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

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.
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

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

(a) Demanding with menaces

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.
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

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…

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 Wairea v R

Details

AGLC: Wairea v R [2012] NZCA 423
Case: [2012] NZCA 423
Decision Date: 17 September 2012

CaseChat Overview and Summary

Waikura Wairea appealed against a sentence of ten years and seven months imprisonment imposed by the District Court following his guilty pleas to aggravated robbery, demanding with menaces, assault with a weapon, recklessly discharging an airgun and conspiring to pervert the course of justice. The appeal focused on the sentence's excessiveness, arguing that the starting point for aggravated robbery was too high, the totality principle was misapplied, and the sentences should have been cumulative and concurrent rather than separate. The appeal was dismissed by the Court of Appeal.

The primary issue was whether the sentence was manifestly excessive. The arguments centered on the starting point for aggravated robbery, the application of the totality principle, and the structure of the sentences. The court considered whether the sentence adequately reflected Wairea's culpability and the seriousness of his offences, taking into account personal circumstances. The court needed to determine if the starting point for aggravated robbery was too high, if the totality principle was correctly applied, and if the sentence structure was appropriate.

The Court of Appeal found that although the starting point for aggravated robbery was high, the overall sentence was not excessive. The court noted that the cumulative starting point for the earlier offences at Surrey Street was lenient, justifying a higher starting point for aggravated robbery. The court concluded that the end sentence properly reflected the totality of Wairea's serious offending over a three-week period. The appeal was dismissed, and the sentence was upheld.

Orders