THE QUEEN v TORY JOHN WAAKA [2000] NZCA 41 (9 March 2000)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca427/99

THE QUEEN

V

TORY JOHN WAAKA

Coram:	Thomas J Blanchard J Tipping J
Decision:	9 March 2000

(ex parte)

judgment of the court DELIVERED BY TIPPING j

[1] The appellant pleaded guilty to one count of wounding with intent to cause grievous bodily harm and one count of assault on a female. He was sentenced in the District Court at Christchurch to 6 ½ years imprisonment. He now appeals that sentence.

[2] The appellant applied for legal aid in respect of this appeal. The Registrar declined the application after the necessary consultation pursuant to s15 Legal Services Act 1991. The appeal is, therefore, being determined on the basis of written submissions.

[3] Both charges relate to incidents of domestic violence. The assault relates to a relatively minor incident where the appellant struck his partner, the complainant, across the face. The more serious wounding charge relates to an incident occurring some 10 days later. It involved a prolonged attack on the complainant where the appellant punched, kicked and beat the complainant with a jug cord. The complainant was left semi-conscious and was in hospital for four days.

[4] Essentially the ground of appeal that can be taken from the written submissions is that the sentence is manifestly excessive having regard to sentences imposed in other cases involving a charge of wounding with intent. While sentences on the same charges should be broadly comparable, the sentence in each case will depend on the facts and circumstances relevant to that case. The sentencing Judge relied on the judgment of this Court in R v Hereora [1986] 2 NZLR 164, recently affirmed in R v Clotworthy (1998) 15 CRNZ 651. In these cases this Court set out categories of sentence for a charge of wounding with intent to injure or cause grievous bodily harm. The Court held that for cases involving substantial aggravating features the appropriate starting range is between 5 and 8 years imprisonment. In cases of unusually grave aggravating features a starting point of up to 12 years would be appropriate. The Judge held that the offending fell within the former category of 5-8 years imprisonment and the circumstances of the offending placed it at the highest end of this sentencing range. Therefore a period of 8 years imprisonment was taken as a starting point, with credit given for the guilty plea. In reaching this conclusion the Judge noted as aggravating features: the duration of the attack; the extent of the injuries inflicted; the use of the cord; and the threat of violence to a friend of the complainant who tried to intervene.

[5] In submissions, the appellant disputes some of the elements of the summary of facts upon which he was sentenced. In particular he offers as motivation for the attack the fact that he came home to find the complainant in bed with another man, and denies the use of the jug cord in the attack. In respect of these challenges to the facts it is sufficient to note that counsel for the appellant confirmed at sentencing that there was no challenge to the summary of facts in any way as far as the wounding offence was concerned. There is no issue of any failure by counsel in respect of the sentencing hearing and therefore the facts relied upon for sentencing purposes must be those that the appellant pleaded guilty to as set out in the police summary of facts.

[6] On those facts, the Judge took as his starting point the top of the range but gave a significant discount for the pleas of guilty.He also had to recognise the earlier unrelated, albeit comparatively minor assault.We do not consider that in all the circumstances the sentence which was ultimately passed of 6½ years was inappropriate.The appeal is therefore dismissed.