Wereta v Police
[2023] NZHC 629
•27 March 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-485
[2023] NZHC 629
BETWEEN RAWIRI WERETA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 20 March 2023 Appearances:
M R Douglas for Appellant
H R Smith for the Respondent
Judgment:
27 March 2023
JUDGMENT OF WYLIE J
[Appeal against sentence]
This judgment was delivered by Justice Wylie On 27 March 2023 at 3.00 pm
Registrar/Deputy Registrar Date:…………………………
Solicitors/counsel:
M R Douglas, Tauranga
Meredith Connell, Crown Solicitor, Auckland
RAWIRI WERETA v NEW ZEALAND POLICE [2023] NZHC 629 [27 March 2023]
Introduction
[1] After entering guilty pleas to two charges—one of assault with intent to injure and the other of injuring with intent to injure—the appellant, Rawiri Wereta, was sentenced by Judge Bonnar KC in the District Court at North Shore to two years and three months’ imprisonment.1
[2] Mr Wereta appeals his sentence, arguing that it is manifestly excessive. He says that:
(a)the starting point of two years and six months’ imprisonment adopted by the Judge for the lead charge of injuring with intent to injure was too high; and
(b)a three month reduction for totality allowed by the Judge was insufficient, given that the sentence is to be served as a cumulative sentence.
[3] The respondent opposes the appeal. It is submitted on behalf of the police that the starting point adopted was within the available range and that the reduction for totality made by the Judge was sufficient. As a result, it is said that the end sentence was not manifestly excessive and that the appeal should be dismissed.
The offending
[4]I gratefully adopt the Judge’s summary of the relevant facts:
…
[2] Dealing with the facts. First, the assault with intent to injure of Corrections Officer Duffield. As everyone knows, you are a sentenced prisoner at Auckland Prison. Mr Duffield is a Corrections Officer. On the afternoon of 2 November, Mr Duffield was a member of a team escorting you back to your cell. You were searched by a Corrections Officer. Once that search was complete, without provocation or warning, you struck out with your fists and punched Mr Duffield in the face. You then stood in the corner of the landing and were restrained by Corrections staff. The summary tells me Mr Duffield sustained a neck sprain, jaw sprain and open wounds on his lip. You exercised your right not to comment.
1 Police v Wereta [2022] NZDC 24409.
[3] The offence of injuring Mr Dansey follows a similar pattern. On the morning of 5 May 2022 you were being unlocked from your cell by Mr Dansey and other Corrections Officers. You stepped out of your cell, turned quickly towards Mr Dansey and punched him twice in the face with extreme force. You were then restrained by other officers but resisted. Mr Dansey sustained a broken jaw which required surgery. He also sustained a concussion which has resulted in ongoing issues for him. Again, you declined to comment.
[4] I have read victim impact statements of both Mr Dansey and Mr Duffield. Mr Dansey refers to his physical injuries, the broken jaw, and the consequences for him of that. His sleep was affected. He has ongoing issues because of the concussion, involving regular headaches and migraines. At the date he wrote his victim impact statement, he had been unable to return to work.
[5] Mr Duffield refers to his injuries and indicates that he had to live with that, and that he could only eat soft foods for about a week following your assault on him. He had to work reduced hours for a month. He notes that he has been psychologically affected by your assault and that his senses at work are heightened; he feels more alert to his surroundings. He describes that as being exhausting.
The sentencing decision
[5] The Judge treated the offence of injuring with intent to injure as the lead offence. It was common ground that the Court of Appeal’s decision in Nuku v R was relevant in setting the starting point for this offending.2 It was also common ground that aggravating factors of Mr Wereta’s offending were that:
(a)the attack was to the head;
(b)serious injuries (including a broken jaw) were inflicted; and
(c)the attack was on a person carrying out his duties as a Corrections Officer.
[6] The Judge considered that the charge of injuring with intent to injure fell towards the top end of band two discussed in Nuku and he adopted a starting point of two years and six months’ imprisonment for the offence. He considered that the appropriate starting point would have been 18 months’ imprisonment for the assault with intent to injure charge but, considering totality, adopted instead a global starting
2 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
point of three years and four months’ imprisonment. The Judge declined to uplift this global starting point to recognise Mr Wereta’s criminal history. Rather, he reduced the global starting point by 25 per cent to acknowledge Mr Wereta’s guilty pleas. A further adjustment for the fact that the sentence was going to be served cumulatively resulted in an end sentence of two years and three months’ imprisonment, to be served cumulatively on Mr Wereta’s existing sentences.
The appeal
[7] Mr Wereta’s appeal is brought pursuant to s 244 of the Criminal Procedure Act 2011. The appeal is governed by s 250 of that Act. The Court must allow the appeal if it is satisfied that there was an error in the sentence imposed and that a different sentence should have been imposed. In any other case, the Court must dismiss the appeal.3
[8] For Mr Wereta to succeed on the appeal, he must demonstrate that there was a material error that has resulted in a manifestly excessive sentence.4 The Court does not start afresh nor simply substitute its own opinion for that of the original sentencer.5 Whether or not a sentence is manifestly excessive falls to be determined having regard to the sentence actually passed, rather than the process by which it was reached.
Submissions
[9] Mr Douglas, appearing for Mr Wereta, referred to the two cases relied on by the police before the Judge—R v Hamilton,6 and R v Ratima.7 He argued that Mr Wereta’s offending was less serious than the offending in either case and that a lower starting point should have been adopted. He pointed out that in Hamilton the starting point adopted was two years six months. This offending involved a prolonged attack against a vulnerable victim who was outnumbered by his attackers. The victim suffered significant injuries. In Ratima the victim was also vulnerable. Mr Douglas argued that, using these cases as comparators, the starting point for Mr Wereta’s offending should have been two years’ imprisonment.
3 Criminal Procedure Act 2011, s 250(3).
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[35].
5 At [30].
6 R v Hamilton [2019] NZHC 956.
7 R v Ratima [2019] NZHC 1586.
[10] Turning to totality, Mr Douglas referred to s 85 of the Sentencing Act 2002 and to the decision of the Court of Appeal in Ngamoki v R.8 He argued that the discount for totality should have been six months, to ensure that the total sentence being served by Mr Wereta is not disproportionately long or crushing for him.
[11] Mr Bell, for the Police, argued that the starting point of two years and six months adopted by the Judge was well within the available range. He submitted that the Judge correctly identified the relevant aggravating factors and that they placed the offending at the top of band two discussed in Nuku. He accepted that the injuries suffered by the victim in Hamilton were more serious than those suffered by Mr Wereta’s victim, but argued that Ratima involved broadly similar offending. He also observed that the victims in both Hamilton and Ratima were fellow prisoners, whereas Mr Wereta’s offending was against Corrections Officers. He put it to me that this was an aggravating factor. He also referred to the decision of Filifili v Police,9 where a starting point of two years’ imprisonment imposed by the District Court for injuring with reckless disregard and common assault was upheld on appeal by this Court.
[12] Mr Bell further argued that the totality adjustment allowed by the Judge was appropriate, given that Mr Wereta is already serving a lengthy term of imprisonment. He submitted that a stern response was required for reoffending whilst in prison, especially where the offending went to the maintenance of discipline needed to manage the prison effectively. He observed that the Judge refrained from uplifting the sentence notwithstanding Mr Wereta’s criminal history. He concluded by submitting that the end sentence imposed was not manifestly excessive.
Analysis
[13] The lead offence for sentencing purposes was the offence of injuring with intent to injure. It carries a maximum penalty of five years’ imprisonment,10 as opposed to the offence of assault with intent to injure which carries a maximum sentence of three years’ imprisonment.11
8 Ngamoki v R [2022] NZCA 171.
9 Filifili v Police [2021] NZHC 1803.
10 Crimes Act 1961, s 189(2)
11 Section 193.
[14] The guideline decision for injuring with intent to injure is the decision of the Court of Appeal in Nuku v R.12 The Court there identified three bands for such offending. Which band any particular offending fits into depends upon the number of aggravating features that are present. Those features contribute to the seriousness of the conduct and to the criminality involved, although there is always a need for the sentencing Judge to stand back and evaluate the seriousness of each particular factor and combination of factors present in the particular case in order to determine the appropriate sentencing band and the starting point. The Court adopted the various aggravating features discussed in R v Taueki.13 Those features include the extent of the violence inflicted, the degree of premeditation, the seriousness of the injuries suffered, the use of weapons, attacks to the head, offending to facilitate a crime, offending to deter the course of justice, multiple attackers, the vulnerability of the victim, home invasion, gang warfare, offending against a law enforcement officer or other public official carrying out his or her duties, vigilante action and hate crime.
[15]As noted, Mr Wereta’s offending involved three of these aggravating features:
(a)his attack on the Corrections Officer was to the Officer’s head;
(b)the Corrections Officer suffered serious injuries, including a broken jaw; and
(c)the attack was to a Corrections Officer, who was carrying out his official duties.14
[16]The attack was also unprovoked.
[17] Pursuant to the guidelines set out in Nuku, offending which involves three or fewer of the Taueki aggravating factors falls into band two. For band two offending the approximate starting point is up to three years’ imprisonment.
12 Nuku v R, above n 2.
13 R v Taueki [2005] 3 NZLR 372 (CA).
14 This is an aggravating feature which the Court is required to take into account pursuant to s 9(fa) of the Sentencing Act 2002.
[18] Standing back and considering Mr Wereta’s offending in the round, in my judgment, the Judge did not err when he placed Mr Wereta’s injuring with intent to injure offending in band two discussed in Nuku. Nor did he err in adopting a starting point sentence of two years and six months for this offending.
[19] The stating point adopted was consistent with like starting points adopted in similar cases. I refer in particular to:
(a)Gillies v R.15 Mr Gillies punched a Corrections Officer. The blow knocked the Officer out. Mr Gillies then punched the Officer again, at which point the Officer fell to the ground. The Officer suffered swelling to his forehead and jaw and bleeding from his right eye. In addition to the immediate effects of the attack, the Officer also suffered ongoing physical and psychological effects. Mr Gillies was charged with injuring with to injure and assault. The sentencing Judge adopted a starting point of three years for the injuring with intent to injure offending. The Court of Appeal agreed with the starting point noting as follows:
[22] The Judge then, as both Taueki and Nuku require, looked at Mr Gillies' offending in the round, rather than undertaking a mechanistic application of the culpability factors. On that basis he concluded, as do we, that a three year starting point was appropriate. In our view, this is better characterised as Band Two Taueki offending, but at the very top of the band. This was an attack to the head, it resulted in the victim's unconsciousness and had long-term consequences, and it was an unprovoked attack on a prison officer carrying out his duties.
(b)R v Wright,16 where the Court of Appeal approved a three year starting point for an offender who attacked a Police Officer. The attack involved a high level of violence and it lasted for several minutes. The Officer suffered extensive cuts and bruises, some of which had to be stitched. The Officer also suffered from delayed concussion. The offender was charged with injuring with intent to injure. The sentencing Judge adopted a starting point of three years’ imprisonment.
15 Gillies v R [2014] NZCA 115.
16 R v Wright [2014] NZCA 119.
The Court of Appeal considered that the factors going to culpability were, the degree of violence involved, the attack to the head, the resulting harm and that it was an attack on a Police Officer.17 The Court agreed that a starting point of three years was within range.18
[20] Given the aggravating features involved and the unprovoked nature of the attack, in my judgment, the Judge’s starting point was well within the available range. It was not too high.
[21]I now turn to consider whether the totality principle was infringed.
[22]Section 85 of the Sentencing Act provides as follows:
85 Court to consider totality of offending
(1)Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.
(2)If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
(3)If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.
(4)If only concurrent sentences are to be imposed,—
(a)the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and
(b)each of the lesser offences must receive the penalty appropriate to that offence.
[23] Here, it is not altogether clear how the Judge approached totality. As noted, he considered that the total initial starting points for both offences could take the total
17 At [19].; And see R v Waitokia [2021] NZHC 2905.
18 Wright, above n 16, at [21].
sentence to one of four years or 48 months. He applied the totality principle and concluded that the appropriate starting point for both offences was three years and four months’ imprisonment—or 40 months. In effect, he allowed an eight month deduction for totality. He also declined to apply an uplift to take account of Mr Wereta’s appalling criminal history. (The Judge noted that Mr Wereta had been sentenced to prison 44 times in 13 separate sentencings, noting that Mr Wereta’s last nine sentences of imprisonment had involved cumulative sentences). The Judge noted that he had to guard against double counting and that therefore he was not going to uplift the starting point for Mr Wereta’s criminal history. He allowed a discount for the guilty pleas and then made what he described as a further nominal adjustment—to take account of the fact that the sentence he was intending to impose was going to be cumulative on existing sentences already being served by Mr Wereta. He deducted a further three months for this factor and imposed an end sentence of two years and three months’ imprisonment.
[24] The discounts for totality (including the imposition of cumulative sentences) were in total 11 months or perhaps more if one allows for the uplift that would normally have been imposed for Mr Wereta’s criminal history—say six months’ imprisonment.
[25] It is clear from Mr Wereta’s criminal history that he is a recidivist, violent offender. The Court of Appeal had stated that for such offending in the prison context, the principles of deterrence and denunciation can be prioritised.19 In Ngamoki the Court was considering whether an additional 23 months’ imprisonment for violent offences committed whilst in prison was excessive. The Court agreed with the High Court and found that the addition of a further 23 months’ imprisonment for two offences committed in prison was not disproportionate. The Court noted:20
This is not a case where [the offender’s] release date or potential release date is extended so far into the future by the additional sentence that the penalty could be seen to be disproportionate to the gravity of [his] serious, violent offending”.
19 Ngamoki v R, above n 8, at [16].
20 At [31].
[26] I consider that the same is true for Mr Wereta. He is currently serving a lengthy term of imprisonment. He was sentenced to six years’ imprisonment on a charge of aggravated robbery on 1 February 2013. Concurrent sentences of two years’ imprisonment were imposed on charges of possession of an offensive weapon, assault with intent to rob and unlawfully taking a motor vehicle. Cumulative sentences of two years’ imprisonment for each of three charges of assault with intent to injure were also imposed. Mr Wereta has subsequently been convicted of further violent offending, which occurred while he was serving his sentence. He was sentenced to further cumulative sentences of imprisonment on all but two of his convictions. The statutory end date of the sentences Mr Wereta is currently serving is 31 January 2034. Counsel agree that taking into account the cumulative sentences involved, the total sentence being served by Mr Wereta is 24 years and four months’ imprisonment. They further advise that the earlier statutory end date of 31 January 2034 is likely to be explained by Mr Wereta serving time in custody prior to being sentenced in 2013. In any event, an additional sentence of two years and three months’ imprisonment is only a modest increase to this already substantial term of imprisonment.
[27] I have also taken into account that Mr Wereta’s offending was against Corrections Officers whilst in prison. I note the following:
(a)the decision of the Court of Appeal in R v Connelly.21 There, the Court endorsed the decision in R v Ali22 and held that if a prisoner serving a sentence for previous violent offending commits a further violent offence while in prison, the application of the totality principle can only be minimal.23 The Court stated:24
Re-offending, particularly violent re-offending, while in prison, must have significant consequences for the offender, notwithstanding that the outcome is a very lengthy period of imprisonment.
and
21 R v Connelly [2010] NZCA 52.
22 R v Ali [1998] 2 Cr App R(S) 123 (CA).
23 R v Connelly, above n 21, at [31].
24 At [31].
(b)the decision of the Court of Appeal in Tryselaar v R where the Court noted as follows:25
Offending in the prison environment, particularly where that offending goes to the maintenance of the discipline needed to effectively manage a penal institution, demands a stern response. That would be seriously undermined if sentences for such offending required adjustment to reflect the fact that the offender is already serving a sentence of imprisonment.
[28] In my judgment, an additional two years and three months’ imprisonment is not disproportionate to the gravity of Mr Wereta’s overall offending. He committed two violent and unprovoked attacks against Corrections Officers causing significant injuries to both. He has a long history of violent offending. The totality discount— no matter how it was calculated—was, in my judgment, adequate.
[29]For the reasons I have set out, the appeal against sentence is dismissed.
Wylie J
25 Trysellar v R [2012] NZCA 353 at [18].
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