Waru v R

Case [2019] NZCA 347 31 July 2019

Type to search within this case.

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA513/2018
[2019] NZCA 347

BETWEEN	PATRICK FREDRICK ABRAHAM WARU Appellant
AND	THE QUEEN Respondent

Hearing:	25 June 2019 (further material received 3 July 2019)
Court:	Wild, Thomas and Muir JJ
Counsel:	M I Koya for Appellant K A Lummis for Respondent
Judgment:	31 July 2019 at 4.00 pm

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The appeal is allowed.

CThe sentence of 7 years and 10 months imprisonment under appeal is quashed. A sentence of 6 years and 10 months imprisonment is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

Introduction

Mr Waru appeals a sentence of 7 years and 10 months imprisonment imposed by Wylie J in the Auckland High Court.[1] Leave is required because the appeal was filed over a year out of time.
[1]R v Waru [2017] NZHC 1265.
Ultimately, this appeal was advanced on disparity grounds. When compared with the starting point of 5 years imprisonment adopted by Lang J when sentencing each of Mr Waru’s three co-offenders,[2] Mr Koya contended the starting point of 10½ years adopted by Wylie J was too high, and the resulting sentence manifestly unjust.

Leave

[2]R v Pani-Marsden [2017] NZHC 2696 at [6].

The Crown opposes leave to appeal because of the long delay. We agree with Crown counsel that Mr Waru’s explanation of this delay is unconvincing. However, on the ground that this appeal has merit, we grant leave.

Facts

Mr Waru and his three co-offenders Messrs Nuku, Briggs and Pani-Marsden, were inmates in Paremoremo Prison. On 19 October 2016 the four of them were having “landing time” out of their cells. Mr Waru asked a prison officer for a mop and bucket to clean his cell. When the officer returned with these and opened the grille, Mr Nuku forced the grille open, pushed the officer to the ground and jumped on top of him, punching him. Mr Waru then joined in the punching. Mr Waru was armed with sharpened pieces of metal, commonly called “shanks”, one tied to each of his hands with bed sheets. The first officer sustained three puncture wounds to the back of his neck and two wounds to his hands. When a second officer came to the assistance of the first, Mr Waru punched him and attempted to stab him, inflicting a puncture wound above his right ear.
Meanwhile Mr Briggs was swinging off the grille door, stomping on the heads of the two prison officers. A third officer then arrived and tried to grab Mr Briggs who kicked him in the face breaking the third officer’s nose. A fourth, fifth and finally a sixth officer arrived to assist. By this time there was a pile of bodies on the ground, including Mr Waru. Mr Waru’s co-offenders were seen kicking and punching these prison officers, including in the head.
Mr Nuku then dragged the second…

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 Waru v R

Details

AGLC: Waru v R [2019] NZCA 347
Case: [2019] NZCA 347
Decision Date: 31 July 2019 at 4.00 pm

CaseChat Overview and Summary

In the appeal of Waru v R, Patrick Fredrick Abraham Waru sought to appeal his sentence of 7 years and 10 months imprisonment imposed by Wylie J in the Auckland High Court. The appeal was advanced on disparity grounds, where the starting point of 10½ years adopted by Wylie J was considered too high and the resulting sentence manifestly unjust when compared with the starting point of 5 years imprisonment adopted by Lang J when sentencing each of Mr Waru’s three co-offenders. The Crown opposed leave to appeal due to the long delay, but the Court granted leave on the ground that the appeal had merit. The Court of Appeal found that the disparity of 5½ years between Wylie J’s 10½ year starting point for Mr Waru and the 5 year starting point adopted by Lang J for each of the three co-offenders was unjust. The Court reduced the sentence under appeal by 12 months, resulting in a sentence of 6 years and 10 months imprisonment. The application for an extension of time to appeal was granted, the appeal was allowed, and the sentence of 7 years and 10 months imprisonment under appeal was quashed, with a sentence of 6 years and 10 months imprisonment substituted.

Orders