Wira v R - [2021] NZCA 98

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA698/2020
[2021] NZCA 98

BETWEEN	DAARIAN AKUHATA WIRA Appellant
AND	THE QUEEN Respondent

Hearing:	23 February 2021
Court:	Brown, Katz and Edwards JJ
Counsel:	S M H McManus for Appellant M R L Davie for Respondent
Judgment:	29 March 2021 at 11.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal against sentence is allowed.
CThe sentence of five years and six months’ imprisonment on the charge of aggravated robbery is set aside. A sentence of four years and seven months’ imprisonment is substituted. The other sentences imposed in the District Court are confirmed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Edwards J)

Mr Wira pleaded guilty to one charge of aggravated robbery, one charge of unlawful possession of firearms, five charges of using a document, two charges of failing to stop and two charges of dangerous driving. He was sentenced in the District Court at Christchurch to a total of five years and six months’ imprisonment.[1] He now appeals that sentence on the ground that it is manifestly excessive due to an inadequate discount for his personal circumstances.
[1]R v Wira [2020] NZDC 1949 [Sentencing judgment].
The appeal is more than six months out of time. Mr Wira has filed an affidavit which explains the delay. The Crown accepts there is no prejudice in hearing the appeal and does not oppose an extension of time. We grant an extension of time to bring the appeal accordingly.

The offending

The charges arise out of events on 28 January 2019. On the previous day Mr Wira’s co-offenders had burgled the complainant’s residence while it was unoccupied. The complainant was in his garage cleaning up when Mr Wira and three co‑offenders returned to the house. The complainant tried to summon help from a neighbour. When this was unsuccessful, he pulled out his phone to call the police. Mr Wira snatched the phone from the complainant’s hand.
The offenders demanded that the complainant go back to his house and, when he refused, Mr Wira asked him whether he wanted to see a gun. The offenders proceeded to stomp and kick the complainant repeatedly. He was then dragged back to the lounge of his house.
The complainant was instructed to call the police and tell them that the motor vehicle and motorcycle stolen the previous evening had now been returned. They also demanded that the complainant write a letter changing ownership of the vehicles to one of their associates.
The complainant sustained bruising and swelling to the left-hand side of his face, cuts to the inside of his lips, swelling and pain to his ribs, and a graze on his elbow. He has suffered ongoing problems with memory loss, headaches and blackouts as a result of the assault.
During a search of the complainant’s house, Mr Wira located the keys to the complainant’s gun safe and uplifted four rifles. This…

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 Wira v R

Details

AGLC: Wira v R [2021] NZCA 98
Case: [2021] NZCA 98
Decision Date: 29 March 2021 at 11.30 am

CaseChat Overview and Summary

In Wira v R, the Court of Appeal of New Zealand heard an appeal against the sentence of Darrian Akuhata Wira for aggravated robbery and other related charges. Wira's appeal centred on the claim that the sentence of five years and six months' imprisonment was manifestly excessive due to an inadequate discount for his personal circumstances. The court granted an extension of time to hear the appeal, accepting Wira's explanation for the delay and noting the Crown's lack of opposition to the extension.

The court identified the legal issues as whether the discount applied for Wira's personal circumstances was inadequate and whether the overall sentence was manifestly excessive. The court held that the sentencing judge appropriately recognised the potential for rehabilitation but overlooked other factors that mitigated Wira's culpability. These included Wira's exposure to violence and instability in his childhood, his relatively young age at the time of the offending, and his mental health issues. The court concluded that a discount of at least 20 per cent was warranted, rather than the 20 per cent discount applied by the sentencing judge. After applying this discount, the court determined that an end sentence of four years and seven months' imprisonment was appropriate.

The court set aside the original sentence and substituted a sentence of four years and seven months' imprisonment for the charge of aggravated robbery, while confirming the other sentences imposed by the District Court. The decision highlights the importance of considering an offender's background and personal circumstances in determining an appropriate sentence.

Orders