R v Winitana

[2019] NZHC 3229

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 arm around his neck to form a “sleeper” hold and squeezed his neck. He resisted but he could not overcome you and he was rendered unconscious. While he was unconscious you rifled through his property and consumed some of his food.

[7]    He then regained consciousness and managed to get onto his bed on the top bunk and lay on the mattress. You continued to search through his property and discovered that he had nicotine lozenges. This made you irate, and you pushed a stereo in the cell up against the wall and turned the volume up so that other inmates could

not hear what was happening in the cell. You then pulled the victim off the top bunk and struck him a number of times to his head and body, rendering him unconscious again. It was a prolonged attack which caused concern to nearby inmates who alerted Corrections staff. When they entered the cell they located the victim lying on his back on a duvet on the floor of the cell. He was struggling to breath and had visible bruising on the right side of his face. When Corrections staff arrived you were having a shower in the shower of the cell. You stated there was nothing wrong with the victim and told Corrections staff to leave.

[8]    The victim was taken to Hutt Hospital and placed into an induced coma due to the severity of his injuries. He suffered multiple fractures on both sides of his rib cage, a punctured lung, bruising to his face, arms and scalp. His kidney and liver were also damaged and the organs suffered from muscle breakdown. I have received a victim impact statement from your victim describing the distress caused, particularly to his family who were concerned that he would not survive while they waited for him to recover in hospital.

[9]    You are 27 years old. You have 34 previous convictions, including eight previous convictions for violent offending. In 2011 you received a first-strike warning for an aggravated robbery conviction and served a three-year sentence of imprisonment. In 2016 you received a second-strike warning for a conviction for aggravated burglary. You are currently in Rimutaka prison serving a six-year sentence for assault, burglary and wilful damage charges for which you were convicted and sentenced in May 2016. Most recently you were sentenced in August 2016 to a further 12 months’ imprisonment for violent assaults on a prison officer and other inmates committed while remanded in custody in November 2015. I am advised by counsel that your current end of sentence date is 29 August 2021.

Three strikes regime

[10]   The Sentencing Act 2002 requires the Court to sentence an offender convicted of a stage-3 offence to the maximum term of imprisonment prescribed. The only question I need to consider is whether it would be manifestly unjust for that sentence

to be served without parole. Pursuant to s 86D(6), any other offence imposed on the same occasion must be imposed concurrently.

[11]   The leading authority on the manifestly excessive exception is the Court of Appeal’s decision in R v Harrison.5 I apply the overall approach as summarised by Collins J in R v Waitokia.6 It is intended to avoid grossly disproportionate sentencing outcomes. The case for a finding of manifest injustice must be clear and convincing, but such cases need not be rare or exceptional. I am required to assess both the circumstances of your offending and your personal circumstances. The sentence I would have imposed but for the three strikes regime is relevant to this assessment. I am also to take into account whether you had the ability to understand your two earlier warnings, your level of culpability for your offending and whether you are likely to reoffend. Ultimately the application of the manifestly unjust exception is intentionally factual.

Appropriate sentence but for s 86D

Starting point

[12]   The Court of Appeal’s decision in R v Nuku7 is the guideline judgment for offences such as wounding with intent to injure, and involves three bands depending on the number of aggravating factors set out in its decision in Taueki.8 The offending here involved the following aggravating factors:

(a)Extreme violence involving attacking the head: The attack was prolonged and involved multiple blows to the victim’s head and body, while he was lying on the ground.

(b)Serious injury: The victim was placed into an induced coma due to the severity of his injuries and received multiple fractures to his ribs, a punctured lung, damage to his kidneys and liver and bruising to his face, scalp and arms.

5      R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602.

6      R v Waitokia [2018] NZHC 2146 at [8].

7      R v Nuku [2012] NZCA 584, [2013] 2 NZLR 39.

8      R v Taueki [2005] NZCA 174, [2005] 3 NZLR 373 (CA).

(c)Vulnerability of the victim: The victim was vulnerable as he was your cell mate and you rendered him unconscious.9 He was initially attacked from behind with a limited opportunity to defend himself.10

(d)Whilst not a Taueki factor, I also consider it aggravating that the offending occurred while you were serving a sentence of imprisonment.11

[13]   Given these factors, your offending falls at the start of band three of Nuku, which means that a starting point between two and seven years’ imprisonment is warranted.

[14]   One of the principles of sentencing is consistency. Of the cases that have been referred to me which may involve similar offending to yours, I consider R v Nuku as most comparable.12 This was also a prison confrontation involving a third strike offence where the defendant attacked a fellow inmate from behind by attacking him to the head, and a few weeks later attacking the same inmate by repeatedly stabbing him with a metal shank while other inmates punched and kicked him. In that case the Court indicated it would have adopted a starting point of six years’ imprisonment were it not for the three strikes regime.

[15]   Here your attack was completely unprovoked, and involved a complete stranger. The extreme violence you used after rendering him unconscious involved very significant physical injuries. The infliction of those injuries was completely gratuitous. They are the type of injuries that could easily have justified the higher offence of causing grievous bodily harm with intent to cause that harm. But as I say the reduced charge has arisen out of these sensible discussions between the Crown and your counsel.

9      The victim’s vulnerability as a fellow prisoner was considered an aggravating circumstance in R v Sanders [2019] NZHC 164 at [20].

10 Graham v R [2011] NZCA 131 at [14].

11 Lake v R [2017] NZCA 39 at [7]; Tryselaar v R [2012] NZCA 353 at [18]; Pulete v R  [2013] NZCA 216 at [28]; Karetu v R [2013] NZCA 408 at [18]–[19]; and Kepu v R [2011] NZCA 104 at [18]–[19].

12 R v Nuku [2018] NZHC 2510. See also Nuku v R [2019] NZCA 25.

[16]   In the circumstances in my view a starting point of five years’ imprisonment would have been appropriate.

[17]   To the starting point would then have needed to be an uplift to recognise the disabling charge. The purpose of your disabling of the victim appears, at least initially, to engage in theft, but it was a significant event involving the loss of consciousness. In the circumstances an uplift of 12 months would have been appropriate for this charge.

[18]   Then there would have been an uplift to recognise your previous offending. You have several previous convictions for violent offending, most recently for other assaults occurring in prison in August 2018. You have two convictions for assault with a blunt instrument in 2016, an assault with intent to injure in 2014 for which you were given a sentence of 13 months’ imprisonment, as well as two previous convictions for aggravated burglary and robbery. I consider a six month uplift to reflect these previous convictions would be appropriate.

[19]   This would have resulted in a total term of imprisonment of 6 years and six months subject to any discounts.

Personal circumstances

[20]   In addressing your personal circumstances, and whether there would have been any discount for such circumstances, I note that I have not received a report under s 27 of the Sentencing Act. But the PAC report I have received indicates that there are relevant background and cultural factors. You have reported that you identify as Ngāti Kahungunu. It is apparent that there has been a breakdown in the relationship with your iwi. Your parents separated when you were 13 years old and you report that you and your siblings were placed in foster care for periods, and that when you returned to home you were left largely unsupervised, and that you interacted with your cousins and became more influenced by alcohol and cannabis. You were expelled from school at 13 years for smoking cannabis. You were sent to Flaxmere College in Hastings which you described as an experience of going from “a Maori school to an English school”. You had very little, if any education, and only later learned to read and write

yourself after you had left school. Your life choices were plainly limited by your circumstances.

[21]   The decision of the High Court in Solicitor-General v Heta,13 and of the Court of Appeal in Zhang v R14 indicate that discounts for social, cultural and economic deprivation can be given in appropriate cases. Whilst I do not have information that shows your adverse background was directly caused by colonisation, your circumstances are distressingly familiar, and in any event the focus is on how such deprivation impacts on your culpability rather than the causes of it. Your circumstances partly explain, although do not and can not excuse, your resort to gang life and violence. Under s 8(i) of the Sentencing Act I am required to take into account your personal, family, whanau, community and cultural background in imposing a sentence which has any rehabilitative purpose, and under s7(1)(h) one of the purposes of the sentence is to assist in rehabilitation even when other sentencing purposes are more prominent. Your circumstances demonstrate to me a background of significant social and cultural deprivation warranting recognition, and some discount on the sentence you would have served but for the three strikes regime. The words of Williams J in R v Rakuraku which were adopted by Whata J in Solicitor-General v Heta appear equally relevant to your case. He said of the defendant in that case:15

[58] … Your anger and aggression is partly a factor of your personality and you made free choices in that regard. But it is also partly a response to the drivers I’ve discussed that aren’t of your making at all; to the way the world responds generally to Māori boys and men from poor backgrounds. We must be honest with ourselves about that. So it comes as no surprise to me that you sought security in the brutalised and traumatised company of those who share your experience and history – the Mongrel Mob. That shared experience has a terrible magnifying effect when it gathers in one place. To deny that as a contributing factor would be to deny that race and history have any part to play in Māori criminality generally today, and therefore in your own criminality. The sentence I impose must take proper account of this factor if it is to be a punishment that fits both the offences and the offender.

[22]   There is a further related feature of your case. The entirely unprovoked and gratuitous nature of this offending is almost inexplicable. You have referred to your sense of paranoia and anxiety when discussing your intention and motive behind the assault to a report writer. The report writer indicates that you indicated that you had

13     Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.

14     Zhang v R [2019] NZCA 507 at [158]–[162].

15     R v Rakuraku [2104] NZHC 3270 at [58].

“lost it” when you continued to assault the victim, that there were certain matters that were causing you stress at the time, and that you suffered from paranoia if members you bunk with are not members of the Mongrel Mob. Corrections staff have also indicated that you struggle to verbalise you emotions in an appropriate way, and also struggle to understand certain things unless broken down into simpler terms.

[23]   I have no reports that would provide any neurological, psychiatric or psychological reasons for these behaviours. For example, there is no information evidencing early physical or other trauma. These features by themselves do not warrant a discount for mental health issues.16 There may be matters that may warrant further consideration by prison authorities. But I do note that you have said that you are motivated to address your offending behaviour and that you want to attend rehabilitation programmes. You report that you find it difficult to interact with a group context and would prefer to attend on an individual basis. The rehabilitation residential manager at the prison described that you have a desire to make some positive changes in your life and that there has been a positive change in your behaviour in recent times.

[24]   I commend you on the steps that you have recently taken to be a better person, and I would encourage you not only to work on a one on one basis as part of that rehabilitation, but also consider whether there is a way of reconnecting with Ngāti Kahungunu. The Mongrel Mob is not the only group to which you belong.

[25]   I conclude that there would have been a discount of approximately 10 per cent for social and cultural deprivation, and your personal difficulties, taking into account the process of rehabilitation that you have started. The other discount that would have been available to you in the circumstances of your case would have been a discount for your guilty plea of approximately 25 per cent. This would have resulted in a sentence of four years three months’ imprisonment were it not for the three strikes regime. In addition, however, there would likely have been the need for a minimum period of imprisonment associated with such a sentence particularly given the need

16     See E (CA 689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [71]–[83].

for protection of the community. In your case that would have involved a minimum period of two thirds of the sentence, being two years and 10 months.

Does the manifest unjust exception apply?

[26]   As the Court of Appeal in R v Harrison outlined the case for a finding of manifest injustice must be clear and convincing. The question here is whether serving your seven year sentence without parole is manifestly unjust. The sentence that would have been imposed but for the three strikes regime is relevant, as are the purposes and principles of sentencing under ss 7, 8 and 9 of the Sentencing Act.

[27]   In my view this is not a clear and convincing case where the manifestly unjust exception could apply. Your offending sits at the most serious end of the scale for the offence of injury with intent to injure. You have a lengthy criminal history involving violent offending. Your three strikes have occurred over an eight year period, and the previous strikes in 2011 and 2016 were also for violent offences. There is no evidence to suggest you were incapable of understanding those warnings. You continue to reoffend despite being remanded in custody. The pre-sentence report assesses you at a high risk of reoffending. As things currently stand you are a danger to the community. Your personal circumstances do not displace these considerations.

[28]   Absent the three strikes regime, you would be serving a sentence of four years three months’ imprisonment with a MPI of two years 10 months. While serving the maximum penalty of seven years’ imprisonment without parole is undoubtably harsher than the sentence you would otherwise receive, that is Parliament’s clear purpose in enacting the three strikes regime. It also seems to me that if you are able to make significant changes to your life it will take time, and a real commitment to change.

[29]   A complication arises from the fact that you are presently serving sentences of imprisonment imposed in May and August 2016. I raised this issue with counsel, which is why we took a one hour adjournment of this sentencing hearing. If the seven year sentence were to commence only after you had completed your existing sentences, then it seems to me that a further seven year sentence without parole could well be manifestly unjust. Mr Britton accepted, however, for the purposes of this case at least, that it remained open for the Court to impose a seven year sentence without

parole concurrently with the existing sentences you are serving under s 83(5) of the Sentencing Act given the effect of s 86D(6). That is the course adopted by the High Court in R v Nuku, and it is the approach I intend to adopt given the time remaining on your existing sentences.17

Result

[30]   Mr Winitana will you please stand. On the charge of wounding with the intent to injure I sentence you to seven years’ imprisonment and order that this sentence is to be served without parole. On the charge of disabling I sentence you to 12 months’ imprisonment, with that sentence to be served concurrently with the imprisonment on the wounding with intent to injure charge. Both of these sentences I have just imposed are to be served concurrently with your existing sentences of imprisonment. Please stand down.

Cooke J

17     R v Nuku, above n 12, at [22]. See also Nuku v R, above n 12, at footnote [3]. I also did not hear argument on whether the three strikes regime precludes this approach.