R v Waitokia
[2018] NZHC 2146
•21 August 2018
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2018-083-000018
[2018] NZHC 2146
THE QUEEN v
HAYZE NEIHANA WAITOKIA
Counsel: H C Mallalieu for Crown
R B Crowley for Defendant
Sentence:
21 August 2018
NOTES ON SENTENCE OF COLLINS J
Introduction
[1] Mr Waitokia, you appear for sentencing on one charge of wounding with intent to injure.1
[2]This afternoon I will:
(1)set out your offending;
(2)outline the effect of the three strikes regime;
(3)explain whether the manifestly unjust exception applies in your circumstances; and
1 Crimes Act 1961, s 188(2); maximum penalty seven years’ imprisonment.
R v WAITOKIA [2018] NZHC 2146 [21 August 2018]
(4)give you your final sentence.
Summary of offending
[3] On 4 January 2018, you were drinking alcohol with several associates at the Marton Hotel, where you were living while on bail. There is evidence you had been drinking for seven to eight hours. An argument broke out between you and the victim, who believed you had stolen his phone. The victim was sitting next to you on a couch. You produced a knife with a retractable blade and stabbed the victim in the leg about 20 cm below his knee. This happened without any warning and produced a wound approximately 2 cm in length, and 0.5 cm deep, into the victim’s calf muscle, which required medical attention including three sutures.2 You were described by police who arrived at the scene as being belligerent, aggressive and intoxicated.
Personal circumstances
[4] You are 26 years old. You have 14 previous convictions, including six for violent offending, many of which involved domestic violence. In 2012, you were sentenced to five months’ home detention for wounding with intent to injure. You were given your first-strike warning on this occasion. In 2014, you were sentenced to three years’ imprisonment for sexual violation by unlawful sexual connection. You were given your second-strike warning on this occasion. You were sentenced to four months’ imprisonment for domestic violence assaults in March of this year.
Three strikes regime
[5] This is your third-strike offence. In those circumstances, s 86D(2) of the Sentencing Act 2002 requires me to sentence you to the maximum term of imprisonment for your offence. In your case, that is a sentence of seven years’ imprisonment. There is no discretion to allow any discount for the circumstances of your offending, or for your personal circumstances. I acknowledge that this sentence is disproportionate to the gravity of your offending, but that is the intent of the three
2 The summary of facts refers to the wound being 5 cm long. The medical report on file and witness statements refer to the wound being 2 cm long. The wound was to the front and side of the victim’s lower right leg. The unusual location of the wound is not relevant to my assessment. It is possible that, as the victim was sitting on a couch, he may have raised his bent legs to bear the brunt of the attack thereby exposing the area that became the site of the wound.
strikes regime and it is a consequence which follows from you not heeding the earlier warnings.
[6] I am also required by s 86D(3) of the Sentencing Act to order that you serve that sentence without parole, unless I am satisfied that it would be manifestly unjust to do so given the circumstances of your offending and your personal circumstances.
[7] The Court of Appeal in R v Harrison outlined the approach to be adopted when assessing whether it would be manifestly unjust to impose the full sentence without parole.3 Although that case was decided in the context of a section that deals with charges of murder, the High Court has recently applied the same approach to other three strikes cases.4
[8] The manifestly unjust exception is intended to avoid grossly disproportionate sentencing outcomes.5 The case for a finding of manifest injustice must be clear and convincing, but such cases need not be rare or exceptional.6 I am required to assess both the circumstances of your offending and your personal circumstances.7 The sentence I would have imposed but for the three strikes regime is relevant to this assessment.8 I am also to take into account whether you had the ability to understand your two earlier warnings, your level of culpability for your offending and whether you are likely to re-offend.9 Ultimately, the application of the manifestly unjust exception is intensely factual.10
Appropriate sentence but for s 86D
[9] I begin by addressing the sentence I would have given you, if this were not your third-strike offence.
3 R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602.
4 R v Campbell [2016] NZHC 2817.
5 R v Harrison, above n 3, at [108](a).
6 At [108](b).
7 At [108](c).
8 At [108](d).
9 At [108](e).
10 At [108](f).
Starting point
[10] The Court of Appeal’s decision in R v Nuku is the leading sentencing guideline judgment for offences such as wounding with intent to injure.11 Your offending falls on the cusp of sentencing bands two and three, which means that a starting point between two and three years’ imprisonment is warranted for your offending.
[11]Your offending involved the following factors set out in R v Taueki:12
(1)Extent of the violence:13 your stabbing of the victim can only be described as gratuitously violent in the context of a minor dispute over a phone.
(2)Use of weapons:14 your offending involved the use of a knife, which is a dangerous and potentially lethal weapon. By producing the knife, you elevated the level of risk to all involved.
[12] To ensure consistency in sentencing,15 I would have had regard to the following comparable cases:
(1)In R v Tuwairua, a starting point of two years and eight months’ imprisonment was upheld on appeal where the defendant stabbed the victim’s hand with a kitchen knife during a drunken confrontation.16
(2)In Grimshaw-Jones v R, a starting point of two years and eight months’ imprisonment was upheld on appeal where an 18-year-old defendant slashed at the jaw and neck of two victims with a switch knife, causing cuts that required stitches.17
11 R v Nuku [2012] NZCA 584, [2013] 2 NZLR 39.
12 R v Taueki [2005] 3 NZLR 373 (CA).
13 At [31](a).
14 At [31](d).
15 Sentencing Act 2002, s 8(e).
16 R v Tuwairua [2009] NZCA 495.
17 Grimshaw-Jones v R [2010] NZCA 490.
(3)In Sadiq v R, a starting point of two years and nine months’ imprisonment was upheld on appeal where the defendant stabbed the victim three times; in the chest, back and arm. The wounds required stitches and there was loss of blood. However, it is worthwhile noting that the defendant in that case was outnumbered by the victim’s associates during the fight in which the attack occurred and he was later chased and beaten by them.18
(4)In Sheppard v R, a starting point of two and a half years’ imprisonment was adopted on appeal where the defendant stabbed a security guard in the neck with a small screwdriver.19
[13] Mr Mallalieu, for the Crown, and Mr Crowley, your counsel, agree that a starting point of around two and a half years’ imprisonment would have been warranted. I am also satisfied that a starting point of two years and six months’ imprisonment would have been appropriate.
Adjustments to the starting point
[14] You have several previous convictions for violent offending. Most seriously, you were given a sentence of home detention for another instance of wounding with intent to injure in 2012. However, your violent offending has continued, and earlier this year you were sentenced to imprisonment for assault. Mr Crowley accepts that an uplift would have been necessary to reflect your previous convictions. You were also on bail at the time of your offending. I would have considered an uplift of six months appropriate in the circumstances.
[15] The pre-sentence report records that you appeared genuine when you said that you regretted this incident in your interview. You recognise that you should not have used a knife. You also acknowledged that the amount of violence in your criminal history is “shocking”. You indicated that you intend to put your custodial time to good use and undertake whatever rehabilitative measures are available.
18 Sadiq v R [2012] NZCA 396.
19 Sheppard v R [2013] NZCA 639.
[16] You have a seven-year-old daughter who lives with your parents. You have had several labouring jobs and have spent quite a bit of time unemployed and on a benefit.
[17] However, the report assesses you at a high-risk of reoffending. It also notes that you have a propensity for violence, and that you downplayed your several domestic violence convictions. Prison records also show that you were recently involved in a violent incident against a prison guard while in custody. Given those circumstances, I would not have been persuaded to offer you a discount for genuine remorse and/or rehabilitative potential.
[18] You report drinking nearly every day. You started consuming alcohol, cannabis and methamphetamine at age 13. You were under the influence of cannabis at the time of your offending and had recently consumed methamphetamine. You recognise that drugs and alcohol are contributing factors to your offending. However, there is no evidence to suggest that you are addicted, or that your drug and alcohol problem is otherwise sufficiently serious to warrant a discount.
[19] As you pleaded guilty, I would have been willing to give you the full 25 per cent discount for entering an early guilty plea.20
[20] This would have resulted in an end sentence of two years and three months’ imprisonment. This means that you would have been sentenced to a term of imprisonment, regardless of the three strikes regime.
Manifestly unjust exception
[21] I will now consider whether it would be manifestly unjust to order that you serve your sentence without parole. I am not convinced that it would be grossly disproportionate to make such an order in your circumstances. Your offending sits in the mid-range of wounding with intent to injure. This is not a case where your offending is insignificant compared to a maximum sentence that was designed to cover a wide variety of behaviour, as was the case in R v Campbell and R v Fitzgerald, both
20 R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607.
of which concerned indecent assaults that otherwise would not have attracted sentences of imprisonment at all.21 As I have already noted, absent the three strikes regime, you would have been sentenced to a term of imprisonment in excess of two years.
[22] I acknowledge that your sentence will be much harsher than I would otherwise have imposed, however, that will invariably be the case for a third-strike offence. Parliament deliberately designed a harsh response to offenders who persistently commit serious offences despite clear warnings. I have not been presented with any evidence that would suggest you were incapable of understanding the two warning previous given to you in 2012 and 2014.
[23] The Court of Appeal has emphasised that the manifestly unjust exception will only be engaged in clear and convincing cases.22 While such cases might not be rare, as many offences encompass a wide variety of behaviour, it would be contrary to Parliament’s intent for the courts to routinely invoke the exception as a matter of course. Some regard must be given to the fact that Parliament anticipated that some degree of disproportion would inevitably be involved in a regime such as this.
[24] I note that you are only 26 years old. While the Court of Appeal noted that youth would be a relevant factor, that comment was made in the context of the consequences a whole-of-life sentence would have on an offender.23 While your age is still relevant to my assessment, it is less of a concern in the context of a seven-year sentence than for a life sentence. In my view, while taking your age into account, this is not a factor that impacts in any significant way on your sentence.
[25] I have reached the conclusion that this is not a clear and convincing case to depart from the full effects of the three strikes regime. This conclusion is based in part because I consider that you are at a high-risk of reoffending and there is a need for community protection.24 Your previous three strike offences, and the pattern of behaviour they demonstrate, are very telling.
21 R v Campbell, above n 4, at [17]; and R v Fitzgerald [2018] NZHC 1015 at [21].
22 R v Harrison, above n 3, at [108](b).
23 At [108](c)(ii).
24 At [108](e)(iii).
(1)Your first-strike offence was for the same charge as the present offence. You jointly assaulted a victim, along with your father, by repeatedly punching his head and body with closed fists. The victim was also kicked in the face. You also used pieces of wood to strike the victim. The victim suffered a fractured nose, lacerations to his forehead, scalp and one of his fingers, and a fracture to that finger. The victim experienced on-going problems relating to his nose and finger. The pre-sentence reports for this offence described you as having little insight into the implications of your offending. The sentencing Judge described them as disturbing to read.25
(2)Your second-strike offence, while for a different kind of offending, was more serious than your first-strike offence. You followed a 17-year-old girl as she was walking home. She either tripped or was pushed to the ground. You indecently assaulted her and forcibly pulled down her underwear while telling her to calm down. You then forcefully penetrated her genitalia with your finger. She screamed and yelled for help, begging you not to hurt her further. You also threw her cell phone away during the attack. You attempted to remove your pants with one hand while holding her with the other. At this stage, the victim managed to bite your forearm and fortunately, she managed to escape. Your offending had major negative emotional impacts on the victim. The pre-sentence report for this offence described you as reluctant to even discuss the incident. It also concluded there was no evidence of remorse and that you displayed no emotion.26
[26] While your previous three strike offences were for different charges, they both share a common feature with your present offending; that is the fact that in every case you instigated the offending without warning. It is equally disturbing that the pre- sentence reports for both of your previous “strike” offences record your lack of remorse and insight into your actions. Thankfully, you now appear to be beginning to understand that you have a problem. Nevertheless, your continued resort to violence
25 R v Waitokia DC Wanganui CRI-2012-083-1537, 13 September 2012.
26 Police v Waitokia DC Wanganui CRI-2014-083-236, 4 August 2014.
while in custody demonstrates that you have not yet fully come to grips with your violent tendencies.
[27] All three of these offences occurred within a period of approximately six and half years. You continued to offend on each occasion shortly after the end of your previous sentence. You did this even after you were warned about the consequences.
[28] In those circumstances, it is fair to say you are at a high-risk of re-offending, which is confirmed by the assessment in the pre-sentence report. There is a clear need to protect the community from you; one of the central purposes of the three strikes regime.27 For that reason, I do not consider that it would be manifestly unjust to order that you serve your sentence without parole.
Result
[29]Mr Waitokia, please stand.
[30]I am sentencing you to seven years’ imprisonment.
[31]That sentence will be served without parole.
[32]Stand down.
D B Collins J
Solicitors:
Crown Solicitor, Whanganui
Roger Crowley, Whanganui for Defendant
27 R v Harrison, above n 3, at [77].
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