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Waru v R [2019] NZCA 347 (31 July 2019)

Last Updated: 6 August 2019

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA
CA513/2018
[2019] NZCA 347



BETWEEN

PATRICK FREDRICK ABRAHAM WARU
Appellant


AND

THE QUEEN
Respondent

Hearing:

25 June 2019 (further material received 3 July 2019)

Court:

Wild, Thomas and Muir JJ

Counsel:

M I Koya for Appellant
K A Lummis for Respondent

Judgment:

31 July 2019 at 4.00 pm


JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The appeal is allowed.

  1. The sentence of 7 years and 10 months imprisonment under appeal is quashed. A sentence of 6 years and 10 months imprisonment is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

Introduction

[1] Mr Waru appeals a sentence of 7 years and 10 months imprisonment imposed by Wylie J in the Auckland High Court.[1] Leave is required because the appeal was filed over a year out of time.
[2] Ultimately, this appeal was advanced on disparity grounds. When compared with the starting point of 5 years imprisonment adopted by Lang J when sentencing each of Mr Waru’s three co-offenders,[2] Mr Koya contended the starting point of 10½ years adopted by Wylie J was too high, and the resulting sentence manifestly unjust.

Leave

[3] The Crown opposes leave to appeal because of the long delay. We agree with Crown counsel that Mr Waru’s explanation of this delay is unconvincing. However, on the ground that this appeal has merit, we grant leave.

Facts

[4] Mr Waru and his three co-offenders Messrs Nuku, Briggs and Pani-Marsden, were inmates in Paremoremo Prison. On 19 October 2016 the four of them were having “landing time” out of their cells. Mr Waru asked a prison officer for a mop and bucket to clean his cell. When the officer returned with these and opened the grille, Mr Nuku forced the grille open, pushed the officer to the ground and jumped on top of him, punching him. Mr Waru then joined in the punching. Mr Waru was armed with sharpened pieces of metal, commonly called “shanks”, one tied to each of his hands with bed sheets. The first officer sustained three puncture wounds to the back of his neck and two wounds to his hands. When a second officer came to the assistance of the first, Mr Waru punched him and attempted to stab him, inflicting a puncture wound above his right ear.
[5] Meanwhile Mr Briggs was swinging off the grille door, stomping on the heads of the two prison officers. A third officer then arrived and tried to grab Mr Briggs who kicked him in the face breaking the third officer’s nose. A fourth, fifth and finally a sixth officer arrived to assist. By this time there was a pile of bodies on the ground, including Mr Waru. Mr Waru’s co-offenders were seen kicking and punching these prison officers, including in the head.
[6] Mr Nuku then dragged the second officer away from the group. When that officer lost his footing and fell, Mr Nuku stomped repeatedly on his head causing the second officer to lose consciousness. The fourth officer went to help and Mr Nuku turned on him, punching him in the head and body. Mr Waru then joined this fight, stabbing the fourth officer several times in his head using the shanks tied to his hands. This officer received puncture wounds to the side of his head and was knocked to the ground. At this point the second officer regained consciousness and tried to get up. Mr Briggs punched him in the head again, knocking him out for a second time and inflicting a cut to his left eyelid.
[7] Shortly after this three of the six prison officers regained control and pushed the four inmates back behind the grille. Mr Waru was ordered to drop his weapons, which he did, unwrapping the pieces of bed sheet that were tying the shanks to his hands. Mr Waru then told the first officer he had been lucky because he had wanted to kill him. All but one of the six prison officers received significant injuries, ranging from puncture wounds to cuts, swollen eyes and bruising.

The charges and pleas

[8] As a result of their involvement in this attack, Mr Waru and his three co‑offenders each faced 13 charges under the Crimes Act 1961. The most serious were three charges of wounding with intent to cause grievous bodily harm (maximum sentence 14 years imprisonment) and two charges of injuring with intent to cause grievous bodily harm (a maximum of 10 years imprisonment). Mr Waru was named as principal in the two wounding charges.
[9] Mr Waru first appeared in the District Court on 7 November 2016. By May 2017 he had pleaded guilty to all the charges. Unlike his three co‑offenders, Mr Waru did not seek a sentence indication. He was sentenced by Wylie J in the High Court on 9 June 2017. After giving a separate sentence indication to each of the three co‑offenders, Lang J ultimately sentenced them together on 3 November 2017.

The sentence under appeal

[10] Wylie J adopted counsel’s suggestion that he take, as the lead offences, the two wounding charges in which Mr Waru was the principal offender.[3] The Judge identified seven aggravating factors of the offending: premeditation, use of weapons; the extent of the violence — serious though not extreme; attacking the victims’ heads; offending involving four attackers, initially on two officers; the fact that the victims were prison officers acting in the course of their duties; and the extent of the harm — insignificant injuries to five of the officers. The Judge placed the offending firmly in band 2 of R v Taueki[4] with a starting point in the range 5 to 10 years imprisonment.[5]
[11] The Judge then referred to several cases involving attacks in a prison. He recorded that all but one of those involved Taueki band 2 offending, the exception being at the bottom end of band 3. He noted “The starting points in these various cases have ranged from eight to 10 years and six months’ imprisonment”.[6]
[12] The Judge adopted 8½ years imprisonment as the appropriate starting point for the two lead offences.[7] He uplifted that by 2 years to take account of the rest of the offending which he considered “serious in its own right”.[8] That took the Judge to a starting point of 10½ years imprisonment for all the offending. He uplifted that by 6 months to take account of Mr Waru’s previous criminal record, which included using violence in prison.[9] The Judge noted that the attack on the six prison officers had occurred while Mr Waru was serving a sentence for offending committed in the course of the Spring Hill Prison riots in June 2013.[10] While acknowledging that re-offending in prison required a stern response, the Judge considered no additional uplift was necessary. That was because he had already treated the fact that the offending was against prison officers as an aggravating factor, one not to be double counted.
[13] Next, the Judge allowed a discount of 6 months to recognise rehabilitative efforts Mr Waru was making,[11] and a 25 per cent discount for timely guilty pleas.[12] The Judge rounded the resulting sentence down to 7 years and 10 months imprisonment.[13]
[14] Finally, the Judge considered the totality of the situation. He said:

Totality

[56] Mr Waru, you are already serving a sentence of imprisonment which does not end until 2021. Adding the sentence I propose on a cumulative basis would mean that your term of imprisonment would not end until approximately 2028/2029. Cumulative sentences must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.[14]

[57] The Court of Appeal has however stated in previous cases that offending in the prison environment demands a stern response, and that this would be undermined if the sentence for such offending is adjusted to reflect the fact that the offender is already serving a sentence of imprisonment.[15] 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.[16]

[58] Given this, I do not consider that your sentence requires a further discount to reflect your overall situation.

Opposing submissions

For Mr Waru

[15] As we have said, Mr Koya’s main point was disparity. He submitted the starting point of 10½ years imprisonment adopted by Wylie J for all Mr Waru’s offending was far too high when compared with the 5 year overall starting point adopted by Lang J for each of the three co‑offenders.
[16] Mr Koya contended the four men were “in it together”. He suggested one of the other three must have tied the shanks to Mr Waru’s hands and pointed out that it was Mr Briggs who started the physical attack.[17] Mr Koya accepted, however, that Mr Waru had enabled the attack by asking for the mop and bucket which led to the grille being opened.

Crown response

[17] Ms Lummis submitted the sentence under appeal was not manifestly excessive. She emphasised that sentencing had proceeded with counsel for the Crown and for Mr Waru agreeing that the Judge should take, as the lead offences, the two wounding charges in respect of which Mr Waru was the principal offender, and to reflect Mr Waru’s culpability on the other offences. There was agreement also that Mr Waru’s offending was appropriately placed in band 2 in Taueki.[18]
[18] Next, Ms Lummis referred to the comments of the Supreme Court in Hessell v R[19] and of this Court in R v K (CA345/02)[20] emphasising that consistency and parity are best achieved by sentencing each offender appropriately for his or her role in the overall offending. She emphasised this Court’s previous observations that a disparity argument cannot be built on an unjustifiable sentence and cautioned against removing a disparity between co‑‑offenders at the expense of creating a further disparity between the sentence ultimately imposed upon the appellant and those imposed on other offenders in comparable circumstances.[21]
[19] Ms Lummis then listed the following points as justifying the significantly heavier sentence imposed on Mr Waru:
[20] Ms Lummis detailed two of the comparable sentencing cases the Crown had referred to Wylie J at sentencing. The first was R v Wereta.[23] This involved a gang‑related attack by four prisoners on the inmate of a cell in Paremoremo prison, and subsequently upon two other prisoners. Mr Wereta was the ringleader, and was carrying a shank. He inflicted a deep cut requiring 16 stitches to the forearm of the first victim and numerous stab wounds to the neck and torso of the second victim, who was left with a life-threatening injury to his neck and a punctured lung. Andrews J adopted a starting point of between 9½ years imprisonment on the most serious charge, of wounding with intent to cause grievous bodily harm to the second victim.[24] She then increased that to 10½ years imprisonment to take account of the offending against the other two victims.[25] After a downward adjustment for totality (Mr Wereta was already serving a sentence of 11½ years) and a discount for guilty pleas, the final sentence was 7 years 9 months imprisonment. Andrews J noted that one of his co‑offenders, who had acted as a look out only, had been sentenced to 12 months imprisonment.[26] A different Judge subsequently sentenced the other two attackers to 2 years and 5 months imprisonment (the starting point was 3 years), and 15½ months imprisonment (with a starting point of 20 months) respectively.[27]
[21] The second case was Lake v R.[28] Mr Lake appealed a sentence of 6½ years imprisonment for a vicious assault on a fellow inmate in Paremoremo Prison. The assault included breaking the inmate’s arm, attempting unsuccessfully to break his other arm and his legs, punching him in the head while he was lying immobile on the ground and finally jumping at least half a metre in the air and landing on the victim’s head three times, again while he was lying immobile. Mr Lake was not the instigator of the attack: he had been involved in it by another prisoner. Again, that attack was a gang-related one. In sentencing Mr Lake, Woolford J had adopted a starting point of 8½ years imprisonment. He had uplifted that by 6 months to reflect the fact that the offending had occurred in prison. This Court was in “no doubt” that the Judge’s starting point was available, and well within range.[29] It also regarded the 6 month uplift to reflect offending in prison as “appropriate and not excessive”.[30] The Court commented that “Good order and discipline within the difficult prison environment is essential. Activities that threaten that ... will normally deserve marking out, whether it be by a higher placement on the available range or by uplift.”[31]

Consideration

Starting point

[22] We start our consideration of the Judge’s sentencing starting point by mentioning three other cases. All three pre-date Wereta and Lake.
[23] First in time is R v Connelly.[32] On a Solicitor’s appeal, this Court endorsed a starting point of 8 years imprisonment for Mr Connelly’s part in three successive waves of attack by four prisoners in different combinations on another prisoner. Mr Connelly was physically involved only in the first assault. Unlike the two successive assaults, that resulted in only moderate injuries. Of the end sentence under appeal this Court commented:

[19] The sentence for the charge of wounding with intent to cause grievous bodily harm of seven years four months’ imprisonment took into account the respondent’s role and his culpability in the overall offending, as assessed by the Judge. The sentence was perhaps lenient, but reflected that the respondent’s culpability was less than that of his co-offenders. ...

[24] Next in time is Kepu v R.[33] Mr Kepu had been segregated from other prisoners before being transferred to Paremoremo. The reason for his segregation had not been explained to him. He thought one particular prison officer was responsible. He punched this prison officer forcefully causing him to fall backwards and strike his head on the concrete floor. The prison officer subsequently died. The sentencing Judge adopted a starting point of 7½ years imprisonment but uplifted this by 2 years to reflect the fact that Mr Kepu was imprisoned for an assault on a police officer. This resulted in what this Court described as “an end starting point of 9½ years imprisonment”.[34] Of Mr Kepu’s attack the Court said: “His was a calculated attack on a prison officer in respect of whom he had been harbouring a grudge for several hours.”[35] The Court had “no difficulty in upholding the Judge’s ultimate starting point of 7 years 6 months imprisonment”,[36] nor the 2 year uplift to reflect the earlier assault on the police officer.[37] The appeal was dismissed.
[25] Last in time is Tryselaar v R, one of the cases considered by Wylie J.[38] In the course of attempting to escape from Waikeria Prison, Mr Tryselaar and another prisoner assaulted two prison guards. One was a female. They hit both the guards repeatedly with metal brackets they had torn off the sink benches in their cells. They then kicked in the door of a toilet in which the female guard had locked herself and took her hostage for about 15 minutes. Both guards suffered large lacerations to their heads, serious bruising and, in one case, severe concussion. The Court upheld the end sentence of 8 years imprisonment, arrived at by applying a one third discount for guilty pleas to a starting point of 12 years imprisonment.
[26] We have not overlooked this Court’s decision in Karetu v R.[39] Although Karetu involved an appeal against sentences imposed on charges of injuring another prison inmate and, subsequently, wounding a prison officer, Mr Karetu was also sentenced for rape. The sentencing starting point of 12 years imprisonment was on the rape charge. So, apart from the comments we refer to below at [31], Karetu is not helpful.
[27] Wylie J’s sentencing approach was that suggested to him by both counsel. It was also the approach adopted by Andrews J in R v Wereta.[40] Given s 84 of the Sentencing Act 2002, it may have been more appropriate to fix a starting point reflecting the overall culpability of Mr Waru’s offending. That was Lang J’s approach in sentencing the three co-offenders. But, whichever approach is taken, we cannot view a starting point of 10½ years imprisonment as manifestly excessive. It happens to be the same as that selected by Andrews J in Wereta. Although the injuries inflicted in Wereta were more serious, the attack by Mr Waru and his co-offenders had the aggravating feature that it was upon prison officers. Further, in Wereta, the sentencing Judge had uplifted the sentence by 6 months to reflect that the offending was in prison. For the reasons explained in [12] above, Wylie J did not do that in this case.
[28] The Judge’s 10½ years starting point is also appropriately lower than the 12 years adopted in Tryselaar, where the attack on the two prison officers was arguably more serious, in terms of the weapons and violence used, the hostage taking, and the injuries inflicted.
[29] This was a planned, targeted, vicious attack on, ultimately, six prison officers. It certainly warranted “marking out” and Wylie J did that in selecting a higher starting point. That accords with the approach mandated by this Court in Lake.[41] And the starting point the Judge selected is in line with the cases we have mentioned, Wereta and Tryselaar being the most comparable.

Totality

[30] The question then is whether the end sentence of 7 years and 10 months imprisonment was “wholly out of proportion to the gravity of the overall offending”, demanding a totality reduction.[42] We have set out in [14] above the basis on which Wylie J declined to reduce the sentence to reflect Mr Waru’s overall situation.
[31] As the Judge said, where an appellant has re-offended while in prison, the message from this Court has been clear and consistent.[43] Such offending demands a stern response particularly where, as in this case, the offending goes to the maintenance of discipline needed to manage a prison effectively. As this Court commented in Kepu v R:

[19] Where actual violence occurs, prison officers must be entitled to the fullest measure of protection from the courts. Issues of deterrence and denunciation are then to the forefront of the principles that the courts must apply when offenders are sentenced. The sentences to be imposed in such cases must demonstrate to other prisoners that the courts will not tolerate unprovoked attacks on prison officers.

[32] The required stern response would be seriously undermined if sentences for re‑offending in prison required downward adjustment to reflect the fact that the offender is already serving a sentence of imprisonment. That message is all the more pertinent where, as in this case, the sentence the offender is serving is for previous violent offending in prison.
[33] In giving Mr Nuku a sentence indication, Lang J commented in much the same terms as had Wylie J:[44]

[18] Ordinarily, because the sentence would necessarily be cumulative, I would need to have regard to totality principles. Care must be taken in this context, because the Court of Appeal has made it plain that significant discounts to reflect totality principles may be counterproductive where offending occurs within a prison environment. In other words, if prisoners know that their sentence is likely to be reduced significantly if they offend whilst in prison, they have little incentive not to offend.

(Footnote omitted.)

Lang J made a similar remark when giving a sentence indication to Mr Briggs about a month later.[45]

[34] We are unable to fault Wylie J’s approach which accords with the view this Court has consistently taken in cases involving reoffending in prison, particularly violent attacks on other inmates or prison officers.

Disparity with co-offenders

[35] In giving the first of his sentence indications, to Mr Pani-Marsden on 25 July 2017, Lang J referred to the sentence Wylie J had imposed on Mr Waru, observing:[46]

That sentence informs, to a large degree, the indication I am required to give today.

[36] Later, when referring to Mr Waru’s offending, Lang J said this:

[16] I acknowledge that Mr Waru’s offending was more serious than that of Mr Pani-Marsden. He was the instigator, he led the attack and he was armed with two implements. As I have already recorded, Wylie J selected an overall starting point in Mr Waru’s case of ten years six months imprisonment. In Mr Pani-Marsden’s case, I consider that an appropriate starting point is one of seven years imprisonment. This is approximately two-thirds of the overall starting point selected in respect of Mr Waru.

[37] In giving that first indication, Lang J was under the erroneous impression that Mr Pani-Marsden “also had a handmade implement in his hand”.[47] After that misapprehension was corrected by the Crown, the Judge gave a second indication to Mr Pani-Marsden in which he said:[48]

... I consider the absence of a weapon is a factor that significantly lessens the seriousness of the offending. I therefore take a starting point of five years imprisonment to reflect Mr Pani-Marsden’s overall culpability on all charges.

[38] Thus, Lang J considered attacking with a weapon warranted increasing the sentencing starting point for Mr Pani-Marsden by 2 years or, more strictly, the absence of such a weapon justified reducing it by 2 years from the 7 year starting point earlier indicated. It is, however, important to note that Lang J accepted that the other three attackers all knew that Mr Waru was armed. For example, in giving Mr Nuku a sentence indication Lang J said:[49]

I consider all of those involved in this attack would have known that Mr Waru was armed, and that they would therefore have anticipated that the prison officers were likely to be injured.

[39] Wylie and Lang JJ were entirely justified in treating Mr Waru’s offending as more serious. He was the instigator and initiator of the attack and he alone was armed – and armed with two potentially lethal weapons. He said himself that he intended to use those weapons to kill one of the prison officers. But, after anxious consideration, we do not consider we can support the disparity of 5½ years between Wylie J’s 10½ year starting point for Mr Waru, and the 5 year starting point adopted by Lang J for each of the three co-offenders.
[40] The main feature distinguishing Mr Waru is that he alone was armed. But, as Lang J noted in sentencing the three co-offenders, they all knew that Mr Waru was armed.[50] So they knowingly participated in an armed attack on a prison officer, ultimately on six officers.
[41] We are alive to Ms Lummis’ submission that a disparity argument cannot be built on comparable sentences which are too low. But we do not view the sentences imposed by Lang J as an inadequate sentencing response to the co-offenders’ involvement in this armed attack. Accordingly, applying the well-established test, we do consider that the disparity between the sentence imposed on Mr Waru and those imposed on his three co-offenders would lead a reasonably minded independent observer to believe that something had gone wrong with the administration of justice.[51] To reduce the disparity to a justifiable level, we will allow this appeal and reduce the sentence under appeal by 12 months.

A crushing sentence?

[42] Mr Waru will be 29 in September this year. He first appeared in the Youth Court when he was 13 or 14, on charges involving violence and dishonesty. Over the ensuing years he appeared another four times in the Youth Court and then in the District Court, mainly on charges involving violence and wilful damage. In 2006 he was sentenced to 2 years imprisonment for aggravated robbery. In December 2008 he was again imprisoned for aggravated robbery, this time for 7½ years. In May 2012 a cumulative sentence of 2 months imprisonment was imposed on Mr Waru for assaulting a prison officer. Then, in March 2014, a further cumulative sentence of 5 years and 8 months imprisonment was added for Mr Waru’s part in the Spring Hill Prison riots. The sentence of 7 years and 10 months imprisonment under appeal is cumulative upon those three earlier sentences. Wylie J also gave a first strike warning.
[43] In considering whether to impose a minimum period of imprisonment, Wylie J set out some of this background. He then said:[52]

You have therefore spent 10 years in custody, and you have never had the opportunity to apply for parole. The sentences I have imposed are cumulative on your existing sentence. You will not be in a position to apply for parole until you are well into in your 30s.

[44] On the basis that the usual parole period was sufficient to hold Mr Waru accountable, and to fulfil the other statutory purposes detailed in s 86 of the Sentencing Act, Wylie J declined to impose a minimum period of imprisonment.[53]
[45] Concerned as to Mr Waru’s overall position, including as to whether the Judge was correct as to his eligibility for parole, we requested a memorandum from the Crown. A very helpful memorandum has been provided by Ms Lummis. This outlines the position that results from the combination of ss 75, 77 and 84(4) of the Parole Act 2002:
[46] The significant point is that Mr Waru is already eligible for parole. Whether, and if so when, he is granted parole are therefore matters largely in Mr Waru’s own hands. When sentencing Mr Waru, Wylie J noted that he had been released into the general prison population and was learning to read and write in the hope of attaining the skills necessary for employment.[54] The Judge encouraged him to continue with these efforts. So do we.

Result

[47] The application for an extension of time to appeal is granted.
[48] The appeal is allowed.
[49] The sentence of 7 years and 10 months imprisonment under appeal is quashed.
[50] A sentence of 6 years and 10 months imprisonment is substituted.






Solicitors:
Crown Solicitor, Auckland for Respondent

[1] R v Waru [2017] NZHC 1265.

[2] R v Pani-Marsden [2017] NZHC 2696 at [6].

[3] R v Waru, above n 1, at [25].

[4] R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA) at [34].

[5] R v Waru, above n 1, at [36].

[6] At [37].

[7] At [39].

[8] At [40].

[9] At [43]–[45].

[10] At [46].

[11] At [52].

[12] At [54].

[13] At [55].

[14] Sentencing Act 2002, s 85(2).

[15] Tryselaar v R [2012] NZCA 353.

[16] R v Connelly [2010] NZCA 52 at [31].

[17] We note the summary of facts has Mr Nuku starting the attack.

[18] R v Taueki, above n 4.

[19] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [38].

[20] R v K (CA345/02) (2003) 20 CRNZ 62 (CA) at [20].

[21] Feterika v R [2008] NZCA 127 at [47]; and Steigrad v R [2012] NZCA 417 at [35].

[22] We note the summary of facts indicates Mr Waru only attacked two of them. This is consistent with the summary of the injuries to the officers as described at the end of the summary of facts.

[23] R v Wereta [2015] NZHC 2248.

[24] At [30].

[25] At [31].

[26] At [9].

[27] R v Nahi [2015] NZDC 20838.

[28] Lake v R [2017] NZCA 39.

[29] At [6].

[30] At [7].

[31] At [7].

[32] R v Connelly, above n 16.

[33] Kepu v R [2011] NZCA 104.

[34] At [11].

[35] At [18].

[36] At [23].

[37] At [26].

[38] Tryselaar v R, above n 15.

[39] Karetu v R [2013] NZCA 408.

[40] R v Wereta, above n 23.

[41] Lake v R, above n 28.

[42] Sentencing Act, s 85(2).

[43] Karetu v R, above n 39, at [18]; Tryselaar v R, above n 15, at [18]; Kepu v R, above n 33, at [18]–[19]; and R v Connelly, above n 16, at [29]–[31].

[44] R v Nuku [2017] NZHC 2423.

[45] R v Briggs [2017] NZHC 2690 at [17].

[46] R v Pani-Marsden [2017] NZHC 1736 at [6].

[47] At [4].

[48] R v Pani-Marsden [2017] NZHC 2402 at [6].

[49] R v Nuku, above n 44, at [9].

[50] R v Pani-Marsden, above n 2, at [5].

[51] R v Lawson [1982] NZCA 67; [1982] 2 NZLR 219 (CA) at 223.

[52] R v Waru, above n 1, at [65].

[53] At [66].

[54] At [51].

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