R v Wira - [2017] NZHC 2755

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CRI-2014-088-2907 [2017] NZHC 2755

THE QUEEN

v

DAVID DENNIS KARANGA WIRA

Charges:
Sexual violation by rape (2); Sexual violation by unlawful

sexual connection (2); Attempted sexual violation; Indecent assault (6)

Counsel:

N J Dore for Crown
S Thode for Prisoner

Sentenced:

10 November 2017

Plea:

Not Guilty

SENTENCING NOTES OF BREWER J

Solicitors:
Marsden Woods Inskip & Smith (Whangarei) for Crown

R v WIRA [2017] NZHC 2755 [10 November 2017]

Thode Utting & Co (Auckland) for Prisoner

Introduction

[1] Mr Wira, you were found guilty by the jury of offending against [Ms A] and against [Ms B]. My task today is to sentence you for that offending.

[2] I also have to give you a third strike warning.

Facts

[3] Your first victim was [Ms A]. She was 54 years old and a stranger to you. She was out walking her dogs when she encountered you in the street. [Ms A] is intellectually disabled and this was immediately obvious to you when you spoke to her. You knew she was vulnerable and you immediately took advantage of that.

[4] You led her by the hand to a more secluded place and, without going into details, you did these things to her:

• Charge 1, indecent assault: you put her hand on your penis.

• Charge 2, indecent assault: you kissed her, putting your tongue in her mouth.

•Charge 3, sexual violation: you forced your hand down her pants and thrust your finger or fingers into her vagina.

• Charge 4, indecent assault: you touched her breasts.

[5] [Ms A] struggled as best she could but you physically restrained her. Her trousers were ripped. During the encounter you masturbated yourself and ejaculated onto the ground before wiping your penis on the front of [Ms A’s] jersey. That left the DNA which identified you.

[6] [Ms B] was 25 years old and living in a self-contained flat in a managed accommodation complex for the intellectually disabled. [Ms B] is intellectually disabled, and that is obvious as soon as you talk to her.

[7] On 16 September 2014, you approached [Ms B] at her flat. She was a stranger to you. As with [Ms A], it was immediately obvious to you that [Ms B] was vulnerable and you immediately took advantage of that. You went inside her flat and almost immediately began to offend against her sexually:

•Charge 5, indecent assault: you kissed [Ms B] and forced your tongue into her mouth.

• Charge 6, rape: you took [Ms B] into her bedroom and raped her.

• Charge 7, rape: at a subsequent time, on the same day, you again raped [Ms B].

• Charge 8, sexual violation: you put your fingers into her vagina.

• Charge 9, indecent assault: you forced [Ms B’s] hand onto your penis.

• Charge 10, attempted sexual violation: on the occasion when you returned to

[Ms B’s] flat,…

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 Wira

Details

AGLC: R v Wira [2017] NZHC 2755
Case: [2017] NZHC 2755
Decision Date: 10 November 2017

CaseChat Overview and Summary

The case of R v Wira involved the sentencing of David Dennis Karanga Wira, who was found guilty of multiple charges of sexual violation against two victims, [Ms A] and [Ms B], both of whom were intellectually disabled. The court was tasked with determining an appropriate sentence for these offences, which also involved the imposition of a third strike warning under New Zealand's three strikes law. The legal issues included setting a starting point for the sentence, considering cumulative sentences, and deciding on the minimum period of imprisonment.

The court began by assessing the starting point for the sentence, considering the separate but similar nature of the offences against each victim. The court found the vulnerability of the victims due to their intellectual disabilities to be a significant aggravating factor. The court decided on a starting point of 12 years for the offences against [Ms B] and five years for those against [Ms A], resulting in an overall starting point of 17 years. However, after comparing the case with similar cases, the court reduced the overall starting point to 13 years to reflect the gravity of the offending.

Regarding personal factors, the court considered but ultimately decided against increasing the starting point due to the defendant's criminal history and attempts to mislead the fitness to stand trial assessors. The court also decided against reducing the starting point for personal factors such as the defendant's abusive upbringing and expressed motivation to change. The court then determined a minimum period of imprisonment, finding that but for the three strikes law, it would have imposed a minimum period of two-thirds of the end sentence to adequately address the harm caused and the risk posed by the defendant.

The final sentence imposed was 13 years' imprisonment, with concurrent sentences for the offences against [Ms B] and cumulative sentences for those against [Ms A]. The court also issued a third strike warning, detailing the severe consequences of further serious violent convictions. The court directed that outstanding fines, reparation, court costs, and enforcement fees be remitted.

Orders