R v Wereta - [2019] NZHC 2734

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-044-004671

[2019] NZHC 2734

THE QUEEN

v

DAMIAN KARL WERETA

Hearing: 25 October 2019

Counsel:

BR Northwood and RMG Hindriksen for Crown RM Mansfield for Defendant

Judgment:

25 October 2019

SENTENCING REMARKS OF DOWNS J

Solicitors/Counsel:
Crown Solicitor, Auckland. RM Mansfield, Auckland.

R v WERETA [2019] NZHC 2734 [25 October 2019]

Introduction

[1] Mr Wereta, you are for sentence on a charge of wounding with intent to cause grievous bodily harm. This is your third strike. This means I must impose the maximum penalty of 14 years’ imprisonment unless I impose preventive detention, which the Crown urges. In relation to each sentence, there is also the question of a minimum period of imprisonment, something you will have heard Mr Mansfield, your lawyer, talk about this morning. I will come back to this topic. First, your strike offending.

First-strike

[2] On 1 February 2013, a District Court Judge sentenced you to 10 and a half years’ imprisonment on a raft of serious charges: aggravated robbery with a firearm; unlawfully taking a car; demanding with menaces; threatening to kill; three of assault with intent to injure; causing grievous bodily harm with intent to injure; breaching community work and breaching release conditions. The aggravated robbery and grievous bodily harm offences were first-strikes. The victim of the latter was, I gather, a Corrections Officer. Unfortunately, I do not know more about these offences. I have tried to find the Judge’s sentencing notes, without success. I do not even know who the Judge was. But, the aggravated robbery was obviously committed in the community because, as I have said, a firearm was used.

Second-strike

[3] On 17 September 2015, Andrews J sentenced you to a further seven years and nine months’ imprisonment. This because two years earlier, you stabbed another prisoner with a shank; with others, punched and stabbed another prisoner; and attacked a third prisoner. For the uninitiated, a shank is a sharpened implement made in prison—a prison knife essentially. One of your victims suffered life threatening injury. You pleaded guilty on the morning of trial to an offence of injuring with intent to injure and two of wounding with intent to cause grievous bodily harm. The latter were second-strike offences. The Crown sought preventive detention. Andrews J decided,

“on balance”, a finite sentence was preferable, hence the additional seven years and nine months.1

This offending

[4] This brings me to your third-strike; your offending for sentence today. On 12 November 2017, you and four others attacked another prisoner without warning. A co-offender began the attack with punches to the victim’s head. Once the victim was on the ground, you punched and kicked him to the head and abdomen. You then repeatedly stabbed the victim with a shank to the head, neck and upper back.

[5] You gave the shank to a co-offender to wield. He too repeatedly stabbed the victim. You and others kicked the…

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 Wereta

Details

AGLC: R v Wereta [2019] NZHC 2734
Case: [2019] NZHC 2734
Decision Date: 25 October 2019

CaseChat Overview and Summary

The High Court of New Zealand heard the case of The Queen v Damian Karl Wereta, where the defendant faced sentencing for a charge of wounding with intent to cause grievous bodily harm. This was his third strike under the three-strikes sentencing regime, necessitating a mandatory maximum penalty of 14 years' imprisonment or preventive detention. The defendant's extensive criminal history included serious charges such as aggravated robbery with a firearm, assault, and causing grievous bodily harm. In this instance, Wereta and four others had attacked another prisoner in Auckland Prison, inflicting multiple stab wounds that nearly proved fatal to the victim.

The court had to determine the appropriate sentence considering the severity of the current offence, Wereta's criminal history, and the three-strikes regime's implications. The court also had to consider whether a finite sentence or preventive detention would be more appropriate, as well as the minimum period of imprisonment required to ensure public safety.

In delivering the sentencing remarks, Downs J noted the extreme violence employed by Wereta, his use of a weapon, and the fact that the attack was gang-related. The court rejected arguments that the attack was in self-defence or a result of the prison environment, emphasizing the seriousness of violent offending in prison. Downs J calculated a starting point of 10 and a half years but deducted six months for the late guilty plea. Despite Wereta's troubled background and efforts towards rehabilitation, the court found that a finite sentence would not adequately protect the community given Wereta's high risk of re-offending. Consequently, Downs J imposed preventive detention with a minimum period of eight years, balancing the need for public safety with the potential for Wereta's reform and release once deemed safe by the Parole Board.

Orders