[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…

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 [2015] NZHC 2248
Case: [2015] NZHC 2248
Decision Date: 17 September 2015

CaseChat Overview and Summary

In the High Court of New Zealand, the defendant Damian Wereta was sentenced for two counts of wounding with intent to cause grievous bodily harm and one count of injuring with intent to injure. The court was required to decide on the appropriate sentence, considering the nature of the offences, Wereta's criminal history, and the potential for rehabilitation. The court also needed to determine whether a finite sentence or an indeterminate sentence of preventive detention would be more suitable.

The court began by setting a starting point for the sentence, considering the gravity of the offences and the aggravating factors, such as the high degree of violence and the use of weapons. The court then adjusted the starting point by considering personal factors, such as Wereta's extensive criminal history, the fact that the offences occurred in a prison environment, and the need to address the issue of totality. The court also took into account Wereta's guilty pleas, which led to a discount in the sentence. After considering all these factors, the court determined a finite sentence of seven years and nine months for the most serious charge, six years for the second charge, and three years for the third charge, to be served concurrently.

The court then examined whether a sentence of preventive detention would be more appropriate. It considered the pattern of Wereta's offending, the degree of harm caused by his crimes, his tendency to reoffend, his efforts to address the causes of his offending, and whether a lengthy finite sentence would provide adequate protection for the community. The court concluded that a finite sentence would adequately protect the community, taking into account Wereta's age at the time of his release and the potential for continued rehabilitation during his imprisonment. Therefore, the court imposed a finite sentence of seven years and nine months, six years, and three years, to be served concurrently and cumulatively with his current sentence.

Orders