R v Wereta
[2015] NZHC 2683
•30 October 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-044-002454 [2015] NZHC 2683
THE QUEEN
v
RAWIRI WERETA
Charge:
Plea::
Wounding with intent x1
Guilty
Appearances:
S L McColgan and S Wilson for Crown
P H H Tomlinson for DefendantSentenced:
30 October 2015
SENTENCING NOTES OF VENNING J
Solicitors: Crown Solicitor, Auckland
Copy to: P H H Tomlinson, Auckland
R v RAWIRI WERETA [2015] NZHC 2683 [30 October 2015]
[1] Rawiri Wereta you are for sentence in this Court having pleaded guilty to one charge of wounding with intent to cause grievous bodily harm. The maximum penalty for that offence is 14 years’ imprisonment. Given your record the Court must also consider whether to impose preventive detention in this case. The consequences of that will have explained to you by your counsel Mr Tomlinson. If a finite term of imprisonment, in other words a length of years is imposed instead of preventive detention, as this is a second strike offence for you, you will have to serve the full term of the sentence without parole.
[2] The charge arose out of an incident in D Block at Paremoremo Prison. You and a co-accused, Mr Hill, together with the victim in the matter, were released from your cells during the course of the afternoon on 1 April 2014 to stretch your legs on the landing outside your cells. While the victim was attempting to hang up a washing line Mr Hill approached him and punched him several times in the head and upper body. After Mr Hill had delivered the first blows you went up to the victim, pulled out a shank from your trousers and attacked him. He attempted to hold you off by backing away using the washing line as a whip but you cornered him at the end of the landing. Mr Hill continued to assault the victim but when you joined in using the shank and began slashing at the victim Mr Hill left. The washing line was ripped from the victim. He tried to grab a mop to defend himself against your attack with the shank. You stabbed him at least three times with the shank after ripping the mop away from him. After the attack you threw the shank out of the window. It was later recovered. The shank was made from a sharpened steel rod and measured approximately 23 cms, just under a foot long. Your attack affected a nerve in the victim’s arm leaving him with a flail right arm and puncture wounds on both arms and his right hand.
[3] At this point I note you do not accept the summary of facts insofar as it goes on to say you continued to assault the victim while he was on the floor. I accept Mr Tomlinson’s submission that in the circumstances whether that was so or not will carry little weight in the ultimate sentence to be imposed by this Court in this case, particularly given it is accepted on your behalf the victim was vulnerable. It is clear
you attacked the victim with the shank and stabbed him several times with it. Whether you did so while he was standing up or while he was on the floor will make little difference in the context of this attack overall.
[4] Your trial was due to commence 17 August this year. You sought a sentence indication in May 2015, which was declined, and you pleaded guilty on 22 July
2015.
[5] You are 32 years old. You have an affiliation with Ngati Porou. The pre- sentence report notes you have never been in paid employment due to the amount of time you have spent in prison. You were originally from Palmerston North. The majority of your whanau reside there and in Dunedin. You have a 10 year old daughter who lives in Australia with her mother. One of your brothers is also in prison. You have other siblings, a sister in Gisborne, two other brothers in Dunedin, and your mother also now lives in Dunedin. You have previously been a member of the Black Power gang and the Nomads. You advised a probation officer some time ago you no longer wished to be involved in gangs, and that is a matter I will return to.
[6] You have been involved in a number of incidents while in prison, including possession of unauthorised items such as shanks. You have been involved in other serious assaults on prisoners as well as general non-compliance with directions. You have a major attitude problem, which has led to your overreacting to perceived slights and to conflicts with others. However, the most recent report notes that after this particular offence you have engaged with a departmental psychologist and have attended sessions for some time. You have expressed a willingness to engage in a high risk personality programme to help you reduce your risk classification and that would allow you to take part in further programmes. Those are positive features.
[7] The Crown submits the Court could consider a sentence of preventive detention in your case. But alternatively if a definitive sentence is to be imposed, the Crown argues for a start point of between eight and nine years’ imprisonment.
[8] Mr Tomlinson submits the Court should not impose preventive detention and that the end sentence in this case should be in the region of five years’ imprisonment.
[9] In sentencing you I am required to take account of the principles and purposes of the Sentencing Act 2002. Offending of this nature leads to consideration, particularly of the purposes of denunciation and deterrence, not just for you but for others, but importantly a major consideration is the need to provide for the protection of the community. In terms of the principles I take into account the gravity of the offending, including your culpability, the seriousness of this type of offence which Parliament has marked by fixing a maximum of 14 years’ imprisonment. I also take into account the need for the sentence to be consistent with other sentences imposed for similar offending in other cases.
[10] In determining whether to impose preventive detention I must first consider whether a finite sentence of a number of years would provide adequate protection to the community. That involves consideration of what the appropriate sentence might be in that situation.
[11] There are a number of relevant factors involved in your offending, which inform what that sentence should be.
Premeditation
[12] There was an element of premeditation in that you had clearly prepared the shank for use as a weapon. However, while you and Mr Hill acted together in attacking the victim, I accept it does not appear to have been or have involved particularly high level planning on your part. There was no subtlety in this attack nor any real attempt to conceal your offending, which was recorded on CCTV.
Injury
[13] There was serious injury to the victim. The stab wounds caused him to have flail arm. It has been submitted that his arm has been repaired. Nevertheless it was a serious injury, with the potential for much worse harm to the victim.
Weapon
[14] The use of the weapon, which you had prepared, is itself an aggravating factor.
Vulnerability
[15] As noted Mr Tomlinson accepts that once attacked the victim was rendered vulnerable and at a disadvantage given he was unarmed and facing you and Mr Hill.
Extreme violence
[16] I accept Mr Tomlinson’s submission however that while conceding the incident was serious the actual violence itself was not prolonged. You stopped your attack on the victim before others intervened. You did not have to be pulled off in this case.
[17] I am satisfied your offending is properly placed towards the higher end of band 2 in R v Taueki.1 I take as a starting point eight years’ imprisonment. In fixing that term I have taken account of a number of other relevant cases, including the earlier sentence imposed on you.2
[18] I then turn to your personal aggravating and mitigating factors. There are two principal aggravating features of this case. First, your prior relevant convictions and second, that this offending occurred while you were serving a sentence of imprisonment.
[19] You have a number of convictions for violence, including previous convictions for wounding with intent to cause grievous bodily harm using a stabbing or cutting weapon and assault with intent to injure and injuring with intent to cause grievous bodily harm. An uplift for such previous offending is not to punish you twice. But rather it is to recognise your predilection to violence and also that the
previous sentences have not deterred you from further offending. Further deterrence
1 R v Taueki [2005] 3 NZLR 372 (CA).
2 R v Wereta [2015] NZHC 2555; R v Shepherd HC Auckland CRI-2007-044-9145,19 October
2010; R v Damien Wereta [2015] NZHC 2248; R v Leota [2013] NZHC 2857.
is required. In this case an uplift of nine months would have been appropriate but I note an uplift of six months was imposed in relation to your brother’s offending, which was not dissimilar, and for parity reasons I restrict the uplift to six months.
[20] Next is the issue of your offending whilst subject to a term of imprisonment. In a number of cases the Court of Appeal have observed that offending in the prison environment demands a stern response from the Court.3 While the statements are made generally in the context of attacks on prison officers, it is equally applicable to attacks on fellow inmates who are confined and are entitled to protection. Such attacks also of course inevitably place prison officers and those seeking to control
the prisons at risk. I impose a further uplift of six months for that factor.
[21] That then leads to the mitigating factors. The only mitigating factor available to you before taking account of the issue of totality is for your guilty plea. While you entered the plea some months prior to trial, the Crown case against you was a strong case. Your actions were captured on CCTV. The weapon you used was found and you were identified as the person wielding it. In the circumstances a discount of between 10 to 15 per cent for the guilty plea is appropriate, closer to 10 per cent. That reduces the sentence to eight years before taking account of the totality principle.
[22] There has been some discussion in the cases as to the application of the totality principle where a prisoner such as you is subject to a second strike regime and must serve the sentence without parole. I agree in general terms with the analysis of Moore J in Palalagi v Police.4 I do not consider the Court should be engaged in any enhanced totality discount to mitigate the effect of you being required to serve the sentence without parole. The Court must stand back and look at
the issue of totality of the sentence without considering the implications of the second strike regime and its effect on parole eligibility.
[23] Corrections records disclose that at present you will not be eligible for parole until August 2021 and your sentences will not be completed until April 2024. That is
3 R v Connelly [2010] NZCA 52; Tryslaar v R [2012] NZCA 353.
4 Palalagi v Police [2015] NZHC 1832
because on 1 February 2013 you were sentenced to a total cumulative sentence of
10½ years for, amongst other things, aggravated robbery, three charges of assault with intent to injure and injuring with intent to cause grievous bodily harm. You were then subsequently sentenced to a further four months’ imprisonment cumulative for common assault and, as recently as 20 October last year, you were sentenced to six years, eight months for a charge of wounding with intent to cause grievous bodily harm.
[24] The current offending took place on 1 April 2014 before the sentence imposed in October last year. Section 85(2) of the Sentencing Act is engaged. The Court is required to impose a cumulative sentence on you for this current offending in my view but in doing so must take account of the totality principle to ensure that the combination of the sentences does not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending. In my assessment, having considered the cases that counsel referred to, that leads to an end sentence in your case of six years, nine months’ imprisonment to be served in addition to the existing sentence, were that to be the finite sentence.
[25] I am also required to state the minimum term of imprisonment in such a case and counsel realistically accepts a minimum is required. In this case a minimum period of 50 per cent consistent with other cases would be appropriate to address the relevant considerations of denunciation and deterrence and protection of the community in particular.
[26] That end sentence is relevant to consideration whether preventive detention should be imposed. A six year, nine month cumulative sentence to be served without parole would take your end sentence date to early 2031. By that time you will be 48 years old.
[27] I then turn to the issue of preventive detention and whether it is appropriate in this case. Preventive detention can be imposed if the Court is satisfied you are likely to commit another further qualifying offence, in this case being an offence of violence, if you were released at your sentence expiry date. The Court is required to consider any pattern of serious offending shown by your history, the seriousness of
harm to the community caused by your offending, information as to your tendency to commit serious offences in the future, the absence or failure of efforts by you to address the causes of your offending, and the principle that a lengthy finite sentence is preferable if it provides adequate protection for the community.
[28] I accept in your case, as you have to, there is a clear pattern of serious violent offending in your past. Your record discloses that. You are categorised at present as a recidivist violent offender. A further relevant feature is that your most recent offending has of course occurred whilst in prison. To that extent it might be said while you pose a risk to other prison inmates, you obviously do not pose a risk to the community at large at present. However, as I have said other prison inmates and prison officers are entitled to protection. The conundrum that faces the Court is that if preventive detention is imposed then obviously that means you will potentially spend more time in the very situation which seems to have contributed to your recent offending.
[29] It is difficult to predict the degree of harm likely to result from future offending after your end sentence. The assault that you were involved in with a stabbing weapon is the second such type of assault and use of the way and preparation of the weapon in that case is of particular concern. This Court regularly sees cases where a single stab wound or stabs have led to charges of murder.
[30] As to your likelihood of reoffending, as noted, you are a repeat and recidivist offender, which is relevant.
[31] But the Court has also obtained reports from a psychiatrist Dr Goodwin and a psychologist Ms Visser. Dr Goodwin considers your history is indicative of a well established pattern of violence, both inside and outside the prison settings, and your risk of continuing to offend violently seems high. He does however note that you recently engaged with the Department of Corrections’ psychologist, whereas in the past you had been offered such therapy but declined it. Dr Goodwin considered that current engagement could be seen as constituting some progress.
[32] Ms Visser concludes that the long term risk prediction is inherently problematic but the actuarial measures and tests used during her assessment of you have a high degree of convergence in assessing you as being at high risk for violent re-offending following release. Against that, Ms Visser notes some positive features, particularly that you have recently engaged in treatment and made changes in your behaviour. You have apparently resigned your gang affiliations and demonstrated this with your actions such as tattoo removal. You have now asked for help. She says you are accepting of the help offered. You have engaged in treatment and are learning and practising some new skills. She concludes that while there is some acknowledgement of the risk of future offending it appears you may now have a motivation to change. She considers you have made some progress but significant more effort is required.
[33] I also note the Crown has properly noted in their submissions that there are anecdotal reports from Corrections’ staff members who interact with you that show a changed attitude recently. You have had your security classification revised so that you are now able to interact with other prisoners.
[34] It appears that you are in the course of learning new behavioural skills and you are putting those into practice. There may finally be some awareness on your behalf of what you need to do to turn your behaviour around.
Efforts to address the causes of offending
[35] Mr Wereta your case is finely balanced. You have an appalling record of violence both in the community and in prison. However, I am influenced by the steps you have taken, albeit recently, to address your behavioural issues and to change your behaviour within the prison environment. I am also particularly influenced by the fact that even without a sentence of preventive detention you will face a significant period of imprisonment so that you will be in your very late forties by the time your sentence will be completed. In the circumstances on balance I do not consider the Court is required in this case to impose preventive detention in your case and I decline to do so.
[36] Mr Wereta please stand. On the charge of wounding with intent to cause grievous bodily harm you are sentenced to imprisonment for six years, nine months. The sentence is cumulative upon the sentence you are presently serving.
[37] As this is a second strike offence I am required to order you to serve the sentence in full without parole. I make that order accordingly.
[38] I am also required to record the minimum period of imprisonment that would have been ordered had this not been a second strike offence. In your case I would have imposed a minimum period of imprisonment of 50 per cent because of the seriousness of the attack and the ongoing risk that you do still pose to the community
both within and outside the prison. That is all. Stand down.
Venning J
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