5 I have to work out the aggravating features of your offending. Then I place you in a band that sets a starting point for your sentence based on the number of aggravating features present.
[24] I identify the aggravating features of your offending to be:6
(a) Your offending involved the use of extreme violence. You shot your father in the back five times with a .22 calibre rifle and then attacked his head and body with a hammer.
(b)Your offending caused serious injuries. Your father sustained a total of five bullet wounds to his back, arms and side. A small difference in the line of travel of the bullets could have resulted in your father’s death. Your father also received three wounds and two contusions to his head as a result of being hit by the hammer. The severity of the internal injuries meant that your father was admitted to the Intensive Care ward. But I acknowledge that your father was discharged from hospital within a few days, albeit with bullets still lodged in his body.
(c) You used two weapons to attack your father. You attacked him with a .22 calibre rifle and a hammer. The rifle is inherently lethal.
(d) You attacked your father in the head.
[25] These four aggravating features place you in band three of the Nuku case. This requires me to set a starting point of somewhere between two years and seven
years’ imprisonment.7
4 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
5 There is no sentencing tariff for offending under s 198 of the Crimes Act 1961, see Katene v R
[2010] NZCA 394 at [20].
6 The decision in Nuku v R, above n 4, adopts the same listed features in R v Taueki [2005]
3 NZLR 372 (CA) that contribute to the seriousness of the conduct and criminality involved in a
GBH offence.
7 Nuku v R, above n 4, at [38].
[26] I will now consider similar cases to yours to work out where I should place you in that band.
[27] I have been unable to find any cases where the lead charge was discharging a firearm with intent to injure. The Crown submits that I should compare your offending with that of the defendants in R v Motuliki8 and R v Templeton v Ors9 to help me to set an appropriate starting point. In these cases, the defendants were charged with a different offence to you, that of discharging a weapon with reckless disregard to the safety of others. The offence has a maximum penalty of seven years’ imprisonment, but involves a lesser standard of intent, namely recklessness. Despite this difference, I believe that these cases provide a useful comparison.
[28] In R v Motuliki, the offender was for sentence on two charges of wounding with reckless disregard for the safety of others and one charge of discharging a firearm with reckless disregard for the safety of others. The offender was involved with a youth street gang and there were numerous confrontations between his gang and a rival gang at a birthday party. Approximately 10 people from the rival group approached the offender’s house armed with a baseball bat, a wheel brace, a spade and a metal pole. The offender fetched a double barrelled 12-gauge shotgun and ammunition from inside his house, loaded the gun and took it out onto the street where he fired it three times in the direction of the group. Two people were wounded. Lang J considered a starting point of four-and-a-half years’ imprisonment appropriately reflected the seriousness of the offending.
[29] Mr Waititi, I know that case does not sound anything like yours, but what I am trying to do is see how the Courts have regarded serious violence against the intention which is part of the charges which you face.
[30] In R v Templeton & Ors, the defendants travelled in a van to get revenge on a person and they were armed with at least two .22 calibre rifles as well as other weapons. They parked outside the person’s address and one of the occupants came
out with a torch and a baseball bat. Shots were fired from the van. The van then
8 R v Motuliki HC Auckland CRI-2006-092-18270, 4 March 2008.
9 R v Templeton & Ors CA460/05, CA480/05 and CA484/05, 6 July 2006.
drove off and was pursued by the occupant. The driver turned the van around and a volley of shots was fired at the occupant’s vehicle. Four bullets struck the vehicle and there was proof that at least 10 shots were fired from the firearms in the van. There was no injury to anyone. The lead charge for the sentencing of the driver of the van was discharging a firearm with reckless disregard. The sentencing Judge gave him a starting point of five years’ imprisonment, which was upheld by the Court of Appeal.
[31] In your case, the Crown’s lawyers argue that your offending is more serious than in the cases I have just outlined. They say the defendants in those cases were not charged with discharging a firearm with intent to injure and the cases did not involve shooting at a particular person from close range, nor did they involve a continuation of the attack on the victim with a further weapon. The Crown’s lawyers say that I should give you a starting point of five-and-a-half years’ imprisonment
[32] Your lawyer says that, in fact, your offending is pretty close to the offending in those cases. Mr Tomlinson says that the use of the firearm in those cases is worse because far greater danger was imposed upon a number of people, with multiple shots fired into either a massed group of youths or from one speeding vehicle. In Mr Tomlinson’s submission, it is your use of the hammer which brings your offending in line with these cases. He says I should give you a starting point of five years’ imprisonment.
[33] I have also considered cases where the lead charge was wounding with intent to injure. They are not directly comparable, but they give an indication how the Courts sentence where that intention is involved. I will mention two of them.
[34] In Karawana v R,10 the defendant, aged 19, had been consuming alcohol with his mother and her then partner, the victim. An argument developed between the victim and his partner. This led to an altercation. The defendant went into his bedroom and returned with a gas-operated air pistol. He shot the victim five times in the head. One pellet damaged the victim’s right eye making him permanently blind in that eye. The defendant was convicted at the District Court for wounding with
intent to cause grievous bodily harm. The Court of Appeal reduced that charge to one of wounding with intent to injure on the basis that a conviction on the grievous bodily harm charge was unsustainable. The Court held that an appropriate starting point was three years’ imprisonment. I believe that your offending is more serious. The key differences are that you used a .22 rifle and after shooting your father you took a hammer and hit him in both the head and the body. A higher starting point is required in your situation.
[35] The second case I will mention under this heading is Phillips v Police.11 The appellant, Ms Phillips, pleaded guilty at an early stage to a charge of wounding with intent to injure. One evening, when intoxicated, an argument broke out between Ms Phillips and her partner. Both parties had been consuming alcohol. Whilst Ms Phillips was trying to get to the refrigerator, her partner put his hand on her shoulder which caused her to stumble. Impulsively, she took a large knife from a knife block and plunged it into the victim’s chest. The victim survived, but he had to be evacuated to Auckland Hospital. He lost a large amount of blood which had to be drained from his chest cavity and was hospitalised for five days. Priestley J upheld the District Court Judge’s five year starting point on appeal.
[36] Mr Waititi, the injury the victim suffered in the Phillips case is of similar seriousness to that which your father suffered. I believe your offending is more serious than in Phillips because it involved two weapons, a longer, sustained attack, and involved attacking your father’s head. Your attack was less impulsive. You were shouted at by your father, you left, got the rifle and returned intending to use it.
[37] Mr Waititi, having considered these cases and the submissions of both sets of lawyers, I have come to the independent conclusion that a starting point of six years’ imprisonment is appropriate. The offence of discharging a firearm with intent to injure has a maximum sentence of seven years’ imprisonment. Actually shooting someone is not an essential ingredient of this offence. In this case, you went and obtained a rifle which you knew how to use. You had been hunting with it before. You knew it was loaded. Having obtained the firearm, you went to where your father was, approached him to within a few metres and shot him five times. I am
obliged by the charge to take it that your intention in shooting did not go beyond an intention to injure your father. However, these circumstances have to bring you towards the upper end of the offence. Then, I have to add the second phase of the attack, the assault with the hammer. Again, I have to take it that your intention did not go beyond an intention to injure, and indeed the results are consistent with that intention. But you struck multiple blows and you targeted the head. In my view, this deliberate, two-phase, attack on a single individual with a degree of premeditation warrants a starting point of six years’ imprisonment. It was only the greatest of good fortune that none of the shots was lethal.
[38] From this point, I look to see how far the sentence should be reduced.
Personal circumstances
[39] I now look at the factors that relate to you personally. I will first consider your Asperger’s Syndrome before turning to consider your age, your previous record, the remorse you have expressed and the time you have spent on bail.
[40] You were diagnosed with Asperger’s Syndrome in 2007 when you were
12 years’ old. This diagnosis was confirmed in Ms Breen’s assessment of you.12 I am required to take into account that this would have affected your understanding at the time the offence was committed.13
[41] Your lawyer and the lawyers for the Crown are agreed that it would be appropriate for me to give you a 30 per cent discount from the starting point as a result of both the provocation given by your father and the effect of your Asperger’s Syndrome on how you interpreted that provocation and how you reacted to it. Both
counsel submit that a decision called R v Tuau14 allows me to do this.
[42] R v Tuau bears some significant similarities to your situation. Mr Tuau had punched his father 15 times and stabbed him in the eye with a boning knife. He
pleaded guilty to wounding with intent to cause grievous bodily harm. The Court of
12 Formal Written Statement of Tanya Breen at [34].
13 Sentencing Act 2002, s 9(2)(e).
14 Tuau v R [2012] NZCA 146.
Appeal said the defendant was entitled to an aggregate discount of 30 per cent off the starting point due to provocation and a mental disorder that the defendant suffered. The Court found that Mr Tuau offended as he did because he was provoked by his father. His father was drinking excessively and became aggressive. From an early age, Mr Tuau had been abused by his father and was fearful of further abuse at his father’s hands. The Court concluded that the sustained pattern of violence led Mr Tuau to believe he had no other option than to assault his father. In addition, Mr Tuau suffered from schizophrenic paranoia. The Court held that Mr Tuau was less morally culpable because he only attacked his father in that way due to the provocation and his mental state.
Asperger’s syndrome
[43] The Court in Tuau said that a discount for mental illness could be given where an offender who is mentally unwell at the date of the offence, and remains so, is:15
(a) likely to be less “morally culpable” than a well offender;
(b) less requiring of a deterrent sentence; and
(c) less able to tolerate a usual sentence of imprisonment.
(i) Are you likely to be less morally culpable than a well offender?
[44] A mentally unwell person is less morally culpable than a well person where impairment materially contributed to his or her offending.16 I believe that your
15 R v Tuau, above n 14, at [40].
16In E (CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411 at [68] the Court of Appeal said: A mental disorder falling short of exculpating insanity may be capable of mitigating a sentence either because: if causative of the offending, it moderates the culpability; it renders less appropriate or more subjectively punitive a sentence of imprisonment; or because of a combination of those reasons. The moderation of culpability follows
from the principle that any general criminal liability is founded on conduct performed
rationally by one who exercises a willed choice to offend.
And in R v M [2008] NZCA 148 at [32], the Court of Appeal said:
Section 9(2)(e) has been generally seen as responding to circumstances different from those which exist in this case. The test is whether the offender's diminished intellectual capacity or understanding “materially contributed to the offending”: R v Whiu CA195/07 20 December 2007; R v Bridger [2003] 1 NZLR 636. We do not find that there was a nexus here between the appellant's mental impairment and his offending. His low intellectual function, while acknowledged, was not sufficient to compel the conclusion that he was of “lesser moral fault” because of it: R v Bridger; R v Tuia CA312/02 27 November 2002.
Asperger’s Syndrome materially contributed to your offending. Dr Barry-Walsh
describes your Asperger’s Syndrome as being “a key contributor to the offending”.17
His brief of evidence identifies that during your lifetime your father repetitively abused you, both verbally and physically. On the day of your offending, your father not only threatened you, but your mother and brother. This resulted in you feeling both fearful and angry. He explains:18
I consider Mr Waititi would have been compromised in his capacity to accurately assess the level of threat his father posed. A combination of his fearfulness and anger, in conjunction with the underlying difficulties in understanding other people arising out of his Asperger’s Syndrome, mean Mr Waititi was less able than the ordinary person to appreciate the threats made by his father were likely intemperate utterances of an habitually irascible and aggressive man. Thus I consider it likely Mr Waititi did overestimate the imminence, and especially the significance, of the threats uttered by his father and that this was a factor in his actions. Further, he is significantly compromised in his capacity to problem solve when dealing with conflict due to his Asperger’s Syndrome, even more so when highly emotionally aroused. Thus his actions in retaliating with a high level of violence are understandable and consistent with the known impairments that arise from Asperger’s Syndrome.
[45] In his brief, Dr Nuth explains that you would have difficulty in taking your father’s perspective, understanding his intentions and being able to effectively argue his case. You are also likely to have difficulty assessing your options and planning an appropriate course of action, particularly in a threatening and high stress situation.19 Dr Nuth says:20
I have some affinity with the view that because of Mr Waititi’s ASD he would find it very difficult to know how to manage such a challenging situation and perhaps remove himself from the situation by going to a neighbour or whanau member.
(ii) Are you less likely to require a deterrent sentence?
[46] I turn to consider whether a deterrent sentence is less of a requirement for you than for a well offender. This essentially requires me to ask: does your
17 Brief of Evidence of Justin Barry-Walsh at 9.
18 At 5.
19 Brief of Evidence of Dr Jon Nuth at [20].
20 At [31].
impairment increase your risk of reoffending?21 I am satisfied that your Asperger’s Syndrome will not affect the risk of a repetition of offending and does not raise issues of personal deterrence. Your pre-sentence report states that despite your offending, you are assessed as a low risk of harm to others and of reoffending.22
Ms Breen also carried out a detailed risk assessment process on you and identified that your risk of offending is very low.23
(iii) Are you less able to tolerate a sentence of imprisonment?
[47] Finally, I consider whether your impairment will make a prison sentence more severe.24 I am of the opinion that it will. Ms Breen outlined what she considered the risks of imprisonment to be:25
(a) A high risk that Corrections staff will not understand your behaviour.
In particular, that they will perceive you as a problem inmate, due to Corrections staff not recognising the impact of ASD symptoms on your behaviour, and misinterpreting fear and stress reactions as intentional non-compliance or aggression rather than, say, signs of difficulty adjusting to change or social misunderstanding.
(b)Being victimised or bullied by other inmates, due to the difficulty that you would have understanding social cues.
(c) This would result in a low likelihood of you reporting victimisation or bullying to the appropriate authorities, because you may not understand what is happening, and/or may expect those in authority to
already know what is happening.
21 In E (CA689/10) v R, above n 16, at [69] the Court of Appeal said:
All relevant considerations must, however, be taken into account in the sentencing process. Mental illness or mental impairment may affect the risk of a repetition of offending. This in turn may direct attention to issues of personal deterrence or public protection.
22 Pre-sentence Report on Pararaki Waititi at 4.
23 Formal Written Statement of Tanya Breen at [72]-[73].
24 In E (CA689/10) v R, above n 16, at [70] the Court of Appeal said, “Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
25 Formal Written Statement of Tanya Breen at [66].
(d)Becoming further withdrawn and socially isolated due to a dislike of social interactions, and possibly becoming agitated when obliged to be in group settings.
[48] I do not adopt everything Ms Breen says. For example, Corrections staff are very used to dealing with prisoners who have mental health problems. All prisoners are assessed when they are admitted and the Corrections staff who interact with them know of the assessments. But I do accept that your difficulty with social interaction would not help you in prison. On the other hand, it might be that the highly regulated environment of a prison would appeal to your need for routine.
Provocation
[49] The Court of Appeal in Tuau said that a discount could be given for reactive violence where there is an evidential basis for concluding beyond a mere likelihood that there has indeed been “prolonged abuse” and that it “materially contributed” to the offending for sentence.26
[50] Dr Barry-Walsh notes that in an interview with him you said you were commonly shouted at by your father who would say unpleasant things to you. Your father had a tendency to get physical, to shout and threaten. Threats would include to shoot you and possibly to harm others. Your father would slap, push and
sometimes kick you. This would occur most days.27 Dr Barry-Walsh identified a
key aspect of the context in which the offending occurred was that:28
Mr Waititi had been persistently mistreated by his father, likely resented and may have been fearful of him, and with this background, was triggered by his father’s abuse and threats the day in question, in the context of his Asperger’s Syndrome, into an intense rage driven by fear, which then rapidly dissipated.
26 R v Tuau, above n 14. The Court of Appeal considered the decision in R v Whiu [2007] NZCA
591 and R v Paton [2009] NZCA 155 where the Court had accepted that women for sentence for violent offending, who have suffered “battered women’s syndrome” may be entitled to discounts in the vicinity of 25 per cent. The Court held that there is no reason in principle why a man who has suffered to the same extent should be denied such a discount.
27 Brief of Evidence of Justin Barry-Walsh at 3.
28 Brief of Evidence of Justin Barry-Walsh at 9.
[51] Ms Breen’s statements draw upon evidence provided to her that your father was violent and abusive towards you, your brother and your mother. It identifies that you were aware of the fact that your father was responsible for knocking your mother’s teeth out and for the scars on her face, that your father had recently had a fist fight with your brother which resulted in him deciding not to live at your father’s
property and that your father had threatened your uncle with a Japanese sword.29
She relays that you described your father as controlling and that you were scared of him.30 Her report identifies that a number of witnesses say that during your teenage years your father had continuously been verbally abusive toward you.31
[52] Dr Nuth identifies that in your father’s statement he admitted to frequently yelling and threatening you and that in some respects he felt that he drove you to commit the offence.32
[53] This pattern of your father’s verbal and physical abuse toward your family provides enough of an evidential basis for me to conclude that it is likely you took your father’s threats to kill you and harm your family seriously, and thought at the time that there was no alternative but to attack him. There is no doubt, however, that you were motivated also by anger.
[54] For these reasons I agree with counsel that a 30 per cent discount should be given.
Other mitigating factors
[55] Both the Crown and your lawyer have identified a number of other mitigating factors.
[56] The Crown and your lawyer focus on your youth. You were 18 years old at the time of the offending. The Court of Appeal has expressed that a person’s youth is
relevant to offending in three ways:33
29 Formal Written Statement of Tanya Breen at [42].
30 Above.
31 At [44].
32 Brief of Evidence of Dr Jon Nuth at [26].
33 Churchward v R [2011] NZCA 531 at [77].
(a) age-related neurological differences between young people and adults show that young people are more vulnerable and susceptible to negative influences and outside pressures and may be more impulsive than adults;
(b) the effect of imprisonment may be crushing on young people; and
(c) young people have greater capacity for rehabilitation, given that the character of a juvenile is not as well formed as that of an adult.
[57] I have already taken into account your impulsivity, lack of maturity and the effect that imprisonment will have on you, when providing a discount in line with R v Tuau. But I have not taken into account your greater capacity for rehabilitation. Ms Breen notes that you and your mother have a very limited understanding of how you are affected by Asperger’s. You need extra information and support to assist you in moving forward in life. Ms Breen identifies programmes that can move you towards more independence, employment and meaningful and appropriate social
contacts.34 I believe there is a lot that can be done to reduce any further risk you
pose to society and that such programmes can potentially make you an important contributor to society.
[58] Both counsel acknowledge that you are a first time offender. I am entitled to have regard to your clean record as evidence of “previous good character” when sentencing you,35 and this is worthy of some recognition in the final sentence.
[59] I am also entitled to take into account remorse.36 Your lawyer tells me that your remorse was immediate upon the completion of the offence in that you stood over your father’s body and cried. I note that it is from this position that you last
saw your father. Your father has since died in prison. You said in your pre-sentence
34 Formal Written Statement of Tanya Breen at [77].
35 R v Hockley [2009] NZCA 74 at [30]
36 Sentencing Act 2002, s 9(2)(f). I note that the Supreme Court in Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [63]-[64] held that if, on a robust evaluation of all the circumstances, genuine remorse had been demonstrated by a defendant, a sentencing credit should be given in addition to that for the guilty plea.
report that you wanted to tell your father that you are sorry and you have never been able to do this.37
[60] Finally, I am entitled to take into account the time you have spent subject to a restrictive bail regime, such as your lengthy daily curfew.38 I acknowledge that you have been on bail conditions for over 20 months living under 12-hour per day curfew. You have never breached this curfew.
[61] Taking into account these remaining mitigating factors, I reduce the sentence by 20 per cent.
Guilty plea discount
[62] Mr Waititi, I will now consider the discount you should receive for pleading guilty to these charges.
[63] The Crown argues that your guilty pleas to the two alternative charges have been assessed against a very strong Crown case on those charges. It says that the full
25 per cent discount for plea is not appropriate. But the Crown accepts a 20 per cent reduction for guilty plea would be appropriate.
[64] Your lawyer, Mr Tomlinson, argues that the full 25 per cent discount should be applied. He submits this was by no means a hopeless defence case and that the strength of the Crown’s case came about because of your admissions at the earliest possible opportunity. Once the charge was amended to one that was acceptable to the defence, the guilty plea followed promptly.
[65] Mr Waititi, this is a matter which is arguable, but taking the position most favourable to you I will give you the full 25 per cent discount. This takes me to a
sentence of two years three months’ imprisonment.
37 Pre-sentence Report on Pararaki Waititi at 3.
38 See, for example, Bennett v R [2012] NZCA 173 at [25].
Totality
[66] I have thought carefully about whether I should adjust this sentence to reduce it to the point where I could consider home detention. However, the exercise I have carried out is one where I have given you the maximum credit I feel is available for the factors which are personal to you. For example, I could have decided that 20 per cent discount for other mitigating factors on top of the 30 per cent discount for the Tuau factors is too great. I could also have accepted the Crown’s submission that a lesser discount for your pleas of guilty is justified. Sentencing is not a science, and in the end a Judge must use his or her judgment.
[67] I think, also, there is a danger of being overwhelmed by the fact that you suffer from Asperger’s Syndrome. The intentions you formed were still your intentions. Your mental health condition helps to explain why you acted as violently as you did to the provocation by your father. But it cannot excuse it. You must still be held accountable for your actions and in my view it would not be appropriate to extend the effect of the mitigating factors personal to you to such an extent that an end sentence would be out of proportion to what you actually did. In my view, an end sentence of home detention would not be appropriate. So, standing back and considering your offending against all of the mitigating factors personal to you, I am satisfied that on a totality basis the sentence is appropriate.
Three Strikes Warning
[68] I am required to give you a warning. It will mean little to you but the law simply requires me to give you the following warning.
[69] Given your convictions for these charges you are now subject to the three strikes law. I am now going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences which lists the ‘serious violent offences’.
1.If you are convicted of any serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of
imprisonment, then you will serve that sentence without parole or early release.
2.If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event, the Judge must sentence you to a minimum term of imprisonment.
Sentence
[70] Would you please stand, Mr Waititi.
[71] Mr Waititi, you are sentenced on both charges to concurrent sentences of two
years and three months’ imprisonment. You may stand down.
Brewer J
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