R v Wereta

[2017] NZHC 1762

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-044-003270 [2017] NZHC 1762

THE QUEEN

v

RAWIRI DAVID WERETA

Hearing:	28 July 2017
Appearances:	S L McColgan for the Crown K H Maxwell for the Defendant
Sentencing:	28 July 2017

SENTENCING NOTES OF WOOLFORD J

Solicitors/Counsel:

K H Maxwell, Auckland

Crown Solicitor’s Office, Auckland

R v WERETA [2017] NZHC 1762 [28 July 2017]

Introduction

[1]      Mr Wereta you appear for sentence having pleaded guilty to one charge of assault   with   a   weapon,   which   carries   a   maximum   penalty   of   five   years imprisonment,1   and  one  charge  of  common  assault,  which  carries  a  maximum penalty of one years imprisonment.2

Factual background

The current offending

[2]      The offending took place while you and the victims were inmates in D Block at Auckland Prison, on 11 September 2016.  You and the victims were on the landing around lunchtime. You were holding a makeshift weapon hidden under a towel.  The weapon was a 30–40cm long sharpened piece of metal, called a shank.

[3]      You walked up to the first victim and punched him once in the face, causing him to fall to the ground.

[4]      You then approached the second victim and dropped the towel to reveal the shank.  He was holding a broom.  You hit him in the head and arm with the shank, slashing at him a number of times.   When Corrections guards intervened you discarded the shank out of the window and returned to your cell.

[5]      The second victim sustained a cut to his head and a five cm laceration to his left hand.  The cut to his hand severed some ligaments, leaving him unable to move three of his fingers.  He required surgery to repair the ligament damage.

[6]      You told the author of your pre-sentence report that you had been threatened and were protecting yourself.  You were of the view that this was the only way to deal with the situation, and say you feared for your life.

Personal circumstances

[7]      Mr Wereta, you are a 34 year old man of Ngāti Porou descent.   You have

47 previous convictions, as well as many more notations in the Youth Court.  You have committed four offences involving serious  violence  in the past five years, warranting two strike-one and two strike-two warnings.  This is not the first time you have attacked another prisoner; indeed you have been sentenced twice before in this

court for incidents in D block.3    You are currently serving an exceptionally long

prison sentence totalling more than 21 years.

[8]      The  Department  of  Corrections  report  prepared  prior  to  this  sentencing provides some details of your life in prison.   It reports there has been an obvious improvement in your behaviour and attitude in the past six months.  Although there are several negative incidents recorded on your file since this offending occurred, there are no negative file notes since March 2017.  You have been working on the landing as a cleaner, and your case manager reports you are progressing well.  You are undertaking education programmes, including significant progress in a literacy and numeracy programme.  You frequently engage with the Area Adviser for Māori, and say you enjoy these visits.  However, you are currently reluctant to engage with a  psychologist,  as  you  dislike  discussing  your  past.    I  have  also  this  morning received a letter of support from the Hokonui Marae in Gore.

[9]      The previous sentencing notes in this court also discuss positive steps taken while in prison.  In the most recent sentencing notes Venning J wrote that you had apparently resigned your gang affiliations.  There is no mention of gang involvement in  your current report,  so  I hope  you  have continued on that path.   You have, however, clearly, continued to offend.

Approach to sentencing

[10]     I must sentence you today in accordance with the purposes and principles of sentencing set out in the Sentencing Act 2002.4    Of particular relevance to violent offending is the need to promote in you a sense of responsibility for your offending

and to denounce your conduct.  Violent offending is no more acceptable in prison between inmates.  It will be treated seriously by the Court.  On the other hand, the Court must bear in mind the purpose of assisting with your rehabilitation and reintegration,  take  into  account  your  background  and  must  impose  the  least restrictive outcome appropriate in the circumstances.

[11]     Determining  a  sentence  is  a three-step  process.    First,  I will  establish  a suitable starting point.  This requires me to consider the gravity of your offending. Secondly, I will adjust that starting point in light of your personal circumstances. Thirdly, I will apply an appropriate discount for your guilty plea.5

[12]     I note here that the sentence you receive must be cumulative on your existing sentences given it relates to discrete offending.6

Analysis

Starting point

[13]     I start by considering an appropriate starting point for your offending.  The lead  offence  is  assault  with  a  weapon,  clearly  the  more  serious  part  of  your offending.

[14]     Although there is no guideline judgment for assault with a weapon, in Nuku v R the Court of Appeal considered the appropriate bands for offences with intent to injure, using the aggravating features set out in another Court of Appeal tariff case, R v Taueki.7   One of the relevant offences in Nuku v R, injuring with intent to injure, also carries a maximum penalty of five years.  As a result it is helpful for the current offending, and has previously been adopted for use in cases involving assault with a weapon.8  The bands are as follows:9

(a)      Band one: where there are few aggravating features, the level of violence is relatively low and the sentencing judge considers the offender’s culpability to be at a level that might have been better

5      R v Taueki [2005] 3 NZLR 372 (CA); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

6      Sentencing Act 2002, s 84.

7      Nuku v R [2012] NZCA 584; R v Taueki, above n 5.

8      Hurinui v R [2014] NZCA 290 at [26]–[27]; Edmondson v Police [2015] NZHC 3184 at [10].

reflected   in   a   less   serious   charge,   a   sentence   of   less   than imprisonment can be appropriate.

(b)Band two: a starting point of up to three years imprisonment will be appropriate where three or fewer of the aggravating features listed at [31] of Taueki are present.

(c)      Band  three:  a  starting  point  of  two  years  up  to  the  statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band three, even if there are few other aggravating features.

[15]     The following aggravating factors were present in your offending:10

(a)      Premeditation – Your offending was premeditated.  You fashioned a weapon in your cell in advance, before concealing it and approaching your victim.

(b)Use of a weapon – You used a sharpened metal shank to attack the victim.  I note, however, that the use of a weapon is inherent in the offence and so I am wary of double counting this factor.  Nonetheless, the type of weapon and the manner in which it was used are relevant to an assessment of seriousness.11

(c)       Attack on the head – You struck your victim in the head with the weapon.

[16]    The Crown submits that the serious injury caused to your victim is an aggravating factor.  In my view, while the injury required surgery, it was moderate in the context of similar offending.

[17]     Accordingly, I consider that your offending falls within band two of Nuku v R, although not at the top end of the band.  There are three aggravating features

present, but the combination of those factors is not particularly serious.

10     R v Taueki, above n 5, at [27].

11     See discussion in Mohib v Police [2017] NZHC 123 at [27].

[18]     Counsel also helpfully point to several relevant cases:

(a)      Edmondson v Police12  – The defendant pulled the victim’s hair and elbowed her in the right eye.  He took a knife from the kitchen and warned the victim that if she called the Police he would put a knife to her throat faster than they could get there.  When she attempted to call the Police, he took the telephone from her and bent her fingers back. He took a large carving fork and used it to stab her in the lip.   On appeal,  Peters  J  reduced  the  starting  point  on  the  assault  with  a weapon charge to 14 months imprisonment.

(b)Mohib v Police13  – The appellant slapped and punched the victim multiple times in the head.  He later left the room and returned with a hammer.  He struck the victim with the head of the hammer, hitting her multiple times in the arms and legs, leaving her with bruises to her arms, thighs, face and head.   On appeal, the High Court upheld a starting  point  of  15  months  imprisonment  for  the  lead  charge  of assault with a weapon.

(c)      Leatherby v Police14  – The appellant struck his victim once on the side of the head with a butcher’s knife, leaving a 1.5 centimetre cut above the victim’s eye.  Miller J allowed the appeal and substituted a starting point of nine months imprisonment.

(d)Whatuira v Police15 – The appellant punched his elderly father in the face, struck him on the elbow with a hammer, and threw a mountain bike at him, hitting him on the arm.  Dobson J allowed the appeal and substituted  a  term  of  17  months  imprisonment  for  two  counts  of assault with a weapon and one charge of common assault.  He did not

explicitly state a starting point, but appeared to hold a starting point

12     Edmondson v Police, above n 8.

13     Mohib v Police, above n 11.

14     Leatherby v Police HC Palmerston North CRI-2008-454-45, 11 September 2008.

15     Whatuira v Police [2012] NZHC 1995.

less than the 12–13 month starting point adopted by the Court of

Appeal in Stone v R was appropriate.16

[19]     Your offending is similar to that in the cases of Edmondson, Whatuira and Mohib in that it was premeditated two-stage offending with a weapon that involved blows to the head.  However, you inflicted more serious injury on your victim.

[20]     On the other hand, it was less prolonged than all three incidents.   Further, unlike in those cases, your victim was holding a broom, with which he could defend himself.  The offending therefore differed from all four cases cited in that it occurred in something closer to a fight.  While this by no means justifies your offending, your victim was comparatively less vulnerable.

[21]     Balancing these factors, I consider a 13 month starting point is appropriate.  I add to this a one-month uplift for the common assault charge, which involved a separate victim and a blow to the head.

Adjusting the starting point

[22]     As  I  have  detailed,  you  have  a  lengthy  criminal  history,  including  a significant number of violence convictions and two previous similar (albeit more serious) convictions for offending in prison.   An uplift is required to reflect your greater culpability and also the need for increased deterrence.  It is also appropriate

to  apply  an  uplift  to  reflect  that  the  offending  occurred  in  a  prison  setting.17

Offending in prison must be taken seriously; inmates are entitled to protection, as are staff. Accordingly, I impose a total uplift of two months.

Guilty plea discount

[23]     Your guilty plea was entered after the conclusion of the Crown’s case at trial,

to less serious charges then offered by the Crown.   You pleaded to the amended charges at the first available opportunity.  Responsibly, the Crown acknowledges that

16     Stone v R [2011] NZCA 558.

17     Lake v R [2017] NZCA 39.

in the circumstances you are entitled to a full 25 per cent discount for your guilty plea.18  That brings your sentence to 12 months.

Totality

[24]     The final consideration is to adjust your sentence for totality.19   Under s 86(2) of the Sentencing Act, in imposing a cumulative sentence I must have regard to whether  sentencing  results  in  a  total  period  of  imprisonment  wholly  out  of proportion to the gravity of the overall offending.

[25]   You are currently serving a considerable prison term.   Department of Corrections records indicate you will not be eligible for parole until 2028.   The Crown submits that a reduction of 5–10 per cent is appropriate to reflect the impact of your sentence in totality.  Your counsel advocates a little more.  I have considered the approach taken by the Court of Appeal in R v Connelly and in your circumstances

propose to reduce your sentence to one of 10 months imprisonment.20

Conclusion

[26]     Mr Wereta, please stand.  On the charge of assault with a weapon to which you have pleaded guilty, I sentence you to a sentence of 10 months imprisonment cumulative on your existing sentence.  On the charge of common assault, I sentence you to a concurrent sentence of three months imprisonment.

[27]     Thank you Mr Wereta, you can stand down.

Woolford J

18     R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298.

19     Sentencing Act 2002, s 86(2).

20     R v Connelly [2010] NZCA 52.