R v Wereta
[2017] NZHC 935
•10 May 2017
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CRI-2015-054-1747 [2017] NZHC 935
THE QUEEN
v
TURANGA WERETA
Hearing: 10 May 2017 Counsel:
D R Davies for Crown
P L Murray for DefendantSentencing:
10 May 2017
SENTENCING NOTES OF THOMAS J
Introduction
[1] Mr Wereta, you appeared before Judge Large in the Palmerston North District Court for a judge-alone trial from 12-16 September 2016. You pleaded guilty to the following charges at the conclusion of the evidence in chief of the two victims, Ms H and Ms K:
(a) in respect of Ms H: one representative charge of male assaults female;1 and
1 Charge two, Crimes Act 1961 s 194(b). Maximum penalty two years’ imprisonment.
R v WERETA [2017] NZHC 935 [10 May 2017]
(b)in respect of Ms K: one charge of male assaults female,2 one charge of injuring with intent to injure,3 one charge of assault with a weapon4 and one charge of wounding with intent to injure.5
[2] You were convicted by Judge Large in his decision on 21 September 20166 of the following charges against the victims:
(a) Ms H: one representative charge of kidnapping,7 two charges of injuring with intent to injure,8 one charge of male assaults female;9 and
(b)Ms K: one charge of attempted sexual violation,10 one charge of sexual violation by unlawful sexual connection11 and one charge of kidnapping.12
[3] You appear today for sentence on those charges.
Facts
[4] There were two victims in this matter.
Ms H
[5] You and Ms H had been in a relationship for nine years prior to your offending. You have two daughters together who are in the care of extended family
members.
2 Charge 11, Crimes Act 1961, s 194(b). Maximum penalty two years’ imprisonment.
3 Charge 12, s 189(2). Maximum penalty five years’ imprisonment.
4 Charge 13, s 202C. Maximum penalty five years’ imprisonment.
5 Charge 14, s 188(2). Maximum penalty seven years’ imprisonment.
6 R v Wereta [2016] NZDC 18670.
7 Charge one, Crimes Act 1961, s 209(b). Maximum penalty 14 years’ imprisonment.
8 Charges six and seven, s 189(2). Maximum penalty five years’ imprisonment.
9 Charge eight, s 194(b). Maximum penalty two years’ imprisonment.
10 Charge 15, s 128(b) and 129(1). Maximum penalty 20 years’ imprisonment.
11 Charge 16, s 128(1)(b) and 128B. Maximum penalty 20 years’ imprisonment.
12 Charge 17, s 209(b). Maximum penalty 14 years’ imprisonment.
Charge 1 – kidnapping (representative)
[6] Between 10 February 2015 and 29 May 2015 you unlawfully detained Ms H in a house truck where you were staying with intent to cause her to be confined. You threatened to cut her up, put her in a bag and leave it at her koro’s house to cause her koro to have a heart attack. The Judge described this as a threat you used to control and detain Ms H, sufficient to satisfy the requirements of kidnapping.
[7] There were a number of times when Ms H in fact left the house truck over this period. On one occasion she spent some weeks recuperating at her grandmother’s home after she had been hospitalised. On another occasion she stayed with a friend for some weeks. She would also spend time with her grandmother and return to the house truck. Ms H’s return to the house truck was at times voluntary and at other times she returned because your behaviour compelled her to.
Charge 2 – male assaults female (representative)
[8] During the kidnapping period between February and May 2015 you assaulted Ms H on a number of occasions. You pleaded guilty following evidence she gave that you cut her with razor blades, burned her with a cigarette and a light bulb, urinated on her, hit her twice with a closed fist, bashed her kidneys with your hands and hit her knee against a nail.
Charges 6 and 7 – injuring with intent to injure
[9] Between 25 March 2015 and 30 March 2015, Ms H was at an address in Palmerston North. One other person was present. When she was sitting at the back porch of the address, you jumped over the back fence carrying an aluminium baseball bat. You hit Ms H’s face. That struck across the bridge of her nose. She got up from where she was and ran inside.
[10] You chased her and hit Ms H against the back of her legs causing swelling and bruising.
Charge 8 – male assaults female
[11] You approached Ms H and punched her in the face with your fist, where you had previously hit her with the baseball bat. Her nose began to bleed uncontrollably.
Ms K
[12] During the beginning of 2014, you began communicating with her via Facebook. She was 17 years old at the time of the offending. Despite ongoing contact between the two of you, you did not physically meet until 3 June 2015 when Ms K travelled to Palmerston North. She stayed with you in a house truck you occupied at a relative’s property and remained there for several days.
[13] On 10 June 2015 you left the address for several hours while she remained at the house truck. All the offending against Ms K occurred on 10 June 2015.
Charge 11 – male assaults female
[14] On your return to the house truck, you found Ms K sleeping. You awoke her as you were angry your washing had not been done. You started punching her in the face but eventually things “cooled off”. Later that evening you saw Ms K had liked a picture on Facebook and you accused her of cheating on you. She denied this and you punched her several times in the face.
Charge 13 – assault with a weapon
[15] You then ripped off Ms K’s clothes and started hitting her with a closed fist. You made her move to the end of the bed and sit with her nose against the wall. You picked up a hair straightener and started hitting Ms K with the cord on her head several times. She started bleeding.
Charge 15– attempted sexual violation
[16] You then rolled her onto her stomach and attempted to penetrate her anus with the hair straightener.
Charge 16 - sexual violation by unlawful sexual connection
[17] You then used the hair straightener to penetrate Ms K’s vagina a number of times, although she could not remember whether it was a few times or a lot. But she said it hurt.
Charge 12 – injuring with intent to injure
[18] You continued your assault by punching and kicking her in the head and body while she was lying down.
Charge 14 – wounding with intent to injure
[19] During this time you flicked cigarette ash on Ms K multiple times. You burnt her by holding the end of a cigarette lighter against her bare skin on multiple parts of her body. You spat at her and called her names like “whore”.
Charge 17 – kidnapping
[20] The kidnapping charge was made out by your overall conduct but was clearly in motion during the assaults and violations. Ms K said she tried to leave and you grabbed her and prevented her from doing so. You tied her wrists together. Although there was a physical ability to leave by the main door at the back of the house truck or the sliding door, Ms K was too scared to leave and fearful of further violence .
[21] She suffered a series of injuries to her legs, face, head and arms.
Personal circumstances
[22] Mr Wereta, you are 24 years old. You have 27 prior convictions. You are a patched member of a criminal gang. You have a history of violent offending, including male assaults female and kidnapping charges in 2009. You were also convicted for two robberies by assault. Your other offending includes less serious charges such as shoplifting and driving while disqualified. These are your first charges of sexual offending.
[23] You are of Māori descent. You have two daughters whom you say are your motivation for remaining offence free.
Victim impact statement
[24] Ms K has provided a victim impact statement. She says your offending has left her traumatised. She is wary of her surroundings and afraid to leave her house. She has nightmares most nights and scars and burns on her body. She hopes no one else will suffer like she has.
[25] There is no victim impact statement from Ms H but it is fair to say the harm both physical and psychological she would have suffered is obvious.
Finite sentence
[26] Your sentencing was transferred to the High Court by Judge Large, who had reason to believe that a sentence of preventive detention might be appropriate, pursuant to s 90 of the Sentencing Act 2002 (the Act). The Crown does not seek preventive detention. I have concluded that a lengthy finite sentence is appropriate in your circumstances.
[27] I will briefly refer to the relevant reports.
Pre-sentence report
[28] The pre-sentence report noted that, due to the recidivist nature of your offending and nature of offences, you are assessed as posing a high risk of harm to others with a high likelihood of re-offending.
[29] The report-writer considered you accepted some responsibility for your offending but was of the opinion you minimised the use of extreme violence. Despite making several statements of a remorseful nature during the interview, there were no overt behavioural signs these statements were genuine.
[30] In terms of rehabilitation, it is recommended you engage with a psychologist with emphasis on addressing your offending-related factors, being attitudes, relationships, offending-related sexual arousal and propensity for violence.
[31] I turn to consider the reports prepared for the purpose of considering preventive detention. I take account that both reports were prepared to include charges of which you were acquitted. This would have caused me significant concern had I been persuaded to impose preventive detention, but as I say, I have not.
Lehany report – s 88
[32] On 21 February 2017 Dr Patrick Lehany, a psychiatrist, issued a report pursuant to s 88 of the Act. The report is brief and the following key points can be extracted:
(a) You said you were “remorseful” and wanted to make it up to the victims. You expressed a hope to do relationship courses and other courses relating to violence and domestic violence.
(b)You do not have a history of mental illness and your offending is not linked to abnormalities in your mental state.
(c) You are relatively young and this could allow you to modify your life and desist from offending. On the other hand it is “notable” your offences are serious sexual and violent offences, which is “not a good prognostic factor with regard to risk of further risk of this type”.
(d) Addressing substance misuse may reduce the risk of reoffending.
Offence-related psychological work would be of value to reduce the risk of future offending.
Carstens report – s 88
[33] On 29 March 2017 Dr Carstens, a clinical psychologist, made the following findings:
(a) You took responsibility to some degree for your offending and
described it as “bad”.
(b)Following a personality assessment (MCMI-III), your profile indicated a tendency for a need to be in control. Your profile indicated narcissistic tendencies against a backdrop of impulsivity and sadism. You had “overinflated self-esteem”.
(c) Your actuarial risk measure (RoC RoI) score indicated a moderate risk of imprisonment within five years of this sentence. You were assessed as being in the high risk category under the violence risk scale (VRS). Your automated sexual recidivism scale (ASRS) was assessed in the medium/high risk category. On the violence risk scale, sexual offender version (VRS: SO) you were assessed as being in the high risk category.
(d)Overall you were assessed at a very high risk of further general (including violent) offending and a high risk of further sexual offending. It was noted you have a pattern of offending soon after release. And I repeat at this point that all those assessments included the offending of which you were acquitted.
(e) You have indicated a willingness to engage in offence-focused treatment. The serious nature of your offending will require specialised and intensive offence-focused treatment.
[34] In considering the relevant factors under s 87(4) of the Act, I have concluded you should not face a sentence of preventive detention. While I note the seriousness of your current offending, the reports do not outline the level of concern required for
preventive detention. I have also taken into account the following key considerations:
(a) First, you do not show a pattern of serious sexual offending. The sexual offending convictions are your first.
(b)Secondly, you are relatively young. While this is not a factor which rules out preventive detention,13 your young age gives an ability to rebuild your life in a positive way.
(c) Thirdly, you have indicated a willingness to address the causes of your offending. You were imprisoned when you were 17 years old and did not complete any courses or rehabilitation during your sentence. A psychological assessment carried out in 2012 suggested you were reluctant to undertake any rehabilitation. Your attitude has changed and you acknowledge you must engage in rehabilitation to confront and address the serious issues you face. Letters of support provided to the Court, which I will address later, speak to some of your positive qualities and particularly demonstrate you will have support in the community on your release. The report writers refer to possible treatment programmes which would assist. I note specialised, intensive offence-focused treatment is required.
[35] Overall I am satisfied a lengthy determinate sentence is appropriate and provides an adequate protection for society in your case.14 In saying that, your offending and the reports demonstrate the high risk you pose, particularly to any women with whom you might embark on a relationship. Intensive rehabilitation is required. As Mr Murray points out, should you be considered to pose the requisite risk at the end of your finite sentence, the Department of Corrections can seek an
extended supervision order.15
13 Antonievic v R [2017] NZCA 87, sentence of preventive detention was upheld on appeal despite the defendant being 19 at the time of offending.
14 Sentencing Act 2002, s 87(4)(e).
15 Parole Act 2002, ss 107B and 107C(1)(a).
Starting point
[36] I now turn to assess the starting point for your offending.
[37] I approach your sentence by first setting the starting point for the offending against Ms K. I will then turn to your offending against Ms H to reach a starting point which will then be adjusted for totality. I will review your personal aggravating and mitigating factors and address a minimum period of imprisonment, which I note at the outset will be necessary.
[38] The charge of sexual violation by unlawful sexual connection is the lead offence and is covered by the “rape” sentencing guidelines in R v AM due to the use of an object, namely a hair straightener.16 In my assessment, it is appropriate to consider a starting point on the sexual violation charge by taking into account as aggravating factors all the offending against Ms K. It all occurred on one day and effectively was part of one long sequence of events. The violence built and transcended into sexual violation and ended in the kidnapping. I have identified the following culpability factors:
(a) Violence and detention. You punched Ms K multiple times in the face and then used a hair straightener as a weapon. These were vicious assaults. You punched Ms K again and kicked her in the head and body. You burned her using a cigarette lighter on many parts of her body. Ms K tried a number of times to run out the door but you stopped her every time. The detention was more than that inherent in sexual offending of this nature. It was over some hours and you prevented her from leaving after the violation.
(b)Vulnerability. Your counsel, Mr Murray, submits there was nothing in this case which rendered Ms K vulnerable as the Court in R v AM contemplated that term.17 I accept, however, a level of vulnerability
due to Ms K’s age of 17, compounded by the fact she had only met
16 R v AM [2010] NZCA 114, [2010] 2 NZLR 750 at [5] and [65].
17 See [42] and [43].
you a few days earlier and had travelled away from her home to stay with you in your house truck.
(c) Harm to the victim. Ms K suffered physical injury as a result of your offending – as the photographs demonstrate. Her victim impact statement, which I have outlined, reveals significant ongoing emotional harm.
(d)Scale of offending. Although all the offending took place on one day, it can be viewed as a significantly violent event which escalated into sexual violence. This was all part, it would seem, of your efforts to dominate and control the victim. You attempted to sexually violate the victim before the actual violation. Your offending involved
cruelty and degrading conduct.18
(e) Degree of violation. This factor overlaps with the scale of the offending. It relates to the use of the hair straightener to attempt to penetrate the victim’s anus and actually to penetrate her vagina.19
[39] I accept there was no evidence the offending was premeditated or planned, or that it involved predatory sexual behaviour.20
[40] The two relevant bands for the purposes of your offending are band two (7-13 years) and band three (12-18) years. Band two applies where two or three aggravating factors apply to a moderate degree. Band three applies where two or more aggravating factors are present to a high degree. In your case violence was present to a high degree and the remaining culpability factors were present to a moderate degree.
[41] The Crown submits your overall culpability places the offending at the lower end of band three, although I think today Ms Davies accepted perhaps the upper end
of band two, and that a starting point in relation to your offending against Ms K
18 At [47].
19 At [52]: “the degree of violation increases, for example, use of a finger as opposed to a fist…”.
20 At [37].
should sit between 12 and 13 and a half years’ imprisonment. Mr Murray says it should sit in the mid-upper range of band two.
[42] Having referred to relevant authorities,21 I consider the offending sits in the upper range of band two. I consider the cases cited in R v AM at the upper end of band two to be broadly similar in terms of overall seriousness as in this case. The examples at the lower end of band three are correspondingly more serious than this case.22 A preliminary starting point of 11 years’ imprisonment is in my view appropriate for your offending against Ms K.
[43] The offending against Ms H then needs to be taken into account.
[44] The Crown submits this offending would on its own attract a starting point in excess of five years and submits an uplift of two and a half to three and a half years is appropriate when considering totality. That would result in an overall combined starting point, on the Crown approach, of 14 and a half to 17 years. Mr Murray says the Crown’s starting point is too high and on a stand-alone basis the charge would attract three to three and a half years. He says the overall combined starting point should not exceed twelve years’ imprisonment.
[45] The two charges of injuring with intent to injure are the most serious. In applying the tariff judgment of Nuku v R23 I identify the following aggravating factors:
(a) use of a weapon, namely a baseball bat;
(b)attacks to the head and the degree of harm. Ms H has a permanent scar; and
21 R v Marsh [2016] NZHC 747; R v Goodrick HC Tauranga CRI-2008-463-00074, 6 August 2010; S (CA71/2014) v R [2014] NZCA 478; R v B CA 278/04, 25 November 2004 and R v AM, above n 34.
22 R v AM, above n 34, at [105].
23 Nuku v R [2012] NZCA 584.
(c) vulnerability in the sense that Ms H had suffered violence from you in the past. She was the victim in the offending which resulted in your convictions in 2010 for male assaults female and kidnapping.
[46] I consider your offending to fall within the upper end of band two of R v Nuku, attracting a two and a half to three year starting point. Taking into account the kidnapping charge, with its threat of serious violence to the victim, as well as the period of effective confinement (noting the absences), and the assault charges, including the number of events within the representative male assaults female charge, your offending would attract a total starting point in its own right of five years’ imprisonment. In accounting for totality however, I impose an uplift of three years.
[47] I therefore take a final combined starting point of 14 years’ imprisonment for your overall offending.
Aggravating factors
[48] I have already referred to your 27 previous convictions which include violent offending. This is your most serious offending to date. The Crown says an uplift is appropriate. I have already taken into account your offending against Ms H as an aggravating factor in relation to that offending and I therefore do not consider a further uplift is necessary.
Mitigation
Remorse
[49] The Crown submits you are not remorseful. Your counsel refers to your desire to learn more about your Māori heritage and says your pre-sentence report shows some insight into the distorted perceptions you hold about relationships and your partners.
[50] I have read the letters provided to the Court on your behalf from whanau
support workers Ms O’Brien, Ms Pokaia and the Highbury whanau centre. The
writers underline your cultural and community connections and the support available to you for your offending. I have also read the letter from your mother, who describes you as a good father, and the letter from your aunt, who says you are eager to improve yourself as a person. I have referred to the letter you have written to the Court. While you attempted to demonstrate some level of remorse for your offending when you were interviewed after you were found guilty, those signs were not borne out by the pre-sentence report where the writer notes any expressions of remorse were not supported by overt signs the statements were genuine. At one stage you said, “I just want a good report”.
[51] For these reasons, I am not satisfied any discount for remorse is appropriate.
Guilty pleas
[52] Your counsel refers to your having entered some guilty pleas during the trial and submits a modest credit should attach to those pleas. The Crown submits your guilty pleas are not deserving of credit. As these were delayed pleas, they cannot attract the same discount as an offender who owns up at the earliest opportunity.24
You were, however, acquitted of some charges and that provides some context. Furthermore, your acknowledgement of guilt in respect of some of the offending will be important to the victims. I allow a discount of a little over five per cent.
Result
[53] Applying the discounts, your final sentence is one of 13 years’ imprisonment.
Minimum period of imprisonment
[54] Offending of this nature will usually attract a minimum period of imprisonment (MPI). I refer to the considerations in s 86 of the Act and am satisfied a minimum period of imprisonment is required to:
(a) hold you accountable for the harm done to the victims;
24 R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607.
(b)denounce your conduct, particularly in light of previous violent convictions;
(c) deter others from committing the same or a similar offence; and
(d)protect the community from you, and in particular the risk of further violence against any future partner you may have.
[55] The Crown seeks a minimum period of imprisonment between half and two thirds of the term imposed. Mr Murray seeks a lesser period of 40 per cent. I impose an MPI of 50 per cent, namely six years six months’ imprisonment.
Result
[56] Mr Wereta please stand. Mr Wereta, I sentence you to a term of imprisonment of 13 years’ together with a minimum period of six years, six months’ imprisonment. The individual sentences are:
(a) Ms K: Sexual violation by unlawful sexual connection – 10 years’ imprisonment; Attempted sexual violation by unlawful sexual connection – five years’ imprisonment (concurrent); Assault with a weapon – two years’ imprisonment (concurrent); Kidnapping – one year imprisonment (concurrent); Wounding with intent to injure – three years’ imprisonment (concurrent); Injuring with intent to injure
– one year imprisonment (concurrent); Male assaults female – six
months’ imprisonment (concurrent).
(b)Ms H: Injuring with intent to injure (x2) – three years’ imprisonment (cumulative); Kidnapping – two years’ imprisonment (concurrent); Male assaults female (representative) – two years’ imprisonment (concurrent); Male assaults female – six months’ imprisonment (concurrent).
[57] The strike warning has already been given. Stand down.
Thomas J
Solicitors:
Crown Solicitor, Palmerston North
5
3
0