R v Wirihana [2019] NZDC 9710 (22 May 2019)

Last Updated: 22 September 2021

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT HAMILTON I TE KŌTI-Ā-ROHE KI KIRIKIRIROA

CRI-2018-019-003969 CRI-2017-019-006069

[2019] NZDC 9710

THE QUEEN NEW ZEALAND POLICE

v

DARRYL WIRIHANA

Hearing:	22 May 2019
Appearances:	G Kelly for the Crown M Feist for the Prosecutor New Zealand Police C Bean for the Defendant
Judgment:	22 May 2019

NOTES OF JUDGE K F B SAUNDERS ON SENTENCING

[1] Mr Wirihana, you are for sentence on nine charges in total. There are Crown charges of aggravated burglary, assault with a weapon, three charges of possession of an offensive weapon and possession of a utensil, a cannabis pipe. You pleaded guilty to those charges at trial after the first day of evidence.

[2] There are also police charges, a charge of injuring with intent to injure, resisting police and common assault. I will set out the facts of that police offending first because it is first in time.

THE QUEEN v DARRYL WIRIHANA [2019] NZDC 9710 [22 May 2019]

[3] On 15 September you were drinking at a bar. There was a large crowd there. You were intoxicated and were being abusive to other patrons. You were spitting at them. You were asked to leave and when you were asked to leave you became aggressive and began throwing punches. A security officer saw this and pulled you away. You punched him on the mouth splitting his bottom lip.

[4] The police were called and you were arrested but resisted, striking out at the police. At least one of your blows struck a constable in the face. You continued to struggle and took two police officers with you when you fell onto the ground. You then bit down hard onto the same constable’s hand causing a deep laceration and indeed drawing blood.

[5] The victim impact statement I have from that officer is particularly telling. Police officers tend to be quite stoic. They accept as part of their job that they are assaulted verbally and physically. But for this constable your offending has had a significant impact on him because of the fact that you told him after you had been arrested that you had Hepatitis C. He was engaged to be married and the strain of having to wait for blood tests was significant on him. He has had three tests to date at three, six and 12 months and all thankfully have been negative.

[6] In terms of the bite and the laceration it caused it could not be stitched because a human bite must be allowed to weep so that he was on light duties again as a result and he continues to have the scar on his hand.

[7] The Crown charges, they all occurred on 28 June 2018. The victims, a group of male friends had gone out from their home and when they returned were working on a vehicle it seems in the garage area of their address.

[8] One of the young men noticed a smell of cannabis from inside the house and he went inside to see where it was coming from and into his bedroom. He found you standing there. He said when he gave evidence at trial that you were holding two hammers, one in each hand, and you were wearing a balaclava. You were disguised, he could not see you. You said something in an aggressive tone to him and he ran downstairs and told his friends about you being in the house. They moved back away

from the main building but you came out of the house and you had the hammers up in a fighting stance and you responded aggressively, making a comment that was quite bizarre in context I think, claiming that the house was yours and you told them not to call the police. You walked slowly towards them. Again you did continue to have the hammers in your hand and the young men retreated, they ran away from the house. Instead of leaving you went back inside and you filled up a pillowcase with items. You then left the address with that property and were located by the police a short time later. You were searched and a tyre iron, a knife blade, a butterfly knife and a cannabis pipe and other items used in the burglary were found on you.

[9] There was no restorative justice conference but the victim impact statements from the victims I have three statements from three of the young men who were home that day. They all have a common theme. It was frightening for them seeing a stranger on their property holding the hammers. [Victim 1] said that he thought you were going to smash him with them and as a result for a few weeks after he was nervous every time he went up the stairs to his room and even though he knew that you could not have been in the house again it still continued to frighten him.

[10] [Victim 2], he says that he is constantly checking now to see if the doors and windows are locked at night and [victim 3] he comes from South Africa where he says incidents like that are all too familiar but he did not think it would happen in New Zealand and it has taken him some time before he stopped being so jumpy.

[11] I have a pre-sentence report which I have read and in that report you do say that you only tried to scared the young men so that you could run away and you have repeated that in your letters. I accept they are genuinely written Mr Wirihana but the fact does remain that while you may have scared them and they ran away, you did not leave and you did go back into the house.

[12] I have also read that report from [a Psychiatrist] the section 38 report dated 20 May and it does provide me with some background information for you Mr Wirihana and I am sure it is not easy coming back to a country where you have no ties. You were deported back to New Zealand in 2016 because you have significant convictions in Australia for armed robbery. I think you spent what five and a half

years in custody in Australia for that serious offending. So you have come back to New Zealand to an unfamiliar life and to family you do not know but you do have a grandmother and ultimately Mr Wirihana you make your own choices. Not everybody who has a background such as yours, which regrettably I see all too often in this Court, resorts to violent offending, but I do accept that you are remorseful and I acknowledge that and I will give you some credit for that.

[13] I will turn first to sentencing you on the Crown charges, the aggravated burglary is the lead charge. Of course this is not an aggravated robbery but it is acknowledged that the Court can look by way of analogy at R v Mako1 which is the sentencing guide for aggravated robbery but of course make adjustments that are consistent with overall culpability and the Mako factors that are relevant here and I agree with the Crown means that your offending would fall within the scenario envisaged at para [58] is the degree of planning and premeditation, the fact that you were disguised, the use of weapons and that you went into the house unlawfully.

[14] Now para [58] of Mako says that would require a starting point of imprisonment for seven years or more and where a private house is entered that would be increased to around 10 years. The fact that we no longer have the home invasion provisions has not meant that it does not continue to be an aggravating factor because there is Court of Appeal authority that says it does.

[15] As to the charge of injuring with intent to injure which is the lead charge for the police matters, I take the view that band two of Nuku applies because of the Taueki2 factors that are present here including the punching to the head and the fact that your victim was a public official and where the victim is a law enforcement officer carrying out their duty that is a serious aggravating factor.

[16] Turning then to the submissions that have been filed by the Crown, the police and Mr Bean. The Crown submits that the lead charge for sentencing and it must be so, Mr Bean acknowledges this, is the aggravated burglary, but there is real distance

1 R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA).

2 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39; R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

between the starting point urged on me by the Crown and the starting point urged on me by Mr Bean.

[17] The Crown identifies the planning and premeditation as an aggravating factor, your disguise and the Crown does not shy away from the submission that you were prepared and were armed with those weapons. You were unlawfully in the property, your offending has had an impact on the victims and of course there are your previous convictions. So the Crown submits that a starting point of six years' imprisonment is warranted for the aggravated burglary with uplifts for the assault with a weapon of six months, for the remaining charges three months and for your previous convictions three to six months’ imprisonment.

[18] The Crown does not accept you are entitled to any discount at all and what Ms Kelly points out today and rightly so, is there is always a risk when you choose to take a matter to trial that further evidence will come out at trial. It was clear to you. You knew there was that risk and it is, says Ms Kelly, something you must now live with.

[19] There is no room for a 25 percent discount for your ultimate guilty pleas which is what Mr Bean urges I give you. He submits a starting point in line with the decision of the Court of Appeal in Daniels3 of imprisonment for two years and six months and argues that the other charges should all be within that starting point. He says that the offending in Daniels was more serious. He acknowledges the element of premeditation and you were unlawfully in the home and of course the effect on the victims but Mr Bean categorises this as a burglary gone wrong. He asks me to form a conclusion that you went inside while they were out, they disturbed you and so this did not have with it the home invasion element per se. He says that your guilty pleas would attract a full 25 percent credit because of the change in position at trial with one of the witnesses that did not quite accord with full disclosure. The police charges cumulatively, as he accepts they must be, would warrant an uplift of only six months’ imprisonment. He points to your difficult background and to the fact that you have no family ties of any strength in New Zealand.

3 Daniels v R [2015] NZCA 295.

[20] The police point to the serious injury to the constable. It was unprovoked, gratuitous violence. He was struck multiple times to the head and of course he is a public official. Now the police within Nuku argue for a much higher starting point than that urged on me by Mr Bean of two years to two and a half year’s imprisonment with some further uplift for the other offending but acknowledges a slight discount for your guilty plea (although on the day of the Judge alone trial) and also acknowledges given totality and the fact that it must be a cumulative sentence further adjustment will be required. It says that at its lowest it would mean an end sentence of 18 months' imprisonment.

[21] Cumulative sentences are warranted for you Mr Wirihana and that is something that I take into account in the sentences I will impose on you together with of course totality. Now cumulative sentences are warranted because the Crown and the police offending is quite distinct in nature and of course in time, but as I said within the sentences totality, your overall culpability, is what will drive the end sentence for you.

[22] The overall purpose of sentencing you is to hold you accountable, to deter and to denounce you.

[23] Turning first to the Crown charges. I agree the aggravating features are as identified by the Crown. You did plan this. There was premeditation and you were armed. You were disguised and you were unlawfully in the victims’ home. You had multiple weapons with you. Two hammers were brandished in the home. You confronted the young men and it was clearly frightening for them. But I do not agree that the starting point is as high as six years’ imprisonment nor do I agree that there ought to be an uplift for the other offending and I am particularly persuaded by the comments in Daniels that the overall approach for you for that offending is where I see your overall culpability and that would include the confrontation outside.

[24] I do accept that this was in effect a single incident warranting concurrent sentences.

[25] When I stand back and look at the totality of what occurred that day I am satisfied that a starting point of four years’ imprisonment meets your overall

culpability. Your offending in Australia warrants an uplift of three months' imprisonment. That gets to an end starting point of four years and three months' imprisonment.

[26] Turning then to what I can give you by way of mitigation. The usual factors justifying a Hessell4 discount for your guilty pleas do not apply because you pleaded guilty on the second day I think it was of trial and I do not accept the submission that it warrants any discount, but I do accept you are remorseful and I find when I look at all of the matters contained in the s 38 report, the pre-sentence report and I have regard to your letters apologising to the victims, that that can attract a 10 percent discount.

[27] That means then that the sentence I impose on you on charges 1 and 2 which are the aggravated burglary and the assault with a weapon is imprisonment for three years and 10 months. On all other charges, that is charges 3, 4, 5 and 7, I sentence you to imprisonment for three months concurrent. There is also an order for destruction.

[28] Turning then to the police charges. The aggravating factors there as I have already indicated are the fact that this was an assault, a serious assault on a police officer and that there were real consequences to him. Moderately serious injuries to his hand but the emotional scars run deeper.

[29] I need to have regard to the fact this will be a cumulative sentence and I can indicate to you that that has driven the overall sentence I will now impose on you. The injuring with intent charge warrants a starting point of imprisonment for 12 months. The other offending in this case does warrant an uplift and I give an uplift of three months. I do not give you any uplift on these charges for your previous convictions because they were factored into the sentence on the Crown charges. That means an end starting point of imprisonment for 15 months.

[30] I then turn to the discount that I can give you for your guilty pleas although they were at the Judge alone trial and while I acknowledge that there were numerous occasions when the Judge alone trial was to proceed, equally this matter is not as clear-

4 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

cut as the Crown matters where I gave you no discount for a guilty plea. I do give you a discount in this case of 10 percent for your guilty plea and also factor in your remorse which means an end sentence which has to be cumulative on the charge of injuring with intent to injure of imprisonment for 12 months.

[31] On the two remaining charges you are convicted and sentenced to imprisonment for two months and that is concurrent within that 12 month sentence. So 12 months' imprisonment cumulative on three years and 10 months.

K B F Saunders District Court Judge