R v Wereta

[2015] NZHC 2248

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-044-4342 [2015] NZHC 2248

THE QUEEN

v

DAMIAN WERETA

Hearing:	17 September 2015
Appearances:	K Lummis and T McGuigan for Crown R Mansfield for Defendant
Sentence:	17 September 2015

SENTENCING REMARKS OF ANDREWS J

R v WERETA [2015] NZHC 2248 [17 September 2015]

Charges

[1]      Mr Wereta, you appear for sentencing today having pleaded guilty to two charges of wounding with intent to cause grievous bodily harm, which each carry a maximum penalty of 14 years’ imprisonment, and one charge of injuring with intent to injure, for which the maximum penalty is five years’ imprisonment.

[2]      The charges  of wounding with  intent  to cause  grievous  bodily harm  are qualifying offences under the “three strikes” provisions of the Sentencing Act 2002. You were given first strike warnings on 28 October 2011 and 1 February 2013.  You were given a second strike warning when you were convicted on the present charges, on 25 May 2014.      As a result, if I impose a finite sentence today, you will be

required to serve it in full, without parole.1

[3]      However,  your  offending  also  makes  you  liable  to  be  considered  for  a sentence of preventive detention, which is an indeterminate sentence where your release is a matter for the Parole Board.   The Crown has submitted that I should impose preventive detention, with a specified minimum period of imprisonment.  On your behalf, Mr Mansfield submitted that a finite sentence should be imposed.

Relevant Facts

[4]      On 1 February 2013  you were sentenced to a total of  ten years and six months’  imprisonment  on  charges  of  aggravated  robbery,  unlawfully  taking  a vehicle, demanding with menaces, threatening to kill, three charges of assaulting a Corrections Officer with intent to kill, and one charge of causing grievous bodily harm (also concerning a Corrections Officer).  On 27 June 2014 you were sentenced to 12 months’ imprisonment, cumulative on the earlier sentence, on a charge of assault with intent to injure.  You are, therefore, presently serving a term of 11 years and  six  months’  imprisonment.    I  will  refer  to  that  as  your  current  term  of

imprisonment. As far as I can see from the record, you are not subject to a minimum

1      Sentencing Act 2001, s 86C(4)(a).

period of imprisonment.   At the time of the offending on which  you are to be sentenced today you were in B Block at Auckland Prison, Paremoremo.

[5]      On 15 September 2013 you, together with three other prisoners, went to cell

40 in B Block. You went into the cell first, followed by two of your co-offenders. Another stood outside the cell as a look out. You were carrying a “shank”, that is, an improvised knife, and you attacked one of the two occupants, Mr Nuku, leaving him with scratches and a deep cut to his forearm that required 16 stitches.   Another prisoner, Mr Henry, then went into the cell, and became involved in the brawl.  You and your co-offenders set upon him, and he was punched and stabbed many times in the neck and torso.  He was left with a life-threatening injury to his neck.  You hit a third victim, Mr Brown, many times to his head, torso, and back.   Much of the assault can be seen from CCTV footage of the cell block.

[6]      You accepted the description of the offending in the Police summary of facts, and you acknowledged your role as principal offender.  You said that you had been told by a rival gang member that one of the victims had “narked” on you.

[7]      I have heard submissions as to whether this was a retaliatory attack and as to whether the victims themselves also had access to shanks.   In the circumstances, those are not issues I have to determine.

[8]      Your trial was scheduled to begin in the District Court on 25 May 2015.  You entered guilty pleas on the first morning of the trial. Your sentencing was transferred to this Court when the Crown indicated that it would seek a sentence of preventive detention.

[9]      One of your co-offenders, Mr Pere (who had acted as lookout for much of the brawl) was sentenced on 7 August 2015 after pleading guilty to two charges of assault with intent to injure.  His sentence was 12 months’ imprisonment, cumulative on the sentence he is serving.  Your two other co-offenders are due to be sentenced on 16 October 2015.  Mr Pritchard faces three charges of wounding with intent to injure, and Mr Nahi faces one charge of wounding with intent to injure.

Victim impact statements

[10]     The victims declined to provide victim impact statements.   However, their physical injuries are evident from the Crown summary of facts.

Your background

[11]     You are presently 35 years old.   You are the eldest of nine siblings.   Your father was the president of a local gang chapter.  Your early life was clearly in an environment where drugs, drinking, and violence were all part of everyday life.  It appears that violence was encouraged and congratulated.   You habitually abused alcohol and marijuana from a very early age.  In an interview with the psychologist you said that your behaviour was violent and oppositional, and out of control, from a very young age.  The CYFS agency became involved in your care from when you were seven years old.  However, the violence and abuse that you had experienced at home continued in the various placements you had.

[12]     Your  education  was  similarly  unstable,  because  you  frequently  moved schools and you were often in trouble for violence.  You left school at 14, without attending Secondary School.  You are the father of seven children, and you are in regular telephone contact with your eldest son.  You are concerned that he is heading down the path you went down, and you do not want that to happen. You are proud of your younger children who have been raised by your father who, as I understand it, has moved out of the gang and changed his lifestyle.

[13]     You have not had any significant employment, and you have been a long-time gang member.

[14]   You have an extensive history of previous convictions.   Excluding the convictions  on  which  you  are  now  being  sentenced,  you  have  68  previous convictions, dating back to July 1997, with Youth Court notations before that.  You have 25 convictions for violent offending.  It appears from the sentencing decisions I have read that at least five of your more recent convictions involved assaults on Corrections officers.  It is apparent that you have spent much of your adult life in prison.

Assessment reports

[15]     Because the Crown seeks a sentence of preventive detention, reports have been prepared by a clinical psychologist and a psychiatrist, for the purpose of assessing the likelihood of your committing a further qualifying violent offence. Both reports contain a detailed summary of your background, and your offending history.

[16]     The psychologist, Dr Visser, reports that you have continuing issues with controlling your emotions, and that your behavioural issues are well-entrenched and difficult to shift.  However, she expresses some hope that you may make progress if you remain involved and engaged in the programmes that you have started.  She says that you have reconfirmed your commitment to learning new ways of behaving that do not include violence.  She says that you have insight into the time it will take to change, but you are encouraged by your father’s example that change is possible.

[17]     In relation to the criteria for imposing preventive detention, under s 87(4) of the Sentencing Act, Dr Visser concludes that you have an extended pattern of violent offending dating back to your youth, which is likely to have caused significant psychological and emotional harm to your victims, and the broader community.  She assesses you as being at a very high risk of further violent offending following your release.  However, she also concluded that a custodial sentence of sufficient length to allow  you  to  undertake  intensive  specialist  rehabilitative  treatment  designed  to address your offence-related needs and, ultimately, to lessen the risk of re-offending is preferable to an indeterminate sentence.

[18]     The psychiatrist, Dr Goodwin, said that you demonstrated good insight into your current situation, and he noted your wish to engage in all psychological programmes that would help you.  Dr Goodwin noted relevant background factors as being your significant history of violence, from a young age, relationship instability, the lack of a history of employment, significant substance abuse problems, a history of maladjustment and possible psychopathy and personality disorder, and clear evidence of significant prior supervision failure.

[19]     Dr Goodwin recorded that you said you found prison very stressful, but you also described situations in the community that had caused you considerable stress in the past – largely in relation to your gang association and tattoos.  Dr Goodwin said he has no reason to believe that you would not experience the same stress in the community in the future.

[20]     Dr Goodwin concluded that you are at a high risk of committing similar violent offences in the future.  However, he did not express a view as to whether that risk  would  be  better  addressed  by  a  lengthy  finite  sentence  rather  than  by the indeterminate sentence of preventive detention.

[21]     I also refer to two written statements provided by Mr Mansfield: first, by another inmate and secondly by a criminologist, Dr Newbold.   Both describe Paremoremo as being a place where violence between prisoners is commonplace, and that it is common for prisoners to be armed with homemade weapons such as shanks.  This is as much they say for their own protection as for anything else.  I also note that two statements have been provided to me by Ms Lummis on this issue, but I do not consider it is necessary to address it in your sentencing.

Submissions

[22]     For the Crown, Ms Lummis submitted that you present a high risk of further violent offending in the future, both in prison and in the community.  As a result, the Crown submits that even a lengthy finite sentence will not adequately protect the community from you.

[23]     However, and in the alternative, Ms Lummis submitted that if preventive detention is not imposed, then the starting point for your sentencing is imprisonment for a period of between 10 and 12 years.  This, she submitted, is because of the very serious circumstances of the assaults.   It was also submitted that only a limited discount should be given for totality issues, because of the need to treat prison disciplinary matters seriously.

[24]     On your behalf, Mr Mansfield submitted that preventive detention is not the appropriate sentence for you.  He submitted that your actions ought to be seen as a

reaction to the prison environment, not as indicating a high risk of violent offending after you are released into the community.  In support of this submission, he pointed to differences between your offending inside prison and outside in the community. He submitted that your offending has been less violent outside of the prison environment.

[25]     As to a finite sentence, Mr Mansfield submitted that the starting point for your sentence should be around nine years’ imprisonment. He submitted that this should then be significantly reduced to take into account the fact that you are already serving a lengthy sentence.

Approach to sentence

[26]     When  considering  whether  to  impose  preventive  detention  I  must  first consider whether a finite sentence would provide adequate protection to the community.  So I must first decide what finite sentence would be imposed.

[27]     The first step is to establish the starting point, which is the sentence that would be imposed on the most serious of the charges on which you have been convicted. In your case, that is the charge relating to the charge of wounding with intent to cause grievous bodily harm, relating to Mr Henry.   The second step is to adjust that starting point to reach the appropriate sentence for you, and for your offending.   I do this by considering factors that make your offending more or less serious, that would lead me to impose a sentence that is greater or less than the starting point.   I also consider matters that relate to you, personally, because these may also lead me to adjust your final sentence.

[28]     In setting a finite sentence I have to take into account the purposes and principles of sentencing.  The most relevant purposes of sentencing in your case are the need to hold you accountable, to deter you and others from similar offending, to denounce your offending, and to protect the community.  In your case the relevant principles of sentencing are the gravity of your offending, including your culpability, the seriousness of your offending in comparison with other types of offences, and the general desirability of consistency in appropriate sentencing levels.  I must take into

account any information provided about the effect of the offending on the victims, and I am directed to impose the least restrictive outcome that is appropriate in the circumstances.

Starting point

[29]     To decide on a starting point, I refer to the guideline case of R v Taueki where the Court of Appeal identified the relevant factors.2     Both Ms Lummis, for the Crown  and  Mr Mansfield  on  your  behalf,  made submissions  as  to  the relevant features in this case, and their seriousness.  I accept that in your case, the attack on Mr Henry involved a high degree of violence, a sustained attack and the use of weapons. Albeit homemade, these weapons were capable of inflicting serious injury. Further,  the  injuries  inflicted  were  serious  and  life-threatening.    There  was  a deliberate stab wound to his neck and he suffered a puncture to his lung.  Those are

the  most  significant  features  of  your  offending.     I  also  accept  that  some premeditation was involved not the least of which is shown by the fact that you bandaged your hand before the attack.  Other matters have been referred to me in submissions, but I consider them to be less significant for the purposes of setting a starting point.

[30]     In Taueki the Court of Appeal said that for Band 2 offending, where there are two or three aggravating features, the starting point may be between five and ten years’ imprisonment.   For Band 3 offending, where there are three or more aggravating factors present, the starting point will be between nine and 14 years’ imprisonment.  I have concluded that your offending must be placed at the lower end of Band 3 with a starting point of between nine and ten years imprisonment.

[31]     Then, when the offending against the other two victims, Mr Nuku and Mr

Brown, is taken into account, the starting point must be increased to ten years and six

months’ imprisonment.

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

Personal factors

[32]     I turn then to consider matters that relate to you, personally.  There are four matters that have been referred to in submissions.   These are your history of convictions, the fact that this offending occurred while you were in prison, the fact that a finite sentence would be cumulative on the sentence you are already serving, and your guilty pleas.

Conviction history

[33]     First, then your history of convictions.  Applying an increase to the starting point because of previous convictions is not imposing a further sentence for something for which you have already been punished. The previous convictions, and then a subsequent conviction, indicate that earlier sentences have not deterred you from further offending and that an additional element of deterrence is required.   I have concluded that an uplift of six months is appropriate to recognise the need for additional deterrence, which adjusts the starting point to 11 years’ imprisonment.

Offending in a prison environment

[34]   Secondly, I consider the fact that this offending occurred in a prison environment.  Mr Mansfield submitted that the starting point should be reduced for what he called an “incarceration” factor, where there are inevitably stresses and tensions arising between prisoners forced to live at close quarters, against their will. He referred to the sentencing in Vincent v R, where a discount of 11 per cent was

applied for this factor;3  and to Courtney J’s comments in sentencing your brother,

Rawiri, on charges arising out of an incident in D Block at Paremoremo that, as she said, “life in D Block carries with it these kinds of incidents more commonly than anyone would like”,4  and in sentencing a co-offender in the same case, that “the reality is that offending is not uncommon in a custodial setting”.5    Conversely, Ms Lummis submitted that violent offending while in prison must have a stern response,

with serious consequences for the offender.

3      Vincent v R [2015] NZCA 201 at [64].

4       R v Rawiri Wereta [2014] NZHC 2555 at [3].

5      R v Isaaka [2014] NZHC 2608.

[35]     I accept that offending within a prison places a greater strain on those who are in charge of prison discipline.  It must be regarded seriously and it must be met with a stern response.6    However, I temper that with the recognition that a prison environment can be a violent one.   I have concluded that a further increase of six months is appropriate for this factor, taking the adjusted starting point to 11 years and six months’ imprisonment.

Cumulative sentence – totality

[36]     The third factor to consider is the fact that, because the present offending is different both in nature and in time from those for which you are currently serving a sentence, a finite sentence must be imposed cumulatively on the current sentence. On top of the current sentence a sentence of 11 years and six months, a finite sentence of about the same length (which you would be required to serve in full) would lead to a very long sentence.

[37]     Generally,  when  multiple  sentences  are  imposed,  the  Court  looks  at  the overall end sentence and decides whether, in totality, they result in a total period of imprisonment that is totally out of proportion to the gravity of the overall offending.7

Courts have applied this principle when imposing a sentence on subsequent sentence of a serving prisoner, for offending both before and during the period of imprisonment.

[38]     In your case, I have to consider whether I should make an adjustment for totality when a second-strike sentence is being imposed, which must be served in full.  I have referred to the judgment of Moore J in Palalagi v Police.8    I conclude that the proper approach is to determine the appropriate sentence in the normal way, and it is that sentence which must be served in full without parole.  The fact that a finite sentence would, in your case, have to be served in full does not mean that I

should depart from the normal sentencing process in fixing that sentence.

6      See Tryselaar v R [2012] NZCA 353, and R v Connolly [2010] NZCA 52.

7      See Sentencing Act 2002, s 85(1)

8      Palalagi v Police [2015] NZHC 1832. See also the comments of the Minister of Justice as to the effect of a second strike: (20 May 2010) 663 NZPD 11226, Hon Judith Collins.

[39]     You are currently serving a sentence of 11 years and 6 months’ imprisonment. As I said a moment or two ago, a finite sentence of the same length would result in an overall sentence (before allowing for a discount for your guilty pleas) that is very long.   That is, it is about 23 years.   I am satisfied that that would be out of all proportion to your overall offending, and that the finite sentence for your latest offending should be reduced to nine years imprisonment.

Guilty pleas

[40]     Finally, I turn to your guilty pleas, entered on the morning your trial was due to start in the District Court.  The pleas were very late and, given the CCTV footage of the incident in B Block, they came in the face of a very strong Crown case against you.   I have heard reference as to what may have been an agreement as to the appropriate discount reached at the time that your guilty pleas were entered.  I do not consider that I am bound by any agreement that may have been reached.   That is simply because the issue of a discount is a matter for the Court, not for counsel. However, your pleas avoided the need for a trial and I accept that you are entitled to a discount for that.  I have concluded that a discount is appropriate leading to a final finite sentence of seven years and nine months imprisonment.

[41]     As you will have been told, if a finite sentence is imposed, you must serve it in  full,  without  any  consideration  of  early  release  on  parole.    However,  under s 86C(6) of the Sentencing Act, if I would have imposed a minimum period of imprisonment but for the fact that this is a second strike offence, I am required to state what that minimum period of imprisonment would have been.  In your case, I would have imposed a minimum period of imprisonment of 50 per cent, because of the seriousness of the attack, the seriousness of the injury inflicted, and the ongoing risk that you present.

Preventive detention

[42]     You have committed a qualifying offence for preventive detention, and you are of an age when it can be imposed.  Under s 87 of the Sentencing Act, preventive detention can be imposed if I am satisfied that you are likely to commit another

qualifying offence if you are released at the sentence expiry date (that is, the full term)9 of the sentence that would otherwise be imposed.

[43]     The factors to be considered are any pattern of serious offending shown by your  history,  the  seriousness  of  the  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 society.

Pattern of offending

[44]     Ms Lummis submitted that there is a very clear pattern of very serious violent offending, demonstrated by your numerous convictions for assaults.  She noted that some of your offending occurred shortly after your release from prison.  Ms Lumis submitted that your recent offences while in prison clearly show that you are willing to  use  serious  violence  on  a  regular  basis.    She  submitted  that  a  sentence  of preventive detention would enable there to be a greater degree of control and oversight upon your release than would be available after a finite sentence.   Mr Mansfield submitted that many of your assault offences were minor, and that the recent offending while in prison does not accurately reflect your behaviour out in the community.  I note that Dr Visser acknowledged that your offending was a response to the unique stressors of the prison environment, but she also said that you are likely to face stressful situations outside of prison.

[45]     You are clearly a repeat offender.   Your history shows that, and you have shown no hesitation in committing a wide array of property offences.  You have also committed a series of more minor assaults, and some much more serious assaults. However, given that your recent very serious assaults have been in a prison setting, I am not persuaded that they truly reflect an escalation of the offences you are likely to commit outside prison.

Degree of harm

[46]     I find it difficult to gauge the degree of harm likely to result from any future offending.  If you were to continue the type of assaults for which you appear today, then there is no doubt that the harm you are likely to cause is severe.  However, your conviction history suggests that the harm arising from your offending in the community may not be as serious, and it has in the main been limited to the loss and destruction of property.

Tendency to reoffend

[47]     As I said earlier, there is no doubt that you are a repeat offender.   Your criminal record is extensive and you have not been deterred by prison sentences. Further, the offences which resulted in your present prison sentence included serious violent offending.  The tests undertaken by Dr Visser, and Dr Goodwin’s assessment, show that you are at a very high, or at least high, risk of reoffending.

Efforts to address the causes of offending

[48]     You have begun to  address  your offending while in prison, and there is evidence that you have previously tried to distance yourself from your offending associates (for example, in your earlier move to Dunedin) and to start anew.  This is encouraging, but the fact that you are presently serving a prison sentence for violent offending, and the offending that has led to your being here today, show that these efforts have not to date been successful.  In Vincent, when psychological intervention failed to stop a very serious stabbing in prison the Court of Appeal considered that to

indicate the need for preventive detention.10

[49]     However, it seems to me that it cannot be said in your case that psychological intervention has failed.   It appears that you have not yet been considered ready to enter a group programme, but as Dr Visser said, you are engaging in a programme aimed at reducing the risk of reoffending, and she says you have confirmed your commitment to changing your way of life.   I also take note of Dr Visser’s recommendation that a lengthy finite sentence, which would allow you to undertake

intensive specialist rehabilitative treatment designed to address your offence-related needs and, ultimately, to lessen the risk of re-offending, is preferable to an indeterminate sentence.

Is a lengthy finite sentence preferable?

[50]     As  I  said  earlier,  preventive  detention  should  only  be  imposed  if  I  am satisfied that a finite sentence will not provide adequate protection to the community. I take into account the effect that a long finite sentence would have, and consider whether preventive detention is the best solution.

[51]     By my calculation, if you were to remain in prison until the statutory release date on your current sentence, and then serve the full term of a finite sentence, you will be approaching 50 years of age.  You would be subject to release conditions on the current sentence which would be carried over to the end of a finite sentence on the present charges.  On balance, I have concluded that in the light of your age at your release, and the ability to continue with programmes and treatment addressing your offending during a finite sentence, the community will be adequately protected by your being sentenced to a finite term of imprisonment.

Sentence

[52]     You are sentenced as follows:

(a)      On the charge of wounding with intent to cause grievous bodily harm relating to Mr Henry, you are sentenced to imprisonment for seven years and nine months

(b)On the charge of wounding with intent to cause grievous bodily harm relating to Mr Nuku, you are sentenced to six years’ imprisonment.

(c)      On the charge of injuring with intent to injure relating to Mr Brown, you are sentenced to three years’ imprisonment.

[53]     The three sentences are to be served concurrently, but cumulatively upon the sentences you are presently serving.

[54]     Because this is your second strike offence, I am required to order you to serve this sentence in full.   I now make that order.   As I said earlier, I am required by s 86C(6) of the Sentencing Act to record what minimum period of imprisonment 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, the seriousness of the injury inflicted, and the ongoing risk that you present.

[55]     Please stand down.

Andrews J

Solicitors:

Crown Solicitor, Auckland