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R v Waitokia

R v Waitokia

Case [2021] NZHC 2905 29 October 2021

Social and Cultural Factors

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2019-044-2718

[2021] NZHC 2905

THE QUEEN

v

HAYZE NEIHANA WAITOKIA

Hearing: 28 October 2021

Appearances:

R N Benic for Crown

R M Lithgow QC and A Jeremich for Defendant (via AVL)

Date:

29 October 2021

SENTENCING NOTES OF ISAC J

Introduction

[1] Mr Waitokia, you may sit while I am talking. I will get you to stand up at the end.

[2] You have pleaded guilty to one charge of injuring with intent to injure,1 and one charge of aggravated assault,2 following a sentence indication I gave you on 22 July 2021. Prior to any further adjustment, the end sentence I reached was two years and ten months’ imprisonment. That was to be served cumulatively on the sentence you are currently serving.

1 Crimes Act 1961, s 189(2), maximum penalty five years’ imprisonment.
2 Section 192(1)(c), maximum penalty three years’ imprisonment.

R v WAITOKIA [2021] NZHC 2905 [29 October 2021]

[3] In sentencing you today, I will set out the facts of your offending before setting a “starting point” that reflects the nature and circumstances of your offending. I will then consider your personal circumstances to see whether the starting point should go up or down, which will produce the end sentence.

Facts

[4]First, the facts.

[5] You were a sentenced prisoner at the Whanganui Men’s Prison. On 13 January 2019 you cut your lip. You told Prison staff at the time that you had fallen over but in the reports before me you appear to suggest you had been assaulted by your cell-mate.

[6] It was decided that you should be taken to the Hospital. At about 9.45 pm, you were handcuffed and placed in the rear of a Department of Corrections van by two prison officers. One of them was due to finish his shift but because the Prison was short staffed, and you were in need of medical attention, he stayed on to help you and his colleagues by acting as a guard.

[7]During the journey, you managed to slip one of your hands out of the cuffs.

[8] At approximately 10 pm the officers parked the van outside the Hospital. One officer opened the door of the van, at which point you pushed the door open and struck the officer a number of times in the head with the handcuff. The other officer then tackled you around the torso and you struck the second officer several times about the head with the handcuff before reaching forward and biting and removing part of the officer’s ear.

[9] You were eventually injected with a sedative, restrained, and returned to the van. The second officer had 19 stitches to his head, as well as the loss of part of his ear, although I am told that grew back. He had black eyes, bruising, and had to take two weeks off work as a result of the injuries you caused him.

[10] You…

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 Waitokia

Details

AGLC: R v Waitokia [2021] NZHC 2905
Case: [2021] NZHC 2905
Decision Date: 29 October 2021

CaseChat Overview and Summary

The case of R v Waitokia involved the defendant, Hayze Neihana Waitokia, who pleaded guilty to charges of injuring with intent to injure and aggravated assault. The case was heard by Isac J in the High Court of New Zealand, Wanganui Registry. The key issues in the case were the starting point for the sentence, the impact of the defendant's personal circumstances on the sentence, and the discounts applicable for the defendant's guilty plea and his participation in restorative justice.

The court began by setting out the facts of the defendant's offending, which involved assaulting two prison officers while being transported to hospital for a cut lip. The court noted that the defendant's offending was unprovoked and part of a pattern of violent behaviour. The starting point for the sentence was set at three years and six months' imprisonment, reflecting the high degree of violence involved and the fact that the defendant was already serving a sentence for violent offending. The court considered the Court of Appeal's guidance that offending of this nature within a prison environment deserves a stern response, with deterrence and denunciation being key principles.

The court then turned to the defendant's personal circumstances, including his history of social and cultural deprivation and his participation in restorative justice. The court accepted that a 15% discount was appropriate to reflect the impact of these factors on the defendant's offending, and a further 5% discount was applicable for his participation in restorative justice. The court also applied a 25% discount for the defendant's guilty plea. The final sentence imposed was one year and 11 months' imprisonment, to be served cumulatively on the sentence the defendant was already serving.

In conclusion, the court sentenced the defendant to one year and 11 months' imprisonment for the charge of injuring with intent to injure, and six months' imprisonment for the charge of aggravated assault, with the sentences to run concurrently. The court emphasised the importance of the defendant taking the opportunity presented by his sentence to address the causes of his offending and to connect with his culture and people.

Orders