Wira v R
[2021] NZCA 98
•29 March 2021 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA698/2020 [2021] NZCA 98 |
| BETWEEN | DAARIAN AKUHATA WIRA |
| AND | THE QUEEN |
| Hearing: | 23 February 2021 |
Court: | Brown, Katz and Edwards JJ |
Counsel: | S M H McManus for Appellant |
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 offending gave rise to the firearms charge.
The complainant’s watch, toolbox, EFTPOS card and keys to a second motor vehicle were also stolen at this time. Mr Wira subsequently made five separate purchases using the complainant’s EFTPOS card, giving rise to the charges of using a document.
Later that afternoon, at about 4.00 pm, the police saw Mr Wira driving the stolen vehicle. They began a pursuit using a marked patrol car with activated red and blue flashing lights. Mr Wira drove on to a grass verge on the side of the road, increased his speed to 120 km/h, and drove through a marked stop sign. The police abandoned the pursuit. This offending gave rise to one charge of failing to stop and one charge of dangerous driving.
The police recommenced their pursuit that evening when they saw Mr Wira driving the stolen vehicle. Mr Wira increased his speed to approximately 100 km/h and turned his headlights off. He drove on the wrong side of the road and performed a U-turn while travelling at speed. At times he reached 150 km/h. The police successfully punctured Mr Wira’s tyres but he continued to drive until the police were able to force the vehicle from the road. This offending gave rise to one charge each of failing to stop and dangerous driving. Mr Wira fled the scene. He declined to comment when later apprehended by police.
The sentencing judgment
Judge O’Driscoll gave a sentencing indication to Mr Wira on 23 October 2019.[2] The Judge took the aggravated robbery charge as the lead charge.[3] The following were identified as aggravating features of the offending: multiple offenders, home invasion, violence used, premeditation, value of property taken, and the impact on the complainant.[4] After reviewing comparable cases, the Judge adopted a starting point of seven years and six months’ imprisonment for the aggravated robbery charge.[5]
[2]R v Woodstock [2019] NZDC 21007 [Sentencing indication].
[3]At [34].
[4]Sentencing indication, above n 2, at [38].
[5]At [40]–[44].
That starting point was uplifted by three months for the using a document charges and two months for the dangerous driving charges.[6]
[6]At [49].
At the time of the sentencing indication, Mr Wira faced two firearms charges. The first arose out of the aggravated robbery and the second arose out of a later search of the home of a co-offender. The Judge said that a concurrent sentence of 18 months was appropriate in relation to both firearms’ charges.[7]
[7]At [51].
The Judge indicated that he would not uplift the sentence for Mr Wira’s criminal history but would apply an uplift of six months to recognise the fact that the offending occurred while Mr Wira was subject to release conditions.[8]
[8]At [54].
A 20 per cent discount was indicated for the guilty plea.[9] The Judge also said that, if accepted, the sentence would be further reduced by nine months to take into account the totality principle.[10] In making that indication, the Judge pointed out he had not increased Mr Wira’s sentence to reflect his previous convictions and had not imposed a cumulative sentence on the second firearms charge.
[9]At [56].
[10]At [63].
The total end sentence indicated was six years’ imprisonment.[11]
[11]At [67].
Mr Wira accepted that indication and pleaded guilty to the charges. He came up for sentence on 4 February 2020. By this time, the second firearms charge had been withdrawn and reports into Mr Wira’s personal circumstances had been filed. These included:
(a)a report by a forensic psychiatric nurse dated 10 July 2019 (psychiatric report);
(b)a provision of advice to the Courts report dated 20 January 2020 (pre-sentence report);
(c)a cultural report prepared pursuant to s 27 of the Sentencing Act 2002 dated 20 January 2020 (cultural report); and
(d)a report from a counselling psychologist dated 30 January 2020 (counselling report).
The Judge constructed the sentence in accordance with the sentence indication earlier given, and accepted, by Mr Wira.[12] The notional end sentence was therefore six years’ imprisonment.[13] The Judge identified several issues in relation to Mr Wira’s background and upbringing arising out of the reports before the Court, and referred to a diagnosis of attention deficit hyperactivity disorder (ADHD).[14]
[12]Sentencing judgment, above n 1, at [10].
[13]At [13].
[14]At [14].
The Judge said the reports gave rise to a glimmer of hope that Mr Wira had some insight into the issues which had led to his offending. That suggested Mr Wira’s prospects of rehabilitation were greater than what they would have been had the reports not been received. To reflect that factor, the Judge reduced the sentence by a further six months.[15]
[15]At [15].
This resulted in an end sentence of five years and six months’ imprisonment which was imposed for the aggravated robbery charge. In addition concurrent sentences of 18 months’ imprisonment for the firearms charge, six months’ imprisonment for the using a document charges, and one month’s imprisonment for the dangerous driving charges were also imposed. Mr Wira was convicted and discharged for the failing to stop charges, and he was disqualified from holding or obtaining a driver’s licence for a total of 18 months for the driving charges.[16]
Mr Wira’s personal circumstances
[16]At [16].
Mr Wira was 23 years old at the time of the offending. He is from Te Arawa on his mother’s side and Ngā Puhi on his father’s side. He was born in Rotorua and is the eighth child in a family of 12 boys and four girls.
Violence and serious abuse characterised Mr Wira’s childhood. He was brought up surrounded by gangs and is currently a gang member. At six years of age, he was accidentally run over and spent approximately seven months in hospital due to the resulting head injury. He still bears the scar of that accident.
At the age of 12, he witnessed a murder by beheading. At the age of 13, he tried to set both his mother and brothers on fire. He was seen by mental health services, but it appears there was no intervention at this time.
Mr Wira recalls Child, Youth and Family Services (as it was then known) becoming involved when he was approximately seven or eight years old. He had multiple placements over the years, and Mr Wira estimates he could have been moved 100 times. This clearly had an impact on his education as he changed schools often. Despite that, Mr Wira is fluent in Te Reo and one of the reports says he is also proficient in French.
In terms of relationships, Mr Wira reported a good relationship with his mother who is currently sick with a terminal illness. It is understood he has a daughter from a prior relationship and another child who lives in France. He has previously worked as a stonemason and in landscaping but has not had any employment in recent times due to his incarceration.
The psychiatric report records Mr Wira was receiving medication for ADHD until he was 18 years of age, but it was unclear why he ceased the medication at that time. He has reported sleeping only two to three hours a night and was taking medication to assist with that. He has also been diagnosed as suffering from severe post-traumatic stress disorder (PTSD), and reports hearing both male and female voices which is symptomatic of that disorder.
Mr Wira also has issues with substance abuse. He has reported problems with alcohol, cannabis and methamphetamine. He reports struggling to give up methamphetamine and his criminal history is consistent with an addiction.
That criminal history comprises of convictions from 2013 onwards. These include convictions for assault, burglary and receiving stolen property, drug-related offences, breach of release conditions and driving offences. He has received sentences of imprisonment for most of these convictions.
Mr Wira has not undertaken any rehabilitation programmes in the past, either because he was serving a short term of imprisonment or his non-compliance and violent behaviour precluded him from undertaking treatment. He has expressed little motivation in the past for attending alcohol and drug programmes in the community.
More recently, however, Mr Wira has received counselling from a psychologist, and he has expressed a real willingness to continue in any programmes that could assist him, particularly those which are tikanga based.
Was the discount for personal circumstances inadequate?
The sole ground of appeal is that the six-month credit for personal circumstances applied by the Judge was inadequate and resulted in a manifestly excessive sentence.
Sentencing courts must take into account an offender’s personal, family, whānau, community and cultural background in imposing a sentence.[17] Courts may receive reports under s 27 of the Sentencing Act which contemplates courts taking into account the ways in which that background may have related to the commission of the offence.[18]
[17]Sentencing Act 2002, s 8(i).
[18]Sentencing Act, s 27(1)(a) and (b).
In Zhang v R, this Court said that social, cultural and economic deprivation may be regarded as having impaired choice and diminished moral culpability.[19] Although those observations were made in the context of sentencing in methamphetamine cases, the principles have broader application to sentencing for all sorts of offending.
[19]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [159].
The sentencing Judge in this case recognised a discount for rehabilitative prospects. We consider he was right to do so as the reports described a significant shift in attitude by Mr Wira as a result of individual counselling sessions with a psychologist. However, we consider there were additional matters in Mr Wira’s background that mitigated his culpability and deserved separate recognition in the sentence imposed.
First, Mr Wira’s direct experience of violence growing up provides an obvious nexus to the offending at hand. Mr Wira described “heaps of abuse” on a daily basis and that “violence was everywhere” on children, adults and family members. He experienced it first-hand and reported witnessing a murder by beheading at the age of 12. The impact of such a gruesome and terrifying event on anyone, let alone a child of 12 years, is difficult to comprehend.
Mr Wira also suffered hardship on account of being moved multiple times throughout his childhood. The lack of a stable and supportive environment would have compromised his ability to make good choices. It also had a detrimental impact on his education which would have limited those choices further.
The impact of these factors is compounded in his case by his relatively young age. In Woodstock v R, this Court considered an appeal against sentence by one of Mr Wira’s co-offenders, Mr Woodstock.[20] Like Mr Wira, Mr Woodstock was 23 years of age at the time of the offending. This Court noted that Mr Woodstock’s young age was relevant to the assessment of Mr Woodstock’s culpability and made the following observations which apply equally to Mr Wira:
[31] We consider there is an obvious nexus between Mr Woodstock’s social and economic deprivation and his offending. Mr Woodstock’s lack of education, lack of employment and lack of family support from a young age do not excuse, but help explain why he has found himself living in “a type of survival mode” and has resorted to engaging in some criminal activity. Although, at 23, Mr Woodstock is no longer a youth, he is still a young adult and as such is less likely to be able to resist peer influence and make sound decisions. We consider these factors are relevant to the assessment of Mr Woodstock’s culpability for his offending.
[32] The importance of taking a different approach to sentencing young adults was discussed in Dr Andrea Păroşanu and Professor Ineke Pruin’s article “Young adults and the criminal justice system”. They point to research showing that certain functions of the brain such as impulse control and resistance to peer influence continue to develop into the mid-twenties and beyond and, “in many ways, young adults are more similar to youths … than to adults”. Countries such as Germany, Austria, Croatia and the Netherlands have extended the application of juvenile law provisions to young offenders up to the age of 23, thereby recognising the need to treat young adults differently from more mature adults and the importance of minimising the exposure of young offenders to the negative influences of imprisonment at an age where decision-making and risk-taking functions are still in development.
(Footnotes omitted.)
[20]Woodstock v R [2020] NZCA 472.
Mr Wira’s mental health must also be taken into account when considering culpability. Mr Wira has been diagnosed with ADHD and severe PTSD. He reports hearing voices and has difficulties sleeping. It is axiomatic that these disorders impair the ability to make sound decisions. They are also features that may make prison more difficult for Mr Wira, and may themselves be deserving of a separate discount on that basis.[21]
[21]Sentencing Act, s 8(h).
These factors do not excuse Mr Wira’s conduct, but they do assist in explaining why Mr Wira acted in the way that he did. To that extent, they mitigate his culpability and we are satisfied that a discount over and above that applied by the sentencing Judge for rehabilitative prospects is justified.
As to quantum, the Crown concedes that a discount of 15 per cent is warranted. This Court applied a 15 per cent discount for Mr Woodstock’s social and economic deprivation and prospects for rehabilitation.[22] Each case turns on its own facts, but when Mr Wira and Mr Woodstock’s backgrounds are compared, we consider a discount of more than 15 per cent is justified in Mr Wira’s case. Based on comparison with other discounts either confirmed or applied in this Court, we consider a discount of at least 20 per cent is warranted in Mr Wira’s case.[23]
[22]Woodstock v R, above n 20, at [35].
[23]See for example Poi v R [2020] NZCA 312 at [32]–[51]; and Carr v R [2020] NZCA 357
at [55]–[71].
It follows that the credit applied by the Judge was inadequate in all the circumstances.
Was the sentence manifestly excessive?
An inadequate discount for personal circumstances does not necessarily mean the end sentence was manifestly excessive. It is the end sentence, and not the components of the sentence nor the methodology by which it was fixed, that is relevant on appeal.
While the Crown concedes a greater discount was available, it says that this is offset by the fact that the Judge declined to apply an uplift for Mr Wira’s previous convictions, and so the end sentence is ultimately within range.
We accept the sentencing Judge could have applied a modest uplift for Mr Wira’s criminal history as some of his prior convictions were relevant to the offending at hand. But we do not consider an uplift would have made a material difference to the end sentence. The discount applied by the Judge for totality purposes took into account the fact that an uplift had not been applied for Mr Wira’s criminal history. It also took into account the decision to impose a concurrent, rather than cumulative, sentence for the second firearms charge which was subsequently withdrawn. In other words, the totality adjustment may have been more had an uplift for prior convictions been applied.
Even if that was not the position, we do not consider that an uplift for prior convictions would have completely offset the discount available for Mr Wira’s personal circumstances. The sentence would still have been manifestly excessive even if an uplift had been applied.
Taking all these factors into consideration, we consider a credit of 20 per cent reflects the mitigation in Mr Wira’s culpability due to his substantially deprived background, personal circumstances, and rehabilitative prospects. That credit also reflects, in the round, any uplift that could have been otherwise applied for prior convictions, and the quantum of the adjustment for totality purposes.
The starting point and uplifts applied by the Judge resulted in a notional sentence of eight years and five months’ imprisonment before any discounts were applied. The nine-month adjustment for totality purposes is next applied, reducing that notional sentence to seven years and eight months’ imprisonment. Then, the 20 per cent discount for personal circumstances is to be applied together with the 20 per cent discount for the guilty plea. That approach accords with the two-step methodology approved in Moses v R and which this Court has held applies when the sentencing Court has erred.[24] The result is an end sentence of four years and seven months’ imprisonment.
[24]Moses v R [2020] NZCA 296 at [46]; and Carr v R, above n 26, at [73].
We are satisfied that this sentence accurately reflects Mr Wira’s culpability for the offending and is the least restrictive sentence in the circumstances.
This sentence shall be substituted for the sentence imposed for the aggravated robbery. As the other sentences of imprisonment imposed in the District Court were concurrent, they remain unaltered, as do the sentences of disqualification from driving.
Result
The application for an extension of time to appeal is granted.
The appeal is allowed.
The 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.
Solicitors:
Crown Law Office, Wellington for Respondent
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