R v Wamoana [2021] NZDC 13270 (2 July 2021)

Last Updated: 30 June 2022

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

IN THE DISTRICT COURT AT GISBORNE I TE KŌTI-Ā-ROHE KI TŪRANGANUI-A-KIWA

CRI-2019-082-000088

[2021] NZDC 13270

THE QUEEN

v

DEBDEN OSBOURNE WAMOANA

Hearing:	2 July 2021
Appearances:	M Blaschke for the Crown (via link) M Phelps for the Defendant (via link)
Judgment:	2 July 2021

NOTES OF JUDGE W P CATHCART ON SENTENCING

[1] Mr Wamoana, as you know, the charges upon which you appear for sentence today are kidnapping, injuring with intent to injure, assault on a person in a family relationship, wilful damage, obstruction and assault.

Facts

[2] I need to record the facts. They are no longer in dispute.

[3] The complainant, [name deleted – victim 1], should rightly be called the victim now because of your guilty pleas to those charges that all relate to her. You were in an on-and-off relationship with her for several years, no children together. Prior to the offending you spent several weeks living together. It is accepted your behaviour

R v DEBDEN OSBOURNE WAMOANA [2021] NZDC 13270 [2 July 2021]

during that period became erratic, controlling and possessive of her. You became paranoid about her and would always be physically close to her.

[4] On 23 February 2019, [victim 1] was at your house. An argument started. You ended up scratching the side of her face with your fingernails. It caused red scratch marks down the side of her face. They were still visible three days later.

[5] On the morning of 24 February 2019, [victim 1] was again in the same house, in your room. She told you she wanted to leave. You got upset because you believed she was interested in “hooking up” with your older brother. You threatened to smash [victim 1]’s face in and said to her: “You think you’re a tough bitch eh?”

[6] She got her cellphone with the intention of calling her mother for help to leave. You grabbed the phone from her, pushed her to the ground and stood in the doorway. You threatened again to smash her face in. And you smashed the phone, breaking it.

[7] [Victim 1] attempted to leave by climbing out the window. However, you grabbed her, pulled her back in and onto the bed. You then stood in the doorway and said: “You’re not leaving this room bitch.” [Victim 1] asked if she could use the toilet as an excuse to get away from you. You agreed but stood in the door and watched her go to the toilet. She was too scared to go to the toilet.

[8] You grabbed her by the hair, pulled her off the toilet into the hallway and called her a “lying bitch”. While she lay on the ground you punched her to the face several times, causing her to almost pass out. As a result of being assaulted, she urinated all over herself. Then you continued to call her names and dragged her along the hallway on the carpet to the bathroom by her hair. In doing that you caused substantial carpet burns to her knees and elbows.

[9] You then threw her into the shower and turned it on cold. And you slapped her about the face with an open palm. You used a dirty towel to scrub her body roughly while you were saying things to her like: “You’re a dirty bitch.” After getting out of the shower, [victim 1] asked you to let her leave. You told her that she made you do that to her face. You then took her back to your bedroom and told her to stay there.

[10] Believing she had no option but to stay, she took three Tramadol tablets and two sleeping pills and went to bed. When she awoke, she vomited. She was unable to eat, talk coherently and her jaw was clicking.

[11] Later during the morning of 25 February, she began cleaning up the house. Your niece and her two children, including her two year old son, arrived. Also at some stage [a friend of yours] arrived. You told [your friend]: “Watch you don’t touch her or anything bro or I’ll punch her in the fucking face.”

[12] Later the little two year old was given some food. You took exception to that. The child was sitting on a chair in the dining room. You yelled at the two year old who began crying and screaming. You told the child to “shut the fuck up”. And you kicked the seat out from underneath the child causing him to fall to the ground. While on the ground crying you picked him up, tried to make him stand on his feet and continued yelling abuse at him. Your cousin then left the address with her children and called the police.

[13] The police attended the address after receiving that call. When they arrived, you were on the toilet. You told [victim 1] to stay in the toilet with you so she could not escape. Police knocked on the doors and windows for approximately five minutes with no response. While police were knocking, you instructed [victim 1] to tell the police she had been in a fight with two girls to explain why she had bruises on her face. She was told by you to tell the police the fight happened two days ago. However, believing no one was home, the police officers left and made contact with the informant.

[14] After receiving further information that [victim 1] was likely being held against her will and that she had injuries, the police returned. They again knocked on the door. This time for a couple of minutes. They called out for you to come to the door. You eventually did and the police entered.

[15] [Victim 1] was located in your bedroom with significant facial bruising. When the police officers attempted to speak with her, you intervened, and put yourself in the doorway between the detective in attendance and [victim 1]. You were warned to

move out of the way. You refused and turned to [victim 1] and began whispering something to her. You said to the police: “You’re not fucking coming in here.” You were arrested for obstruction and removed from the address.

[16] When spoken to by the police you said you had never assaulted [victim 1]. You said the bruising on the side of her face was caused during a fight she had with an unknown person on Saturday 23 February.

[17] I now turn to the facts surrounding your recent assault on [a corrections officer

– victim 2]. It occurred on 21 February 2020 at the Rimutaka Prison in Wellington. [Victim 2] was conducting a routine cell cleaning in the management unit where you were placed. He requested you to leave your cell so it could be cleaned. You did so and approached the officer, extended your left hand in an attempt to obtain a handshake stating: “You all good?” The officer extended his hand to shake yours but as that happened you struck him in the jaw with your right clenched fist. It knocked the officer to the ground causing him to lose consciousness momentarily. You then attempted to fight with other staff members before you were restrained by multiple corrections officers.

Approach to sentencing

[18] There are various approaches I could adopt to this sentencing, Mr Wamoana. The approach I adopt is to fix a global starting point for the charges relating to kidnapping and other offences against [victim 1] including the offending against the officers as one set. Then uplift that starting point to reflect the discrete assault on the corrections officer. Part of the analysis includes importantly adjusting the starting points for totality purposes.

Aggravating Factors

[19] There are aggravating features in the first set of offending that I address in a global way. In doing so, there is a need to avoid double-counting, particularly in relation to the kidnapping charge. This is because case law also approaches that issue in a global sense by including related offending.

[20] Here, there was an element of vulnerability because [victim 1] was, as Mr Phelps concedes, entitled to protection of that house arrangement and she became increasingly more vulnerable as the incident progressed in the sense of being more physically vulnerable to you. The breach of trust here exists only to a degree Mr Phelps argues. I accept his submission. The breach is to a degree inherent in the relationship. Also, this incident involved physical violence and injuries in the way described. And I accept there was an element of psychological abuse and degrading conduct towards [victim 1].

[21] The duration of her unlawful detention is not a clear-cut matter. Whilst overall it appears to have started on 24 February when the violence began and carried on into the next morning, it may include a period of time where she was asleep. It is difficult to infer whether the period of detention was continuous or rather intermittent. So it is not a clear-cut issue as far as I am concerned.

Starting point

[22] There has been competing submissions as to the appropriate starting point. The Crown referred me to four decisions essentially: Anguna v R, Joe v R, Cassidy-Gugich v R and Heke v R.1 Mr Phelps referred me to R v Wharton, R v Liev, Wilson v R and R v Rei as other examples.2 I have considered all those cases. There is no tariff for kidnapping offending given its variance in facts.

[23] The Crown argues here the kidnapping of partners or former partners accompanied by domestic violence usually results, according to comparative case law analysis, in a start point somewhere between two and five years. Much, therefore, depends on degree of violence used, length of duration and other culpability factors. The Crown argues here for a starting point of three and a half to four years’ imprisonment for your overall offending across that 23 to 25 February period.

1 Anguna v R [2020] NZCA 127; Joe v R [2019] NZCA 394; Cassidy-Gugich v R [2016] NZHC 3027;

and Heke v R [2016] NZCA 38.

2 R v Wharton [2003] NZCA 63; (2003) 20 CRNZ 109 (CA); R v Liev & Ors [2017] NZHC 2253; Wilson v R [2015] NZHC 2653; and R v Rei DC Hawera, CRI-2009-021-622, 15 July 2009.

[24] The cases cited by the Crown are helpful but they are also dissimilar in several respects.

[25] Anguna v R differed in substantial respects to your current offending. It involved a greater degree of violence. But there are, as the Crown points out, some important differences. It involved a lengthy detention of a former partner marked by the threat of violence and paranoia. You inflicted violence.

[26] Also, Crown submits your offending is considerably more serious than the kidnapping and violence in Joe v R. I note, however, that the victim in Joe suffered significant injuries and there was an element of home invasion involved.

[27] In contrast, Mr Phelps’ reliance on the case law led him to the submission that a starting point in the range of two years six months is appropriate to reflect the kidnapping and domestic violence offending. He argues for an uplift of no more than three months on the assault of the corrections officer.

[28] Mr Phelps identified factors pointing towards a lower starting point than that advocated by the Crown. I summarise them here. There was no protection order element here, there does not appear to have been a significant backdrop of domestic violence leading to this offending. And you did share the address with the victim. Also, the offending appears to be a reflection of your own insecurities about whether she was loyal to you. The injuries, whilst not insignificant are not of the most serious kind. There was damage to the victim’s phone. But there was no gang element involved here. That was not the motive driving the offending. It has to be accepted that during the period of detention, the victim took sleeping pills and other drugs to help her go to sleep for the best part of a day and an evening. Also there was the unusual feature of other people attending the address during the detention period.

[29] It is not your typical detention-type conduct in a domestic context. Apart from some of these unusual features, your conduct reflects you had real control over [victim 1]. For example, she was too afraid to leave the address even during the presence of other people.

[30] I infer also that it was your conduct towards that little child that caused the mother of that child to call the police which led to their arrival and eventual intervention. It was really therefore the actions of a third party that brought all this to an end.

[31] Having said all this, I do not find the task of fixing a starting point for the first set of offending an easy one here. I do not accept Mr Phelps’ submission that standing alone your violent offending would fall within band 1 of Nuku v R as a cross-checking course because there are features which place that offending, standing alone, in band 2 of Nuku.3 Having said that, I do not accept the Crown’s submission such offending falls within band 3 of that decision. But I accept it is a helpful check on the starting point.

[32] As mentioned earlier, all of this needs to be adjusted for totality. Overall, therefore, taking all those factors into account I have arrived at a figure of three years one month as the global starting point not including the assault on the corrections officer.

[33] I now turn to that offending. It is different in nature. It is very serious because of the prison context in which it occurred. Corrections officers are at high risk from inmates. They would rightly expect the Courts to approach such offending to ensure deterrence generally to other inmates is maintained. When I take into account those factors, I uplift, again reflective of totality, by a period of three months.

Uplift for previous convictions

[34] There must be an uplift for your previous convictions to the extent to which they are related to domestic violence. Twelve of your convictions are clearly marked as domestic violence-related. As you know you received a three-year sentence in 2009 for injuring with intent to injure. There are several other convictions for violence. And you received not insignificant terms of imprisonment for many of those.

3 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

[35] An uplift is required here for all relevant principles. There is a need to deter you further. I must recognise this history reflects your entrenched character here. But, there is a real need to avoid you being sentenced twice for the same thing. Bill of Rights considerations and norms demand any increase should be at a modest level. That is the principle in Orchard v R.4 When I take all factors into account, the uplift is three months for relevant previous convictions.

Discount for guilty pleas

[36] I now move to the issue relating to discount for guilty pleas.

[37] Ordinarily, Mr Wamoana, I would not entertain a substantial discount for guilty pleas for someone who waited until just before the trial starts to plead guilty to significant charges like those you face. But this is not an ordinary case.

[38] The delay in getting to this point is largely through your unwillingness to engage with any counsel and the Court. And as I mentioned to counsel, this may reflect your inherently distrustful attitude towards authority detailed in other material before me.

[39] The significant feature, however, was the withdrawal of the rape allegation. That was an allegation that I know from previous hearings you were anxiously concerned about. And my minutes record various comments you made about that allegation and your responses to it. If that allegation had been sheeted home, it would have had produced a dynamic change to outcome here. Thus, withdrawal of this very serious allegation is a factor that must be recognised and it occurred only at the date of trial.

[40] Also I take into account in part your attitude to authority and your distrust of authority, including courts and lawyers. You were never really in the right frame of mind to make a decision until you reached the courtroom door. To be quite frank, Mr Wamoana, you had the benefit of Mr Phelps’ intervention to assist you through the final stages.

4 Orchard v R [2019] NZCA 529.

[41] In the end, taking into account all those factors, I discount for guilty pleas a period of seven months. That reflects a substantial discount but not of course the maximum available.

Mitigating factors

Personal circumstances/cultural factors

[42] I now move to your personal circumstances. There has been a lot of case law on cultural matters in recent times. I often reflect that if it was not for a Gisborne case, R v Keil that started the run of cases, whether any judge would have begun giving substantial discounts for background cultural reasons.5 Whilst that first instance case does not receive recognition in the academic analysis others now pour into this area of the law, someone had to start it. And it started in Gisborne. Gisborne judges are therefore not unfamiliar with the need for consideration of these personal circumstances.

[43] Mr Wamoana, I have read so many similar reports about how young Māori men in particular suffer in life for a variety of reasons. The Court of Appeal recognised in cases like Carr v R and Zhang v R these factors can be taken into account to the extent to which they relate relevantly to upbringing affected by poverty, violence, racism, dislocation, gang involvement, methamphetamine or other drug use. It is a mitigating factor where a credible narrative establishes that those factors or backstory diminished the offender’s moral culpability or impaired his or her choice. Where so, they establish a sufficient causative contribution to offending.6 That is lawyers’ language for taking into account an offender’s relevant backstory.

[44] Mr Wamoana, your backstory is tragic. Mr Phelps said, it was “harrowing”. It was an horrific upbringing. If the information before me is in fact true, you have experienced brutal, uncaring state-appointed overseers in your life from a young age. You suffered abuse repeatedly in institutional state-care settings. You suffered physical and sexual abuse at the hands of male and female officials whilst under

5 Keil v R [2017] NZCA 563

6 Carr v R [2020] NZCA 357; and Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

institutionalised state care. It is the type of case that ought to be considered by the Royal Commission.

[45] When I drill down, it appears to me that what angers you is the sexual abuse you suffered in those settings. I think those experiences continue to haunt you. You need to deal with that issue. You need the Royal Commission to hear your story. I do not intend to go into further specific detail about it but to let you know I have taken the points into account today.

[46] In summary, your upbringing was marked by neglect, physical and sexual assault, whānau dysfunction, dislocation, limited education, exposure to gang culture (albeit not relevant here) and early exposure to the criminal justice system. I had some of that backstory at your earlier sentencing hearings before me. But this is the first time I received the full detail, again due to the helpful assistance of Mr Phelps. Lawyers are useful, Mr Wamoana. You need to appreciate you cannot handle these things on your own.

[47] Standing back taking into account all those factors including the personal tragedy you suffered in relation to loss of your mother, I give a further discount of seven months, sir.

[48] That means, Mr Wamoana, I have reached an end sentence of 29 months. But that does not take into account one further factor.

Expression of remorse

[49] That further factor relates to the remorse element. Today I received your letter expressing remorse. You speak about the stupidity and foolishness of your conduct and regret what you did to [victim 1]. You talk about having flashbacks, lack of sleep relating to the mistreatment you suffered, mental health issues and grieving factors also. Also, this remorse was to a degree reflected in [victim 1]’s evidential video interview. I give a further discount of one month.

Conclusion

[50] I have, therefore, arrived, Mr Wamoana, at a figure of two years four months. When I go back to Mr Phelps’ comment at the outset, he said the figure of time on remand of 857 days is equivalent to two years four months. In fact, it is equivalent to two years four months and one week.

[51] Mr Wamoana, the end sentence is one week under the equivalent of the time you have served. In my view, the appropriate outcome is therefore to impose a sentence of time served. That means you will be released today.

[52] I impose standard release conditions only.

[53] On the charges of kidnapping and injuring with intent to injure, the sentence is

time served, 857 days.

[54] On the assault of a person in a family relationship, 200 days’ time served, concurrent.

[55] Wilful damage, 30 days’ time served, concurrent.

[56] Obstruction charge, 30 days’ time served, concurrent.

[57] Assault on correction officer, 60 days’ time served, concurrent.

[58] Mr Wamoana, you are now free to go.

Judge W P Cathcart

District Court Judge

Date of authentication: 22/7/2021

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.