RAWIRI WERETA v NEW ZEALAND POLICE [2023] NZHC 629

RAWIRI WERETA v NEW ZEALAND POLICE [2023] NZHC 629 [27 March 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-485[2023] NZHC 629BETWEEN RAWIRI WERETAAppellantAND NEW ZEALAND POLICERespondentHearing: 20 March 2023Appearances: M R Douglas for AppellantH R Smith for the RespondentJudgment: 27 March 2023JUDGMENT OF WYLIE J[Appeal against sentence]This judgment was delivered by Justice WylieOn 27 March 2023 at 3.00 pmRegistrar/Deputy RegistrarDate:Solicitors/counsel:M R Douglas, TaurangaMeredith Connell, Crown Solicitor, AucklandIntroduction[1] After entering guilty pleas to two charges—one of assault with intent to injureand the other of injuring with intent to injure—the appellant, Rawiri Wereta, wassentenced by Judge Bonnar KC in the District Court at North Shore to two years andthree months' imprisonment.1[2] Mr Wereta appeals his sentence, arguing that it is manifestly excessive. Hesays that:(a) the starting point of two years and six months' imprisonment adoptedby the Judge for the lead charge of injuring with intent to injure was toohigh; and(b) a three month reduction for totality allowed by the Judge wasinsufficient, given that the sentence is to be served as a cumulativesentence.[3] The respondent opposes the appeal. It is submitted on behalf of the police thatthe starting point adopted was within the available range and that the reduction fortotality made by the Judge was sufficient. As a result, it is said that the end sentencewas 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 ofCorrections Officer Duffield. As everyone knows, you are a sentencedprisoner at Auckland Prison. Mr Duffield is a Corrections Officer. On theafternoon of 2 November, Mr Duffield was a member of a team escorting youback to your cell. You were searched by a Corrections Officer. Once thatsearch was complete, without provocation or warning, you struck out withyour fists and punched Mr Duffield in the face. You then stood in the cornerof the landing and were restrained by Corrections staff. The summary tellsme Mr Duffield sustained a neck sprain, jaw sprain and open wounds on hislip. 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 themorning of 5 May 2022 you were being unlocked from your cell by MrDansey and other Corrections Officers. You stepped out of your cell, turnedquickly towards Mr Dansey and punched him twice in the face with extremeforce. You were then restrained by other officers but resisted. Mr Danseysustained a broken jaw which required surgery. He also sustained aconcussion which has resulted in ongoing issues for him. Again, you declinedto comment.[4] I have read victim impact statements of both Mr Dansey and MrDuffield. Mr Dansey refers to his physical injuries, the broken jaw, and theconsequences for him of that. His sleep was affected. He has ongoing issuesbecause of the concussion, involving regular headaches and migraines. At thedate he wrote his victim impact statement, he had been unable to return towork.[5] Mr Duffield refers to his injuries and indicates that he had to live withthat, and that he could only eat soft foods for about a week following yourassault on him. He had to work reduced hours for a month. He notes that hehas been psychologically affected by your assault and that his senses at workare heightened; he feels more alert to his surroundings. He describes that asbeing exhausting.The sentencing decision[5] The Judge treated the offence of injuring with intent to injure as the leadoffence. It was common ground that the Court of Appeal's decision in Nuku v R wasrelevant in setting the starting point for this offending.2 It was also common groundthat 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 CorrectionsOfficer.[6] The Judge considered that the charge of injuring with intent to injure felltowards the top end of band two discussed in Nuku and he adopted a starting point oftwo years and six months' imprisonment for the offence. He considered that theappropriate starting point would have been 18 months' imprisonment for the assaultwith intent to injure charge but, considering totality, adopted instead a global starting2 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.point of three years and four months' imprisonment. The Judge declined to uplift thisglobal starting point to recognise Mr Wereta's criminal history. Rather, he reduced theglobal starting point by 25 per cent to acknowledge Mr Wereta's guilty pleas. A furtheradjustment for the fact that the sentence was going to be served cumulatively resultedin an end sentence of two years and three months' imprisonment, to be servedcumulatively on Mr Wereta's existing sentences.The appeal[7] Mr Wereta's appeal is brought pursuant to s 244 of the Criminal Procedure Act2011. The appeal is governed by s 250 of that Act. The Court must allow the appealif it is satisfied that there was an error in the sentence imposed and that a differentsentence should have been imposed. In any other case, the Court must dismiss theappeal.3[8] For Mr Wereta to succeed on the appeal, he must demonstrate that there was amaterial error that has resulted in a manifestly excessive sentence.4 The Court doesnot start afresh nor simply substitute its own opinion for that of the original sentencer.5Whether or not a sentence is manifestly excessive falls to be determined having regardto 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 bythe police before the Judge—R v Hamilton,6 and R v Ratima.7 He argued thatMr Wereta's offending was less serious than the offending in either case and that alower starting point should have been adopted. He pointed out that in Hamilton thestarting point adopted was two years six months. This offending involved a prolongedattack against a vulnerable victim who was outnumbered by his attackers. The victimsuffered significant injuries. In Ratima the victim was also vulnerable. Mr Douglasargued that, using these cases as comparators, the starting point for Mr Wereta'soffending 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 andto the decision of the Court of Appeal in Ngamoki v R.8 He argued that the discountfor totality should have been six months, to ensure that the total sentence being servedby 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 sixmonths adopted by the Judge was well within the available range. He submitted thatthe Judge correctly identified the relevant aggravating factors and that they placed theoffending at the top of band two discussed in Nuku. He accepted that the injuriessuffered by the victim in Hamilton were more serious than those suffered by MrWereta's victim, but argued that Ratima involved broadly similar offending. He alsoobserved that the victims in both Hamilton and Ratima were fellow prisoners, whereasMr Wereta's offending was against Corrections Officers. He put it to me that this wasan aggravating factor. He also referred to the decision of Filifili v Police,9 where astarting point of two years' imprisonment imposed by the District Court for injuringwith 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 wasappropriate, 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 tomanage the prison effectively. He observed that the Judge refrained from uplifting thesentence notwithstanding Mr Wereta's criminal history. He concluded by submittingthat the end sentence imposed was not manifestly excessive.Analysis[13] The lead offence for sentencing purposes was the offence of injuring withintent to injure. It carries a maximum penalty of five years' imprisonment,10 asopposed to the offence of assault with intent to injure which carries a maximumsentence of three years' imprisonment.118 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 theCourt of Appeal in Nuku v R.12 The Court there identified three bands for suchoffending. Which band any particular offending fits into depends upon the number ofaggravating features that are present. Those features contribute to the seriousness ofthe conduct and to the criminality involved, although there is always a need for thesentencing Judge to stand back and evaluate the seriousness of each particular factorand combination of factors present in the particular case in order to determine theappropriate sentencing band and the starting point. The Court adopted the variousaggravating features discussed in R v Taueki.13 Those features include the extent ofthe violence inflicted, the degree of premeditation, the seriousness of the injuriessuffered, 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 thevictim, home invasion, gang warfare, offending against a law enforcement officer orother 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 brokenjaw; and(c) the attack was to a Corrections Officer, who was carrying out hisofficial duties.14[16] The attack was also unprovoked.[17] Pursuant to the guidelines set out in Nuku, offending which involves three orfewer of the Taueki aggravating factors falls into band two. For band two offendingthe 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 myjudgment, the Judge did not err when he placed Mr Wereta's injuring with intent toinjure offending in band two discussed in Nuku. Nor did he err in adopting a startingpoint sentence of two years and six months for this offending.[19] The stating point adopted was consistent with like starting points adopted insimilar cases. I refer in particular to:(a) Gillies v R.15 Mr Gillies punched a Corrections Officer. The blowknocked the Officer out. Mr Gillies then punched the Officer again, atwhich point the Officer fell to the ground. The Officer sufferedswelling to his forehead and jaw and bleeding from his right eye. Inaddition to the immediate effects of the attack, the Officer also sufferedongoing physical and psychological effects. Mr Gillies was chargedwith injuring with to injure and assault. The sentencing Judge adopteda starting point of three years for the injuring with intent to injureoffending. The Court of Appeal agreed with the starting point notingas follows:[22] The Judge then, as both Taueki and Nuku require,looked at Mr Gillies' offending in the round, rather thanundertaking a mechanistic application of the culpability factors.On that basis he concluded, as do we, that a three year startingpoint was appropriate. In our view, this is better characterisedas Band Two Taueki offending, but at the very top of the band.This was an attack to the head, it resulted in the victim'sunconsciousness and had long-term consequences, and it wasan unprovoked attack on a prison officer carrying out his duties.(b) R v Wright,16 where the Court of Appeal approved a three year startingpoint for an offender who attacked a Police Officer. The attackinvolved a high level of violence and it lasted for several minutes. TheOfficer suffered extensive cuts and bruises, some of which had to bestitched. The Officer also suffered from delayed concussion. Theoffender was charged with injuring with intent to injure. Thesentencing 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 culpabilitywere, the degree of violence involved, the attack to the head, theresulting harm and that it was an attack on a Police Officer.17 The Courtagreed that a starting point of three years was within range.18[20] Given the aggravating features involved and the unprovoked nature of theattack, 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 ofimprisonment for 2 or more offences, the individual sentences mustreflect the seriousness of each offence.(2) If cumulative sentences of imprisonment are imposed, whetherindividually or in combination with concurrent sentences, they mustnot result in a total period of imprisonment wholly out of proportionto the gravity of the overall offending.(3) If, because of the need to ensure that the total term of cumulativesentences is not disproportionately long, the imposition of cumulativesentences would result in a series of short sentences that individuallyfail to reflect the seriousness of each offence, then longer concurrentsentences, 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 maximumpenalty provided for that offence, receive the penalty that isappropriate for the totality of the offending; and(b) each of the lesser offences must receive the penaltyappropriate to that offence.[23] Here, it is not altogether clear how the Judge approached totality. As noted, heconsidered that the total initial starting points for both offences could take the total17 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 andconcluded that the appropriate starting point for both offences was three years and fourmonths' imprisonment—or 40 months. In effect, he allowed an eight month deductionfor totality. He also declined to apply an uplift to take account of Mr Wereta'sappalling criminal history. (The Judge noted that Mr Wereta had been sentenced toprison 44 times in 13 separate sentencings, noting that Mr Wereta's last nine sentencesof imprisonment had involved cumulative sentences). The Judge noted that he had toguard against double counting and that therefore he was not going to uplift the startingpoint for Mr Wereta's criminal history. He allowed a discount for the guilty pleas andthen made what he described as a further nominal adjustment—to take account of thefact that the sentence he was intending to impose was going to be cumulative onexisting sentences already being served by Mr Wereta. He deducted a further threemonths 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 wouldnormally 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, violentoffender. 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 theCourt was considering whether an additional 23 months' imprisonment for violentoffences committed whilst in prison was excessive. The Court agreed with the HighCourt and found that the addition of a further 23 months' imprisonment for twooffences committed in prison was not disproportionate. The Court noted:20This is not a case where [the offender's] release date or potential release dateis extended so far into the future by the additional sentence that the penaltycould be seen to be disproportionate to the gravity of [his] serious, violentoffending".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 lengthyterm of imprisonment. He was sentenced to six years' imprisonment on a charge ofaggravated robbery on 1 February 2013. Concurrent sentences of two years'imprisonment were imposed on charges of possession of an offensive weapon, assaultwith intent to rob and unlawfully taking a motor vehicle. Cumulative sentences of twoyears' imprisonment for each of three charges of assault with intent to injure were alsoimposed. Mr Wereta has subsequently been convicted of further violent offending,which occurred while he was serving his sentence. He was sentenced to furthercumulative sentences of imprisonment on all but two of his convictions. The statutoryend date of the sentences Mr Wereta is currently serving is 31 January 2034. Counselagree that taking into account the cumulative sentences involved, the total sentencebeing served by Mr Wereta is 24 years and four months' imprisonment. They furtheradvise that the earlier statutory end date of 31 January 2034 is likely to be explainedby 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 modestincrease to this already substantial term of imprisonment.[27] I have also taken into account that Mr Wereta's offending was againstCorrections Officers whilst in prison. I note the following:(a) the decision of the Court of Appeal in R v Connelly.21 There, the Courtendorsed the decision in R v Ali22 and held that if a prisoner serving asentence for previous violent offending commits a further violentoffence while in prison, the application of the totality principle can onlybe minimal.23 The Court stated:24Re-offending, particularly violent re-offending, while in prison,must have significant consequences for the offender,notwithstanding that the outcome is a very lengthy period ofimprisonment.and21 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 Courtnoted as follows:25Offending in the prison environment, particularly where thatoffending goes to the maintenance of the discipline needed toeffectively manage a penal institution, demands a stern response.That would be seriously undermined if sentences for suchoffending required adjustment to reflect the fact that the offenderis already serving a sentence of imprisonment.[28] In my judgment, an additional two years and three months' imprisonment isnot disproportionate to the gravity of Mr Wereta's overall offending. He committedtwo violent and unprovoked attacks against Corrections Officers causing significantinjuries 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 J25 Trysellar v R [2012] NZCA 353 at [18].