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R v Winitana

R v Winitana

Case [2019] NZHC 3229 9 December 2019

Criminal Liability

Sentencing

Three Strikes Regime

Aggravated & Exemplary Damages

Vulnerability of the Victim

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2018-096-002542

[2019] NZHC 3229

THE QUEEN

v

LEO WINITANA

Hearing: 9 December 2019

Counsel:

A W M Britton for the Crown M J Phelps for the Defendant

Sentencing date:

9 December 2019

SENTENCING OF COOKE J

[1] Mr Winitana you appear to be sentenced on one charge of wounding with intent to injure1 and one charge of disabling2 following your entry of guilty pleas. The wounding with intent charge is your third ‘strike’ offence. That means that under the Sentencing Act 2002 the Court must impose the maximum term of imprisonment for the offence, which in the case of the lead charge of wounding with intent to injure is seven years.3 In addition in these circumstances the Court must order that this sentence is served without parole unless it would be manifestly unjust to impose that order.4

[2] You had earlier been charged with the offence of causing grievous bodily harm with intent to cause that harm, which carries a maximum penalty of 14 years’

1      Section 188(2), maximum penalty seven years’ imprisonment.
2      Crimes Act 1961, s 197, maximum penalty five years’ imprisonment.
3      Section 86D(2).
4      Section 86D(3).

R v WINITANA [2019] NZHC 3229 [9 December 2019]

imprisonment, but following discussions with your counsel there was the amendment of that charge to the less serious charge of wounding with intent to injure and guilty pleas were entered. In addition you do not say that it is manifestly unjust for the sentence of seven years’ imprisonment to be served without parole.

[3] While you do not argue that serving the sentence without parole is manifestly unjust it is nevertheless necessary for me to apply the statutory considerations relevant to imposing that sentence, and for me to form its own views on the issues. Given the consideration that has been given to the question of sentence by the Crown and by your counsel I have more limited reports available than might otherwise be the case, but I do have the advantage of a PAC report from the Department of Corrections which provides significant information relevant to your sentence.

The offending

[4] The relevant offending is described in the summary of facts which forms the basis for your guilty pleas. The offending took place on 4 July 2018 at Rimutaka prison where you were serving a sentence of imprisonment for burglary and assault charges.

[5] You did not know the victim. He had been remanded in custody earlier that day and was placed in your cell, which was a double bunk cell. When the victim arrived at the cell you asked him if he had anything on him, meaning if he had any property on him. The victim responded by saying that he just had tea with him. He then turned to the cell door to converse with other inmates in adjoining cells.

[6] You then approached the victim from behind, put your…

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 Winitana

Details

AGLC: R v Winitana [2019] NZHC 3229
Case: [2019] NZHC 3229
Decision Date: 9 December 2019

CaseChat Overview and Summary

In this case, the defendant, Leo Winitana, was sentenced by the High Court of New Zealand for one charge of wounding with intent to injure and one charge of disabling. The court was required to determine the appropriate sentence in light of the defendant’s previous convictions, specifically considering whether the seven-year sentence should be served without parole as mandated by the three strikes regime under the Sentencing Act 2002. The court also had to assess whether serving the sentence without parole would be manifestly unjust.

The court considered the nature and severity of the current offences, the defendant’s criminal history, and his personal circumstances, including his social and cultural background and potential for rehabilitation. The court concluded that while the defendant's background of social and cultural deprivation warranted some discount on the sentence, it did not outweigh the severity of the current offences and the defendant's persistent pattern of violent offending. The court found that the case for manifest injustice was not clear and convincing, and thus the seven-year sentence without parole was appropriate.

The final orders of the court were that Leo Winitana would serve seven years’ imprisonment for wounding with intent to injure, with no possibility of parole, and an additional 12 months’ imprisonment for the disabling charge, both to be served concurrently with the defendant’s existing sentences.

Orders