R v Waru

[2017] NZHC 1265

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-044-003940 [2017] NZHC 1265

THE QUEEN

v

PATRICK FREDRICK ABRAHAM WARU

Hearing:	9 June 2017
Appearances:	S L McColgan and R M Dixon for Crown A J Maxwell-Scott for Mr Waru
Sentenced:	9 June 2017

SENTENCING NOTES OF WYLIE J

Solicitors:

Crown Solicitor, Auckland

A J Maxwell-Scott, Auckland

R v WARU [2017] NZHC 1265 [9 June 2017]

Introduction

[1]      Mr Waru, you appear for sentence today having pleaded guilty to thirteen charges under the Crimes Act 1961.   There were three charges of wounding with intent to cause grievous bodily harm.1     The maximum penalty for each of those offences is 14 years’ imprisonment.  There were two charges of injuring with intent to cause grievous bodily harm2  – each subject to a maximum term of 10 years’ imprisonment; two charges of injuring with intent to injure3  – each subject to a maximum term of five years’ imprisonment; five charges of assault with intent to injure4  – each subject to a maximum term of three years’ imprisonment; and one

charge of assault with a weapon5  – also subject to a maximum term of three years’

imprisonment.

Factual background

[2]      You are a sentenced prisoner in custody at Auckland Prison at Paremoremo. The charges against you arise from a violent attack by you and three other inmates on six corrections officers.

[3]      The attack occurred on the afternoon of 16 October 2016.  You and your co- offenders, who I will refer to as N, B and PM, were having “landing time”. You were all allowed out of your cells to socialise with other inmates and to stretch your legs. You  asked  corrections  officers  for  a  mop  and  a  bucket.    This  request  was  not unusual, as cleaning supplies are routinely provided to inmates so they can clean their own areas.

[4]      On this occasion, you and your co-offenders waited behind a grill while an officer went to get the mop and the bucket.  When the officer returned and opened the grill, N grabbed onto the grill and forced it open.  The officer was pushed to the ground and N jumped on top of him, punching him in the left eye.  You joined N, punching the officer in the head.   You were holding sharpened pieces of metal,

commonly known as “shanks”, in each hand.  The shanks were tied to your hands

1      Crimes Act 1961, ss 188(1) and 66(2).

2      Crimes Act, ss 189(1) and 66(2).

3      Crimes Act, ss 189(2) and 66(2).

4      Crimes Act, ss 193 and 66(2).

5      Crimes Act, ss 202C(1)(b) and 66(2).

with pieces of bedsheet.  The officer suffered three puncture wounds to the back of his neck and two wounds to his hands.  He also received bruising to his face.

[5]      PM tried to jump on top of the first officer.  He was pushed away by a second officer and he then punched the second officer in the head using a shank.  You also attempted to stab this second officer.  The officer received a puncture wound a few inches above his right ear.

[6]      B, using the top of the grill door for leverage, stomped on both officers, including on their heads.

[7]      A third officer arrived.  He saw you punching the first officer in the head with a shank.  He tried to grab B, but instead was kicked in the face by B.  This assault broke the third officer’s nose.

[8]      Shortly thereafter a fourth and then a fifth officer arrived on the scene.  The fourth officer threw himself on top of the pile of bodies.  That pile included you, N, PM and the first and second officers.  While the fourth officer was on the floor, B stomped on him and kicked at his head and body, though without much effect.

[9]      A sixth officer arrived and saw B kicking various officers.  He grabbed B’s legs to restrain him.  PM then punched the sixth officer in the head multiple times, causing him to let go of B.  B then kicked the sixth officer in the upper chest and arms. When the third officer tried to intervene, PM punched him in the face.

[10]     In the midst of this fracas, N dragged the second officer away from the group. The second officer lost his footing and fell to the floor.  N then stomped on his head repeatedly.  The second officer lost consciousness.  The fourth officer went to help him and N turned on the fourth officer instead, pushing him away and then punching him to his head and body.   You ran to join this fight and you stabbed the fourth officer a number of times in the head using the shanks tied to your hands.   Your blows punctured the side of his head. You knocked him to the ground.

[11]     The second officer came to and attempted to pick himself up off the floor.  B

then  punched  him  to  the  head  again  using  an  upper  cut,  causing  him  to  lose

consciousness for a second time.  The officer was hit in the left eye.  It became black and swollen. There was a cut to his upper eyelid.

[12]     Shortly thereafter, the officers managed to regain control of the situation and they pushed the four of you backwards towards a rear grill.  They ordered you to drop your weapons.  You complied, unwrapping the pieces of bed sheet from around your hands and dropping the shanks. You told the first officer that he had been lucky and that you had wanted to kill him.

[13]     All but one of the officers received significant injuries, ranging from puncture wounds from being stabbed, to cuts, swollen eyes, bruising and the like.

Personal circumstances

[14]     Mr Waru, you are 26 years old.  You first appeared before the Youth Court in

2004 when you were only 14 years old.  You accumulated 23 Youth Court notations, five of which involved aggravated robberies or assaults.   As an adult you have accumulated 22 convictions. A number of your convictions are for violent offending including assaults and aggravated robberies.  You have been in prison for a number of years already and I am told that your current sentence of imprisonment, excluding the sentences which I will impose today, does not come to an end until February

2021.

Victim impact statements

[15]     I have received victim impact statements from three of the officers who were assaulted.

[16]     One notes that he was unable to return to work for a period of some four weeks following the assault, and that he was required to spend three days in hospital where he was operated on for the injuries he received in the course of the assault.  He states that he has physical scars.  The injuries he sustained have meant that he cannot train as a weightlifter, which has been frustrating for him and affected both his mood and his physical fitness.  He also says that he has suffered considerable financial loss as a result of the assault, and states that his partner, his family and those close to him are distressed by what happened.

[17]     Another officer refers to the injuries caused to him.  He says that he had to attend a medical centre for x-rays, and that he had to undergo physiotherapy.  He had three weeks off work, and he incurred substantial additional costs as a result.   He says that his wife was particularly affected by the assaults, and that she needed to call on the wider support of family and friends.  He says that he has become more cautious, and that the attacks have changed his relationship not only with you, but also the way in which he interacts with other prisoners.

[18]     The last officer says that he was wearing body armour at the time, and that but for that, the stab wounds inflicted on him could have threatened his life.  He did receive a puncture wound, bruising and swelling to his head, and a cut above his eye which needed to be glued.  He was off work for three weeks, and spent some time recovering.  He has been put to additional expense as a result, and both he and his family have been affected emotionally by the incident.   He also says that the experience has changed his attitude towards prisoners generally, and that whilst he previously had a rapport with, and spoke to, many prisoners, he has now lost trust in all of them as a result.

Pre-sentence report

[19]     The  pre-sentence  report  writer  who  interviewed  you  noted  the  repetitive nature of your offending, and assessed you as being at a high risk of re-offending and as presenting a high risk of harm to others.  The report writer recorded that you felt targeted by corrections officers at the prison and that your attack against the officers arose following a build-up of frustration and anger.  You said that you felt targeted because you were cheeky.  You also said that you have been assaulted by corrections officers. You asserted that the attack was not gang related, but you could not explain why your co-offenders also participated in the assaults which took place. You accept that you have a propensity towards violence, although you say only when angered by others.  You believe that your violent tendencies are exacerbated in the prison environment.  The report writer considered that you demonstrate no insight into your offending,  and  that  you  are  unable  to  manage  your  anger.     A  sentence  of imprisonment was recommended.

Submissions

[20]     Mr McColgan, appearing for the Crown, submitted that the lead charges are the two charges of wounding with intent to cause grievous bodily harm where you were the principal offender.   He argued that an appropriate starting point for this offending is in the range of eight to eight and a half years’ imprisonment, with an uplift of around two to two and a half years’ imprisonment for the remaining charges. He submitted that it is appropriate to uplift this starting point by a further 12 months to take into account aggravating features personal to you.   He accepted that some consideration should be given to how long you will spend in prison, given that you are serving an existing sentence, and accepted that totality principles may require that your sentence be reduced, but by no more than 12 to 18 months.   He also accepted that you are entitled to a discount in the region of 25 per cent for your guilty pleas.  He submitted that the appropriate end sentence should be in the range of  seven  years  and  six  months’ imprisonment,  to  seven  years  and  10  months’ imprisonment, to be served cumulatively on your existing sentence of imprisonment. In relation to whether or not I should impose a minimum period of imprisonment, he conceded that there is force in the submissions made by Ms Maxwell-Scott on your behalf, but nevertheless sought that I should impose a minimum period of imprisonment in light of the need to deter and denounce your conduct.

[21]     Ms  Maxwell-Scott,  appearing  on  your  behalf,  accepted  that  a  custodial sentence is inevitable.  She suggested that the appropriate starting point should be one of seven years’ imprisonment, and accepted that that starting point should be uplifted by perhaps 18 months, to reflect the number of offences that you have entered guilty pleas to.  She noted that you were a sentenced prisoner at the time, but submitted that an uplift both for the violent incidents in prison, and for the fact that you were serving a sentence at the time, is a little contrived.  She submitted that any uplift should be limited to six months’ imprisonment for aggravating factors personal to you.   She also put it to me that there are a number of personal factors which suggest that it may be appropriate to afford you discounts.   She referred to your upbringing, to remorse she says you have expressed, and to your hopes of consolidating upon the education you are now receiving and finding a skill from which you can gain employment.   She accepted that you will not be eligible for parole for some considerable time, and submitted that there should be a discount

available to you, to reflect these matters.  She agreed with the Crown that a 25 per cent discount for your guilty pleas is appropriate.  She was opposed to any minimum period of imprisonment, noting that you are unlikely to be released on parole on your first application, and that given the overall term of imprisonment to which you will be  subject,  the  usual  parole  period  is  sufficient  to  hold  you  accountable.    She accepted that the sentence will be a cumulative sentence on the sentence which you are already subject to.  She submitted that the appropriate end sentence is one of six years and six months’ imprisonment.

Purposes and principles of sentencing

[22]     In  sentencing  you,  I  have  had  regard  to  the  principles  and  purposes  of sentencing set out in the Sentencing Act 2002.

[23]     Your offending involved an attack on prison officers.  They are responsible for maintaining good order and discipline in the prison environment.  Your actions were part of a joint attack with other prison inmates.  These circumstances require me to have particular regard to the need to deter and denounce your conduct, both to you and to the wider prison population.   I must also hold you accountable for the harm you have done; promote in you a sense of responsibility and acknowledgement of the harm you have caused; have regard to the interests of the victims; protect the community; and assist insofar as I can in your rehabilitation.  I must also impose the least restrictive sentence which is appropriate in your situation.

[24]     I need to take into account the gravity of your offending and the need for consistency with comparable cases.

Analysis

[25]     I agree with counsel that the lead offending is that arising from the charges of wounding with intent to cause grievous bodily harm where you were the principal offender.

[26]     The  guideline  judgment  for  sentencing  for  this  type  of  offending  is  the decision of the Court of Appeal in R v Taueki.6   It divides such offending into three

6      R v Taueki [2005] 3 NZLR 372 (CA).

sentencing bands.   Which band any particular offending falls into depends on the aggravating factors present in the offending.  These aggravating factors are discussed by the Court. They go to the seriousness of the conduct and the criminality involved. Which  band  any  particular  offending  falls  into  helps  guide  the  court  to  the appropriate starting point.

[27]     I have identified seven aggravating features to your offending.

[28]     First, your offending involved premeditation.7    You had makeshift weapons on you.  You had either manufactured or acquired these weapons in advance.  You had secured them to your hands – also in advance.  You created the opportunity for the attack by requesting a mop and bucket.   This was a ruse.   You and your co- offenders attacked the first two prison officers when they responded to your request for cleaning supplies.

[29]     Secondly, you used weapons.8    The shanks had been crafted and sharpened into serrated cutting blades. They were capable of causing serious injury.

[30]     Thirdly, there is the extent of the violence you used.9   The violence meted out by you was serious, although I accept it was not extreme.  You punched one officer in the head and neck repeatedly with the shanks in your hands.  You ran to join an assault on another officer, and punched him to the side of his head with the shanks.

[31]     Fourthly,  you  attacked  the  victims’  heads.10    The  head  is  particularly vulnerable and attacks to the head can have particularly serious consequences.11

[32]     Fifthly, the offending involved four attackers.12     You acted in a concerted way. Your initial attack was on two victims only. You overwhelmed them.

[33]     Sixthly, the victims were prison officers acting in the course of their duties.13

There is a strong public interest in ensuring the safety of prison officers.  They are

7      Sentencing Act 2002, s 9(1)(i).

8      Sentencing Act 2002, s 9(1)(a).

9      Sentencing Act 2002, s 9(1)(a).

10     R v Taueki, above n 6, at [31](e).

11     At [31](e).

12     At [31](h).

13     Sentencing Act 2002, s 9(1)(fa).

employed to maintain good discipline in prisons.  They were simply doing their job. Your attacks have destroyed such rapport as the officers had with you and other inmates.

[34]     Lastly, there is the extent of the harm you and your co-offenders inflicted on your victims.14   Five of the six victims of the attack suffered significant injuries.  As I have noted, these ranged from bruising and swelling through to stab and puncture wounds.  A number of the injuries the victims sustained were to the face and neck areas.  It was only by chance that more serious harm was not inflicted.

[35]     There are no mitigating factors to your offending.

[36]     The  Crown  and  the  defence  both  accept  that  these  various  aggravating features place your offending firmly in band 2 in Taueki.  I agree.  The starting point for band two offending is between five to 10 years’ imprisonment.15

[37]     The Crown has referred me to a number of other cases involving attacks in the prison environment.16     Each of the cases referred to, bar one, was found to involve band 2 offending.  The exception was found to merit a starting point at the bottom end of band 3.   That case involved three prison inmates attacking three others, and one victim suffering life threatening injuries.  The starting points in these various cases have ranged from eight to 10 years and six months’ imprisonment.

[38]     I have also considered other similar cases,17  where the starting points have been much the same.

[39]     In my view, the appropriate starting point in your case is one of eight years

and six months’ imprisonment.

[40]     This starting point needs to be uplifted, to take into account the rest of your offending.  It was serious in its own right, and in my judgment, it requires an uplift of two years.

14     Sentencing Act 2002, s 9(1)(d).

15     Taueki, above n 6, at [38]-[39].

16     R v Fitzgerald HC Auckland CRI-2008-044-8370, 14 May 2010; R v Te Poono [2017] NZHC

566; R v Wereta [2015] NZHC 2683; R v Wereta [2015] NZHC 2248; R v Shepherd HC Auckland CRI-2007-044-9145, 19 October 2010.

17     R v Nuku [2016] NZHC 254; Lake v R [2017] NZCA 39; Tryselaar [2012] NZCA 353.

[41]     This  takes  my initial  starting  point  to  one  of  10  years  and  six  months’

imprisonment.

Aggravating/mitigating factors personal to you

[42]     I now turn to consider aggravating and mitigating factors personal to you.  I

start with the aggravating factors.

Aggravating factors

[43]     You have a significant  number of convictions for violent offending.   Of particular concern is a conviction for assaulting a prison officer in March 2012.  I also note that you were involved in the Springhill Corrections Facility riot in June

2013,  and  that  arising  out  of that  riot,  you  were  convicted  of various  offences including assaulting a person with a blunt instrument and threatening to kill or to do grievous bodily harm.

[44]     While care has to be taken with uplifting sentences because of a defendant’s criminal history, in my view an uplift is appropriate in your case.   The pattern of violent offending which  you have exhibited over the years indicates not only a predilection to violence, but also a preparedness to use violence in the prison environment.  It is also clear that past sentences imposed on you have not had any appreciable deterrent effect.

[45]     I uplift your sentence by six months to account for your previous criminal record.

[46]     I  note  that  your  offending  was  committed  while  you  were  subject  to  a sentence for the offending committed in the course of the Springhill riots.  While a stern response is required to re-offending while in prison, in my view no additional uplift is necessary in your case.  I have already treated as an aggravating feature of your offending the fact that it was against prison officers.   To uplift because you were serving a sentence of imprisonment would be to double count this factor.  This would be wrong in principle.  Further, both counsel agree that the sentence I impose should be cumulative to the existing sentence which you are already subject to.  You will not be eligible for parole for some considerable time, and in my view it is

important to ensure that any sentence imposed is not crushing on you, given your age.

Mitigating factors

[47]     I now turn to mitigating factors.

[48]     It is clear from your counsel’s submissions that you had a sad and, in many respects, tragic upbringing.   It is not, however, obvious that your upbringing has directly resulted in your offending.   While I am sympathetic, I do not consider it appropriate to allow you a discount for this factor.

[49]     I must consider whether it is appropriate to allow you a discount for remorse. Ms Maxwell-Scott says that you wish to apologise to those you have injured.  She also says that you did not look at or receive copies of photographs showing injuries to the prison officers which were inadvertently sent to you and your co-offenders as part of the disclosure process.  They were apparently passed around the prison.  I am told that you considered that this was disrespectful.

[50]     While I accept this advice from Ms Maxwell-Scott, it still seems to me that there is no evidence of any real remorse.  An apology through counsel is too little, and too late.   At best I am left with the impression that you belatedly regret the circumstances in which you now find yourself.   It must be becoming increasingly obvious to you that you will have difficulty obtaining parole given your history of offending, both within and outside of prison. Your lack of community ties, education and support will make a release plan difficult.  It is something you will need to work at over the coming years.

[51]     On the positive side, I am told that you were released into the general prison population after being on 24 hour lockdown for a number of months after this offending.    Since  your  re-entry into  the  general  population,  you  are  apparently learning to read and write, and you plan to continue with your education in the hope that you will learn other skills necessary for employment. This shows your potential, and I encourage you to continue with these efforts.

[52]     I consider that a discount of six months is appropriate to recognise  your rehabilitative efforts.

[53]     Further, you are entitled to a discount for your guilty pleas.

[54]     Your first appearance was on 7 November 2016.  You entered guilty pleas to three of the charges in April 2017, and to the 10 remaining charges in May 2017. The pleas were entered against a strong prosecution case, including CCTV footage, several   witness   accounts   and   strong   inferences   as   to   your   state   of   mind. Nevertheless, you have not quibbled over your liability for your own actions or the actions of others.  You have taken responsibility for all of the offending, and I accept that you did so in a timely manner.  I agree with Mr McColgan and Ms Maxwell- Scott that the appropriate discount is one of 25 per cent.

[55]     Applying this discount to the adjusted starting point results in a sentence of seven years, 10 months and two weeks’ imprisonment.  I round this to seven years and 10 months’ imprisonment.

Totality

[56]     Mr Waru, you are already serving a sentence of imprisonment which does not end until 2021.  Adding the sentence I propose on a cumulative basis would mean that your term of imprisonment would not end until approximately 2028/2029. Cumulative sentences must not result in a total period of imprisonment wholly out of

proportion to the gravity of the overall offending.18

[57]     The Court of Appeal has however stated in previous cases that offending in the prison environment demands a stern response, and that this would be undermined if the sentence for such offending is adjusted to reflect the fact that the offender is already serving a sentence of imprisonment.19   Re-offending, particularly violent re- offending while  in  prison,  must  have significant  consequences  for the  offender,

notwithstanding that the outcome is a very lengthy period of imprisonment.20

18     Sentencing Act 2002, s 85(2).

19     Tryselaar v R, above n 17, at [18].

20     R v Connolly [2010] NZCA 52 at [31].

[58]     Given this, I do not consider that your sentence requires a further discount to reflect your overall situation.

Sentence

[59]     Mr Waru, will you please stand.

[60]     The following sentences are to be served concurrently with one another.

(a)      On  each  of  the  three  charges  of  wounding  with  intent  to  cause grievous bodily harm, I sentence you to seven years and 10 months’ imprisonment.

(b)      On each of the two charges of injuring with intent to cause grievous

bodily harm, I sentence you to six years’ imprisonment.

(c)      On each of the two charges of injuring with intent to injure, I sentence you to a term of imprisonment of three years.

(d)      On each of the five charges of assault with intent to injure, I sentence

you to two years’ imprisonment.

(e)       On the charge of assault with a weapon, I sentence you to two years’

imprisonment.

[61]     These sentences are to be cumulative upon the sentence you are already serving.

[62]     You have already received a first strike warning with respect to the relevant offences.  I do not need to repeat that warning now.

Minimum period of imprisonment

[63]     Section 86 of the Sentencing Act provides for the imposition of a minimum period of imprisonment where sentences of longer than two years are imposed.  The Court can impose a minimum period of imprisonment if it is satisfied that the usual parole period is insufficient for any or all of the following purposes – namely to hold the offender accountable for the harm done to the victim and to the community by

the offending, to denounce the conduct in which the offender was involved, to deter the offender or others from committing the same or a similar offence, and to protect the community from the offender.  The minimum period of imprisonment imposed must not exceed the lesser of two thirds of the full term of the sentence, or 10 years.

[64]     In Taueki, the Court of Appeal said that in cases of serious violence where denunciation and deterrence are both important sentencing values, and where protection of the community may well be a relevant factor, it is to be expected that minimum periods of imprisonment will not be rare, or even uncommon.

[65]     You were sentenced to seven years and six months’ imprisonment in 2008, when you were 18 years old.   In 2014, while serving that sentence, a cumulative sentence of five years and eight months’ imprisonment was imposed on you in relation to your involvement in the Springhill Prison riot.  You have therefore spent

10 years in custody, and you have never had the opportunity to apply for parole.  The sentences I have imposed are cumulative on your existing sentence.  You will not be in a position to apply for parole until you are well into in your 30s.  In my judgment, the overall period of imprisonment that you will be serving is, in your circumstances, a relevant consideration.  On this basis, I consider that the usual parole period will be sufficient to hold you accountable, and to fulfil the other statutory purposes detailed in s 86.

[66]     I decline to impose a minimum period of imprisonment.

[67]     Mr Waru, you may stand down.

Wylie J