Waara v R [2010] NZCA 204 (20 May 2010)

Last Updated: 27 May 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA795/2009 [2010] NZCA 204

BETWEEN JOHN HENRY WAARA
Appellant

AND THE QUEEN
Respondent

Hearing: 27 April 2010

Court: Baragwanath, MacKenzie and Lang JJ

Counsel: S J Gill for Appellant
M E Ball and P D Marshall for Respondent

Judgment: 20 May 2010 at 10am

JUDGMENT OF THE COURT

A The appeal is allowed in part.

2. The sentence of four years imprisonment is quashed and replaced by a sentence of three years and six months imprisonment on count 1 and a concurrent sentence of 12 months imprisonment on count 2.
   

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REASONS OF THE COURT

(Given by Baragwanath J)

[1] John Henry Waara appeals against a sentence of four years imprisonment following conviction on two counts affecting his former partner. He was convicted by a District Court jury of injuring her with intent to injure on 17 October 2007. He had previously pleaded guilty to assaulting her on 26 November 2007 using a plastic baton as a weapon. He was acquitted on other counts. Judge Weir employed a starting point of two years imprisonment on the first count and an 18-month cumulative term on the second. He added an uplift of one year imprisonment on account of the appellant’s previous record and deducted six months to give credit for remorse expressed and a favourable pre-sentence report. The result was a four-year term.
[2] Mr Gill for the appellant withdrew the contention in the written submissions that two years for the first count was excessive. He submitted that the starting point adopted by the Judge for the second offence was too high and that he failed to take into account the totality principle.
[3] The Crown supported the sentence imposed by Judge Weir.

The facts

[4] At the age of 17, the complainant had entered a de facto relationship with the appellant which lasted for seven years. The appellant is the father of her daughter. The appellant is 11 years older than the complainant and was a patched gang member with 135 criminal convictions, 20 of them for violent offending.
[5] The Judge found at sentencing that on the first occasion in October following an argument the couple’s child started crying after the complainant had walked out of a bedroom, gone to the child’s room and slammed the door. The appellant entered the room and punched the complainant to the ground, inflicting ten to 12 punches on her. He stomped on her five or six times in the chest area, particularly on the left hand side of the ribs, fracturing one and causing her excruciating pain. The child, having witnessed this, punched her mother in the face. The appellant’s response was to say “Good one, even [the child] hates you”. The Judge accepted the evidence of a counsellor who said that later the day the complainant was very frightened and shaking, indeed petrified. She decided to go to the police and the counsellor accompanied her outside. But the appellant was there waiting for her. Because she was petrified the appellant did not go to the police or to the hospital and returned to live with the appellant.
[6] On the second occasion in November, because of the dysfunctional nature of the continuing relationship, the complainant decided to leave with her daughter to go back to her parents. The appellant picked up a plastic glitter wand and whipped the complainant around her legs so hard as to break it and leave a distinctive “tramline” mark. The appellant told her that she wasn’t going anywhere with his daughter. He then went out for a cup of tea or coffee which the Judge considered indicated the casual attitude the appellant had had to violence towards the complainant over a number of years. Her response was to climb out the bedroom window and escape to a petrol station where she locked herself in the toilet until the police arrived and she then made her complaint.

Discussion

[7] There was ultimately no difference between the parties as to the appropriateness of the two-year starting point in respect of the first count.
[8] As to the second, the Crown submitted that the overall starting point taken was three and a half years imprisonment before consideration of aggravating and mitigating features personal to the appellant. Crown counsel submitted that while that starting point may be regarded as being at the very upper end, it was nevertheless within range for the reasons:

• (a) the Judge was not dealing with a single episode, rather two separate and proximate incidents of violence, each committed in a domestic context against a single complainant and each aggravating the other;
• (b) the presence of the appellant’s young child and her involvement in the more serious offending which, while not emphasised by the Judge, is a distinguishing feature.
• (c) the impact on the complainant of the combined offending and going through the trial progress has been significant.

[9] Crown counsel cited R v Puke.[1] There the Judge, in fixing a starting point of three and a half years, adopted a global approach to conduct that had resulted in pleas of guilty to seven counts of domestic violence and related offending. The facts are, however, sufficiently different to afford little assistance. The essential question here is whether the second offence can justify the 18-month sentence imposed upon it. We are satisfied that the answer is no and that a 12-month sentence is appropriate.
[10] We accept that the brutality of the appellant’s conduct the subject of the first count, directed towards his vulnerable partner requires a significant prison sentence. But proportionality must be maintained and we agree with the parties’ agreement on a two-year term from that.
[11] The second count offending is limited to a single although painful blow with the equivalent of a thin cane. Even viewed within the context of the appellant’s humiliation of the complainant, the arrogance of responding in this fashion to her statement she was leaving him, and the pain and humiliation of such blow, we do not consider that a sentence in excess of 12 months is sustainable having regard to comparable sentences in relativity for more serious offending.
[12] The appellant was not convicted of other misconduct alleged in the indictment including assault using a sword, threatening to kill and unlawful detention. The sentence must respond to the criminality actually proved.
[13] The starting point can therefore be no more than three years.
[14] The parties were agreed that an uplift of 12 months is appropriate to recognise the appellant’s disgraceful previous offending. They were also agreed on a deduction of six months for the laudatory behaviour recounted by the probation officer establishing remorse and a major change of attitude perhaps contributed to by the deterioration of his eye sight.
[15] In terms of totality we are satisfied that a term of three years six months is warranted.

Decision

[16] In the result, the disposition of the case will be in terms of the formal order of the Court.

Solicitors:
Crown Law Office, Wellington

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[1] R v Puke [2009] NZCA 582.