Watene v R
[2014] NZCA 381
•11 August 2014 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA807/2013 [2014] NZCA 381 |
| BETWEEN | CYRIL MATAROA WATENE |
| AND | THE QUEEN |
| Hearing: | 30 July 2014 |
Court: | Harrison, Goddard, Andrews JJ |
Counsel: | T Epati and R W Donnelly for Appellant |
Judgment: | 11 August 2014 at 10.30 am |
JUDGMENT OF THE COURT
AThe application to extend time to appeal is granted.
B The appeal against sentence is allowed. The sentence of eight years and two months’ imprisonment, with a minimum period of imprisonment of five years, is quashed.
CA sentence of seven years three months’ imprisonment, with a minimum period of imprisonment of three years seven months’ imprisonment, is imposed in substitution.
____________________________________________________________________
REASONS OF THE COURT
(Given by Andrews J)
Introduction
Cyril Watene has appealed against the sentence of eight years and two months’ imprisonment with a minimum period of imprisonment of five years, imposed by Judge Gibson in the Gisborne District Court on 2 August 2013, after Mr Watene had pleaded guilty to charges of wounding with intent to cause grievous bodily harm, injuring with intent to injure, possession of an offensive weapon, and common assault.[1]
[1]R v Watene DC Gisborne CRI-2013-016-980, 2 August 2013.
The appeal was filed out of time and an extension of time to appeal is sought. The reasons for the delay have been explained. The Crown has suffered no prejudice as a result. Accordingly, time is extended for the appeal to be brought.
Facts
On 24 April 2013, Mr Watene was arrested on a charge of wilful damage, caused at the address of his partner in Munro Street, Gisborne. He was bailed on conditions including that he not contact his partner, and not enter Munro Street.
The next day, 25 April 2013, Mr Watene walked along Munro Street, carrying his two year old son on his shoulders. He walked past a house occupied by supporters or members of the Mongrel Mob gang. Mr Watene is a member of the rival Mangu Kaha Aotearoa gang. Shortly after he had walked past the house the first victim S, a 15 year old girl, went with other family members to a primary school in Munro Street, to kick a ball around. Mr Watene called out a Black Power slogan and S responded with a Mongrel Mob slogan. Mr Watene then walked up to S and punched her on the left side of her face.
S’s brother L saw what had occurred as he was driving in a car on Munro Street. He got out of his vehicle and there was a brief stand-off between L and Mr Watene. Mr Watene walked away with his child on his shoulders and went inside his partner’s address. He was agitated and angry that he had been confronted when holding a child. S returned to her home.
A few minutes later, Mr Watene was seen walking towards S’s house, carrying a baseball bat and a large knife. He jumped the fence into the front yard of the property where the family was gathered. He struck the second victim C (the father of S and L) on the right side of his forehead, with the bat. When C grabbed hold of Mr Watene to prevent further blows, Mr Watene thrust his knife into C’s left side. L rushed to help his father but was hit on the head with the baseball bat. Mr Watene then left.
C received significant injuries, suffering a split to his forehead which required suturing, a fractured skull, a punctured lung which required immediate surgery, and a 10 cm deep wound to his chest. This particular wound showed that the tip of the knife blade had penetrated to within approximately one millimetre from C’s heart. He was hospitalised for 20 days. S and L suffered less serious injuries.
District Court sentencing
The pre-sentence report recorded that Mr Watene expressed remorse and took full responsibility for his actions. He was very involved in his children’s lives and acknowledged the impact that his offending would have on them. Mr Watene had stated that he was “shattered” at what had occurred and acknowledged that he did not think about the consequences of his actions. He was not able to explain why he turned to violent behaviour and wanted to change and understand why that occurred. He did not minimise the amount of violence used and understood the severity of force used.
The Judge adopted a starting point of nine years’ imprisonment on the lead offence of wounding with intent to cause grievous bodily harm, placing the offending at the lower end of band 3 in R v Taueki.[2] He considered that matters contributing to the seriousness of the offending were extreme violence, premeditation, serious injury, use of weapons, attacks to the head and, effectively, a home invasion. The Judge concluded that the combination of these features was particularly grave, as Mr Watene’s assault on C was unprovoked, gratuitous, and had led to serious injury.
[2]R v Taueki [2005] 3 NZLR 372 (CA).
The Judge imposed an uplift of six months for the totality of Mr Watene’s offending, and a further uplift of nine months on account of his previous convictions. He then allowed a discount of 20 per cent for Mr Watene’s guilty pleas. The Judge declined to allow any greater discount because he was not satisfied that there was any genuine remorse. He stated that there had been no expression of remorse through the pre-sentence report. Further, the Judge concluded that the offences “would not have been difficult to prove”.[3] Accordingly, the end sentence imposed was eight years and two months’ imprisonment.
[3]At [14].
The Judge accepted the Crown’s submission that a minimum period of imprisonment was necessary. In setting the minimum period the Judge considered the offending, and concluded that there were no significant personal circumstances to take into account. He ordered a minimum period of imprisonment of five years.
Submissions on appeal
Ms Epati submitted for Mr Watene that the Judge had adopted a starting point that was too high. Mr Watene’s offending was properly characterised as being in the middle of R v Taueki band 2, and the starting point should have been seven years rather than nine. Secondly, she submitted that the nature of Mr Watene’s previous offending in more recent years would have justified only a modest uplift. Thirdly, she submitted that the Judge’s discount for Mr Watene’s guilty pleas failed to recognise his expressions of remorse, as recorded in the pre-sentence report. The Judge was wrong to say that no remorse had been expressed. Finally, Ms Epati submitted that there was no justification for the minimum period of imprisonment of five years (approximately 61 per cent) given Mr Watene’s early guilty pleas. If a minimum period of imprisonment were required, there was no reason for it to be more than half of the sentence.
For the Crown, Ms Bicknell submitted that the nature of Mr Watene’s offending clearly placed it at the top of R v Taueki band 2, if not squarely within band 3. Next, she submitted that Mr Watene’s lengthy list of previous convictions demonstrated the need for a deterrent sentence, such that the uplift of nine months could not be challenged. In relation to the discounts for his guilty pleas and remorse, Ms Bicknell accepted that Mr Watene’s remorse should have been addressed separately, but submitted that it would have been open to the Judge to conclude that his remorse may well have been no more than a response to his current predicament.[4] As to the overall sentence, Ms Bicknell also noted that no uplift was applied on account of the fact that Mr Watene had committed the offences the day after having been released on bail, and in breach of express conditions of his bail. An uplift would have been justified on that ground.
[4]See Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
As to the minimum period of imprisonment, Ms Bicknell accepted that the Judge did not expressly refer to Mr Watene’s guilty pleas, but submitted that that did not make the minimum period of imprisonment of five years manifestly excessive. The Judge properly focused on the need for deterrence and public protection.
Decision
While counsel focused their submissions on the presence or absence of individual aggravating features identified in R v Taueki, it must be remembered that they are set out as a guide for assessing the seriousness of the offending, and thus the starting point for sentencing. Overall, Mr Watene’s offending involved serious violence where he, after the initial encounter with S, went away and returned shortly thereafter armed with a baseball bat and a knife. He then used both the bat and the knife in his attack on C, who suffered serious injuries.
Having assessed the seriousness of the lead offence, adjustments had to be made for the totality of the offending, and to recognise any demonstrated need for a deterrent sentence, Mr Watene’s early guilty pleas, and his expression of remorse. The end sentence must be what is appropriate for the individual circumstances of the offending and the offender, in accordance with the principles and purposes of the Sentencing Act 2002.
We are satisfied that the starting point of nine years’ imprisonment adopted by Judge Gibson, while stern, was within range. Our concern that he may have been unduly influenced by a focus on the number of aggravating factors, rather than by an overall assessment of culpability, is allayed by his justified conclusion that this offending was particularly grave.
However, we part from the Judge on two other aspects of the sentence. First, we consider that an overall uplift for totality and previous offending of only one year was appropriate, to adjust the starting point to 10 years’ imprisonment. Second, and more significantly, we are satisfied that the Judge erred in failing to allow a discount of between 25 per cent and 33 per cent for Mr Watene’s early pleas of guilty and his remorse. Contrary to the Judge, we are satisfied that both Mr Watene’s early pleas and his acceptance of full responsibility and expression of remorse to the pre‑sentence report writer were genuine. There was nothing on the face of the record to suggest otherwise.
Taking these factors into account, we are satisfied that an appropriate end sentence for this offending is seven years and three months.
We are not satisfied that the Judge erred in imposing a minimum period of imprisonment. However, we consider that a period reflecting over 60 per cent of the finite sentence was excessive. We agree with Ms Epati that a period of no more than half of the sentence is appropriate. In our judgment that period is three years and seven months.
Result
The appeal against sentence is allowed. The sentence of eight years and two months’ imprisonment, with a minimum period of imprisonment of five years, is quashed and a sentence of seven years three months’ imprisonment, with a minimum period of imprisonment of three years seven months’ imprisonment, is imposed in its place.
Solicitors:
Rishworth Wall & Mathieson, Gisborne for Appellant
Crown Law Office, Wellington for Respondent
19