WIRA v R [2021] NZCA 98

WIRA v R [2021] NZCA 98 [29 March 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA698/2020[2021] NZCA 98BETWEEN DAARIAN AKUHATA WIRAAppellantAND THE QUEENRespondentHearing: 23 February 2021Court: Brown, Katz and Edwards JJCounsel: S M H McManus for AppellantM R L Davie for RespondentJudgment: 29 March 2021 at 11.30 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal against sentence is allowed.C The sentence of five years and six months' imprisonment on the charge ofaggravated robbery is set aside. A sentence of four years and sevenmonths' imprisonment is substituted. The other sentences imposed in theDistrict Court are confirmed.____________________________________________________________________REASONS OF THE COURT(Given by Edwards J)[1] Mr Wira pleaded guilty to one charge of aggravated robbery, one charge ofunlawful possession of firearms, five charges of using a document, two charges offailing to stop and two charges of dangerous driving. He was sentenced in theDistrict Court at Christchurch to a total of five years and six months' imprisonment.1He now appeals that sentence on the ground that it is manifestly excessive due to aninadequate discount for his personal circumstances.[2] The appeal is more than six months out of time. Mr Wira has filed an affidavitwhich explains the delay. The Crown accepts there is no prejudice in hearing theappeal and does not oppose an extension of time. We grant an extension of time tobring the appeal accordingly.The offending[3] The charges arise out of events on 28 January 2019. On the previous dayMr Wira's co-offenders had burgled the complainant's residence while it wasunoccupied. The complainant was in his garage cleaning up when Mr Wira and threeco-offenders returned to the house. The complainant tried to summon help froma neighbour. When this was unsuccessful, he pulled out his phone to call the police.Mr Wira snatched the phone from the complainant's hand.[4] The offenders demanded that the complainant go back to his house and, whenhe refused, Mr Wira asked him whether he wanted to see a gun. The offendersproceeded to stomp and kick the complainant repeatedly. He was then dragged backto the lounge of his house.[5] The complainant was instructed to call the police and tell them that the motorvehicle and motorcycle stolen the previous evening had now been returned. They alsodemanded that the complainant write a letter changing ownership of the vehicles toone of their associates.[6] The complainant sustained bruising and swelling to the left-hand side of hisface, cuts to the inside of his lips, swelling and pain to his ribs, and a graze on hiselbow. He has suffered ongoing problems with memory loss, headaches and blackoutsas a result of the assault.1 R v Wira [2020] NZDC 1949 [Sentencing judgment].[7] During a search of the complainant's house, Mr Wira located the keys to thecomplainant's gun safe and uplifted four rifles. This offending gave rise to thefirearms charge.[8] The complainant's watch, toolbox, EFTPOS card and keys to a second motorvehicle were also stolen at this time. Mr Wira subsequently made five separatepurchases using the complainant's EFTPOS card, giving rise to the charges of using adocument.[9] Later that afternoon, at about 4.00 pm, the police saw Mr Wira driving thestolen vehicle. They began a pursuit using a marked patrol car with activated red andblue 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 policeabandoned the pursuit. This offending gave rise to one charge of failing to stop andone charge of dangerous driving.[10] The police recommenced their pursuit that evening when they saw Mr Wiradriving the stolen vehicle. Mr Wira increased his speed to approximately 100 km/hand turned his headlights off. He drove on the wrong side of the road and performeda U-turn while travelling at speed. At times he reached 150 km/h. The policesuccessfully punctured Mr Wira's tyres but he continued to drive until the police wereable to force the vehicle from the road. This offending gave rise to one charge eachof failing to stop and dangerous driving. Mr Wira fled the scene. He declined tocomment when later apprehended by police.The sentencing judgment[11] Judge O'Driscoll gave a sentencing indication to Mr Wira on 23 October2019.2 The Judge took the aggravated robbery charge as the lead charge.3 Thefollowing were identified as aggravating features of the offending: multiple offenders,home invasion, violence used, premeditation, value of property taken, and the impact2 R v Woodstock [2019] NZDC 21007 [Sentencing indication].3 At [34].on the complainant.4 After reviewing comparable cases, the Judge adopted a startingpoint of seven years and six months' imprisonment for the aggravated robbery charge.5[12] That starting point was uplifted by three months for the using a documentcharges and two months for the dangerous driving charges.6[13] 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 searchof the home of a co-offender. The Judge said that a concurrent sentence of 18 monthswas appropriate in relation to both firearms' charges.7[14] The Judge indicated that he would not uplift the sentence for Mr Wira'scriminal history but would apply an uplift of six months to recognise the fact that theoffending occurred while Mr Wira was subject to release conditions.8[15] A 20 per cent discount was indicated for the guilty plea.9 The Judge also saidthat, if accepted, the sentence would be further reduced by nine months to take intoaccount the totality principle.10 In making that indication, the Judge pointed out hehad not increased Mr Wira's sentence to reflect his previous convictions and had notimposed a cumulative sentence on the second firearms charge.[16] The total end sentence indicated was six years' imprisonment.11[17] Mr Wira accepted that indication and pleaded guilty to the charges. He cameup for sentence on 4 February 2020. By this time, the second firearms charge hadbeen withdrawn and reports into Mr Wira's personal circumstances had been filed.These included:4 Sentencing indication, above n 2, at [38].5 At [40]–[44].6 At [49].7 At [51].8 At [54].9 At [56].10 At [63].11 At [67].(a) a report by a forensic psychiatric nurse dated 10 July 2019 (psychiatricreport);(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 2002dated 20 January 2020 (cultural report); and(d) a report from a counselling psychologist dated 30 January 2020(counselling report).[18] The Judge constructed the sentence in accordance with the sentence indicationearlier given, and accepted, by Mr Wira.12 The notional end sentence was thereforesix years' imprisonment.13 The Judge identified several issues in relation to Mr Wira'sbackground and upbringing arising out of the reports before the Court, and referred toa diagnosis of attention deficit hyperactivity disorder (ADHD).14[19] The Judge said the reports gave rise to a glimmer of hope that Mr Wira hadsome insight into the issues which had led to his offending. That suggested Mr Wira'sprospects of rehabilitation were greater than what they would have been had thereports not been received. To reflect that factor, the Judge reduced the sentence by afurther six months.15[20] This resulted in an end sentence of five years and six months' imprisonmentwhich was imposed for the aggravated robbery charge. In addition concurrentsentences of 18 months' imprisonment for the firearms charge, six months'imprisonment for the using a document charges, and one month's imprisonment forthe dangerous driving charges were also imposed. Mr Wira was convicted anddischarged for the failing to stop charges, and he was disqualified from holding orobtaining a driver's licence for a total of 18 months for the driving charges.1612 Sentencing judgment, above n 1, at [10].13 At [13].14 At [14].15 At [15].16 At [16].Mr Wira's personal circumstances[21] Mr Wira was 23 years old at the time of the offending. He is from Te Arawaon his mother's side and Ngā Puhi on his father's side. He was born in Rotorua andis the eighth child in a family of 12 boys and four girls.[22] Violence and serious abuse characterised Mr Wira's childhood. He wasbrought 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 tothe resulting head injury. He still bears the scar of that accident.[23] At the age of 12, he witnessed a murder by beheading. At the age of 13, hetried to set both his mother and brothers on fire. He was seen by mental healthservices, but it appears there was no intervention at this time.[24] 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 hadmultiple placements over the years, and Mr Wira estimates he could have been moved100 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 alsoproficient in French.[25] In terms of relationships, Mr Wira reported a good relationship with his motherwho is currently sick with a terminal illness. It is understood he has a daughter froma prior relationship and another child who lives in France. He has previously workedas a stonemason and in landscaping but has not had any employment in recent timesdue to his incarceration.[26] The psychiatric report records Mr Wira was receiving medication for ADHDuntil he was 18 years of age, but it was unclear why he ceased the medication at thattime. He has reported sleeping only two to three hours a night and was takingmedication to assist with that. He has also been diagnosed as suffering from severepost-traumatic stress disorder (PTSD), and reports hearing both male and femalevoices which is symptomatic of that disorder.[27] Mr Wira also has issues with substance abuse. He has reported problems withalcohol, cannabis and methamphetamine. He reports struggling to give upmethamphetamine and his criminal history is consistent with an addiction.[28] That criminal history comprises of convictions from 2013 onwards. Theseinclude convictions for assault, burglary and receiving stolen property, drug-relatedoffences, breach of release conditions and driving offences. He has received sentencesof imprisonment for most of these convictions.[29] Mr Wira has not undertaken any rehabilitation programmes in the past, eitherbecause he was serving a short term of imprisonment or his non-compliance andviolent behaviour precluded him from undertaking treatment. He has expressed littlemotivation in the past for attending alcohol and drug programmes in the community.[30] More recently, however, Mr Wira has received counselling from apsychologist, and he has expressed a real willingness to continue in any programmesthat could assist him, particularly those which are tikanga based.Was the discount for personal circumstances inadequate?[31] The sole ground of appeal is that the six-month credit for personalcircumstances applied by the Judge was inadequate and resulted in a manifestlyexcessive sentence.[32] Sentencing courts must take into account an offender's personal, family,whānau, community and cultural background in imposing a sentence.17 Courts mayreceive reports under s 27 of the Sentencing Act which contemplates courts taking intoaccount the ways in which that background may have related to the commission of theoffence.18[33] In Zhang v R, this Court said that social, cultural and economic deprivationmay be regarded as having impaired choice and diminished moral culpability.1917 Sentencing Act 2002, s 8(i).18 Sentencing Act, s 27(1)(a) and (b).19 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [159].Although those observations were made in the context of sentencing inmethamphetamine cases, the principles have broader application to sentencing for allsorts of offending.[34] The sentencing Judge in this case recognised a discount for rehabilitativeprospects. We consider he was right to do so as the reports described a significantshift in attitude by Mr Wira as a result of individual counselling sessions with apsychologist. However, we consider there were additional matters in Mr Wira'sbackground that mitigated his culpability and deserved separate recognition in thesentence imposed.[35] First, Mr Wira's direct experience of violence growing up provides an obviousnexus to the offending at hand. Mr Wira described "heaps of abuse" on a daily basisand that "violence was everywhere" on children, adults and family members. Heexperienced it first-hand and reported witnessing a murder by beheading at the age of12. The impact of such a gruesome and terrifying event on anyone, let alone a childof 12 years, is difficult to comprehend.[36] Mr Wira also suffered hardship on account of being moved multiple timesthroughout his childhood. The lack of a stable and supportive environment wouldhave compromised his ability to make good choices. It also had a detrimental impacton his education which would have limited those choices further.[37] The impact of these factors is compounded in his case by his relatively youngage. In Woodstock v R, this Court considered an appeal against sentence by one ofMr Wira's co-offenders, Mr Woodstock.20 Like Mr Wira, Mr Woodstock was 23 yearsof age at the time of the offending. This Court noted that Mr Woodstock's young agewas relevant to the assessment of Mr Woodstock's culpability and made the followingobservations which apply equally to Mr Wira:[31] We consider there is an obvious nexus between Mr Woodstock's socialand economic deprivation and his offending. Mr Woodstock's lack ofeducation, lack of employment and lack of family support from a young agedo not excuse, but help explain why he has found himself living in "a type ofsurvival mode" and has resorted to engaging in some criminal activity.20 Woodstock v R [2020] NZCA 472.Although, at 23, Mr Woodstock is no longer a youth, he is still a young adultand as such is less likely to be able to resist peer influence and make sounddecisions. We consider these factors are relevant to the assessment of MrWoodstock's culpability for his offending.[32] The importance of taking a different approach to sentencing youngadults was discussed in Dr Andrea Păroşanu and Professor Ineke Pruin'sarticle "Young adults and the criminal justice system". They point to researchshowing that certain functions of the brain such as impulse control andresistance to peer influence continue to develop into the mid-twenties andbeyond and, "in many ways, young adults are more similar to youths thanto adults". Countries such as Germany, Austria, Croatia and the Netherlandshave extended the application of juvenile law provisions to young offendersup to the age of 23, thereby recognising the need to treat young adultsdifferently from more mature adults and the importance of minimising theexposure of young offenders to the negative influences of imprisonment at anage where decision-making and risk-taking functions are still in development.(Footnotes omitted.)[38] Mr Wira's mental health must also be taken into account when consideringculpability. Mr Wira has been diagnosed with ADHD and severe PTSD. He reportshearing voices and has difficulties sleeping. It is axiomatic that these disorders impairthe ability to make sound decisions. They are also features that may make prison moredifficult for Mr Wira, and may themselves be deserving of a separate discount on thatbasis.21[39] These factors do not excuse Mr Wira's conduct, but they do assist in explainingwhy Mr Wira acted in the way that he did. To that extent, they mitigate his culpabilityand we are satisfied that a discount over and above that applied by the sentencingJudge for rehabilitative prospects is justified.[40] 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 economicdeprivation and prospects for rehabilitation.22 Each case turns on its own facts, butwhen Mr Wira and Mr Woodstock's backgrounds are compared, we consider adiscount of more than 15 per cent is justified in Mr Wira's case. Based on comparisonwith other discounts either confirmed or applied in this Court, we consider a discountof at least 20 per cent is warranted in Mr Wira's case.2321 Sentencing Act, s 8(h).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[41] It follows that the credit applied by the Judge was inadequate in all thecircumstances.Was the sentence manifestly excessive?[42] An inadequate discount for personal circumstances does not necessarily meanthe end sentence was manifestly excessive. It is the end sentence, and not thecomponents of the sentence nor the methodology by which it was fixed, that is relevanton appeal.[43] While the Crown concedes a greater discount was available, it says that this isoffset by the fact that the Judge declined to apply an uplift for Mr Wira's previousconvictions, and so the end sentence is ultimately within range.[44] We accept the sentencing Judge could have applied a modest uplift forMr Wira's criminal history as some of his prior convictions were relevant to theoffending at hand. But we do not consider an uplift would have made a materialdifference to the end sentence. The discount applied by the Judge for totality purposestook into account the fact that an uplift had not been applied for Mr Wira's criminalhistory. It also took into account the decision to impose a concurrent, rather thancumulative, sentence for the second firearms charge which was subsequentlywithdrawn. In other words, the totality adjustment may have been more had an upliftfor prior convictions been applied.[45] Even if that was not the position, we do not consider that an uplift for priorconvictions would have completely offset the discount available for Mr Wira'spersonal circumstances. The sentence would still have been manifestly excessive evenif an uplift had been applied.[46] Taking all these factors into consideration, we consider a credit of 20 per centreflects the mitigation in Mr Wira's culpability due to his substantially deprivedbackground, personal circumstances, and rehabilitative prospects. That credit alsoat [55]–[71].reflects, in the round, any uplift that could have been otherwise applied for priorconvictions, and the quantum of the adjustment for totality purposes.[47] The starting point and uplifts applied by the Judge resulted in a notionalsentence of eight years and five months' imprisonment before any discounts wereapplied. The nine-month adjustment for totality purposes is next applied, reducingthat notional sentence to seven years and eight months' imprisonment. Then, the20 per cent discount for personal circumstances is to be applied together with the20 per cent discount for the guilty plea. That approach accords with the two-stepmethodology approved in Moses v R and which this Court has held applies when thesentencing Court has erred.24 The result is an end sentence of four years and sevenmonths' imprisonment.[48] We are satisfied that this sentence accurately reflects Mr Wira's culpability forthe offending and is the least restrictive sentence in the circumstances.[49] This sentence shall be substituted for the sentence imposed for the aggravatedrobbery. As the other sentences of imprisonment imposed in the District Court wereconcurrent, they remain unaltered, as do the sentences of disqualification from driving.Result[50] The application for an extension of time to appeal is granted.[51] The appeal is allowed.24 Moses v R [2020] NZCA 296 at [46]; and Carr v R, above n 26, at [73].[52] The sentence of five years and six months' imprisonment on the charge of aggravatedrobbery 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