Wairea v R

[2012] NZCA 423

IN THE COURT OF APPEAL OF NEW ZEALAND

CA322/2012
[2012] NZCA 423

BETWEEN  WAIKURA JAMIE WAIREA
Appellant

AND  THE QUEEN
Respondent

Hearing:         11 September 2012

Court:             Harrison, Simon France and Asher JJ

Counsel:         T W Fournier and K J McCoy for Appellant
P D Marshall for Respondent

Judgment:      17 September 2012 at 10.15 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

REASONS OF THE COURT

(Given by Harrison J)

Introduction

1. Waikura Wairea appeals against a sentence of ten years and seven months imprisonment imposed by Judge Garland in the District Court at Christchurch following his pleas of guilty to charges of aggravated robbery, demanding with menaces, assault with a weapon, recklessly discharging an airgun and conspiring to pervert the course of justice.[1]

   [1]      R v Wairea DC Christchurch CRI-2011-009-5577, 11 May 2012.

2. Mr Wairea appeals on the ground that the sentence was manifestly excessive because (a) the Judge imposed a starting point of eight years imprisonment for the index offending of aggravated robbery which was too high; (b) the Judge erred in principle in identifying the totality of the offending before taking into account relevant aggravating and mitigating personal features; (c) the Judge should have imposed overlapping cumulative and concurrent sentences to highlight the offending as one extended continuous or integrated series of acts, rather than as three independent and separate incidents; and (d) the overall totality of the offending was not in any event properly taken into account.  In the course of argument Mr Fournier for Mr Wairea compressed the last three particulars into one under the general umbrella of a breach of the totality principle. 

Facts

1. In chronological sequence, Mr Wairea’s offending was as follows:

(a)      Demanding with menaces

1. Late on 29 April 2011 Mr Wairea’s co-offender, Tony Hira, drove to a property at Surrey Street.  He confronted a man and woman who arrived at the address in their car.  He entered the backseat of their vehicle.  He was displaying a piece of wood with a nail in it which he held to the man’s head.  He told the couple not to leave until Mr Wairea arrived.  The purpose of the visit was to recover $300 in cash which Mr Hira had given to the female to purchase drugs. 

2. The man and woman escaped from the car but then met Mr Wairea.  He was holding a black BB airgun.  He pointed the weapon at the man and demanded keys for a motor vehicle which was parked nearby.  After obtaining the keys, Messrs Wairea and Hira drove away in the car. 

(b)     Assault with a weapon and reckless discharge of a firearm

1. On the evening of 3 May 2011 Messrs Wairea and Hira returned to the same Surrey Street address.  They confronted the same man they had met a few days earlier.  Mr Wairea struck him in the face with the butt of his BB airgun.  Mr Hira kicked him the face.  The man fell into a fence.  Mr Wairea shot him six times.  He was struck by pellets in the face, wrist and stomach, causing a bleeding nose and small welts. 

(c)       Aggravated robbery

1. At about 7 am on 16 May 2011 Mr Wairea and two associates arrived at a residential property in Parklands, Christchurch.  After the door was opened by the occupants, they forced their way inside.  Mr Wairea demanded to see the principal occupant.  Mr Wairea presented his BB airgun when told by a woman at the address that the occupant was away and there were children in the house. He pushed the woman aside when asked to leave and searched the home unsuccessfully for the occupier.  When leaving he took her bag containing some personal items including a digital camera to a value of over $500. 

(d)      Conspiracy to pervert the course of justice

1. In June and July 2011, while Mr Wairea was remanded in custody following his arrest on the previous charges, he made numerous phone calls to three associates.  He attempted to arrange for $3,000 to be made available to pay off witnesses at the trial.  His efforts were unsuccessful.

District Court

1. Judge Garland structured Mr Wairea’s sentence in this way:

   (a)        A starting point of eight years was adopted for the lead or index offence of aggravated robbery.  The aggravating factors were pre-meditation, the presence of multiple offenders, the theft of property and the adverse affect on the victim.

   (b)       A cumulative starting point of three years was adopted in total for the two offences committed at Surrey Street on 29 April and 3 May – the charges of demanding with menaces and assault with a weapon.

   (c)        A cumulative starting point of two and a half years was adopted on the charge of conspiring to pervert the course of justice.

   (d)       This total starting point of 13 and a half years imprisonment was discounted to 12 and a half years imprisonment to take into account the totality principle.

   (e)        The aggregate starting point was increased by nine months to 13 and a quarter years to take into account the factors that Mr Wairea, who was then aged 35 years, had 91 previous convictions including for violence, possessing offensive weapons, possessing firearms, threatening behaviour and dishonesty and had continued to offend while in custody.

   (f)        A discount of 20 per cent or 32 months for the guilty plea was applied against this adjusted starting point of 13 and a quarter years, to reach the end sentence of 10 years and seven months imprisonment.  This term was structured to incorporate sentences of seven years imprisonment for the aggravated robbery; a cumulative sentence of two years for demanding with menaces; concurrent sentences of one year and nine months imprisonment respectively for the assault with a weapon and reckless discharge of a firearm; and a cumulative sentence of one year and seven months imprisonment for conspiring to pervert the course of justice.

Decision

1. Mr Fournier’s primary submission is that the starting point of eight years imprisonment fixed by Judge Garland on the lead offence of aggravated robbery was too high.  He says that it should have been in the vicinity of six to six and a half years.  In particular he points out that there was no forced entry to the Parklands property or direct threat to the occupants; the weapon was never used other than to intimidate; there was no violence used against or physical injuries suffered by the occupants; and the estimated value of the property taken totalled $500.  Mr Marshall for the Crown submits that, while the starting point of eight years was stern, it was not excessive. 

2. However, Mr Wairea must establish that the end sentence of ten years and seven months imprisonment was excessive.  Its structure or composition is not decisive.  The question is whether that end sentence, especially where it was imposed for multiple offending committed over an extended period, properly reflects Mr Wairea’s overall culpability after taking proper account of personal circumstances.

3. Once this approach is adopted, it becomes apparent that the end sentence of ten years and seven months was, if anything, generous.  We agree with Mr Fournier that the starting point of eight years imprisonment adopted for the aggravated robbery was high.  But we are satisfied that any excess was more than offset by the cumulative starting point of three years imprisonment which the Judge adopted globally for the two offences at Surrey Street on 29 April and 3 May 2011. 

4. The charges of demanding with menaces and assault with a weapon carry maximum terms of imprisonment of seven years and five years imprisonment respectively.  While we appreciate that the Crown may have laid those particular charges rather than more serious charges for the purposes of encouraging guilty pleas, the circumstances of the offending on 3 May 2011 in particular would have justified a charge of injuring with intent to injure.  Conviction on that charge would have carried a maximum sentence of 14 years imprisonment. 

5. Even with the charges as laid, each would have justified cumulative starting points of three and four years respectively.  The offending was towards the top of the scale of seriousness for each.  On this approach, the Judge could have applied an aggregate cumulative starting point for both Surrey Street offences of seven years imprisonment instead of three years before applying the totality principle and allowing for other factors. 

6. In the result, even if the starting point adopted for the aggravated robbery offence should have been seven years, the starting point for the earlier Surrey Street offending can be described fairly as lenient.  A reduction of, say, one year on the index charge could properly have been offset by an increase of an equal or greater period for the preceding offences of demanding with menaces and assault with a weapon.  The final adjusted starting point on that analysis would be the same or greater than the one actually applied. 

7. We are not satisfied that the Judge erred in applying the totality principle.  It is immaterial whether the totality adjustment is carried out before or after personal circumstances are taken into account.  The end sentence properly reflected the totality of Mr Wairea’s serious offending committed over a three week time span. 

Result

1. Mr Wairea’s appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent