R v Wharewaka HC Hamilton CRI-2010-019-004904 [2011] NZHC 1583 (28 July 2011)

Last Updated: 20 November 2011

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

_{CRI-2010-019-004904}

THE QUEEN

v

ZANE SHANNON WHAREWAKA

Hearing: 28 July 2011

Counsel: P V Cornege for the Crown

K W Burroughs for the Prisoner

Judgment: 28 July 2011

_{SENTENCE OF DUFFY J}

Solicitors: Almao Douch P O Box 19173 (DX GP20023) Hamilton 3244 for the

Respondent

_{Kerry Burroughs P O Box 19307 Hamilton 3244 for the Prisoner}

R v WHAREWAKA HC HAM CRI-2010-019-004904 28 July 2011

[1] Mr Wharewaka, given your conviction for wounding with intent to cause grievous bodily harm, I am now going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice that contains a list of these violent offences.

[2] I warn you that if you are convicted of any serious violent offences, other than murder, committed after this warning, and if a judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release. If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment. That will be served without parole, unless it would be manifestly unjust to do so. In that event, the judge will sentence you to a minimum term of imprisonment.

[3] Please sit.

[4] Mr Wharewaka, you appear for sentence today, having pleaded guilty to and being convicted of one count of wounding with intent to cause grievous bodily harm.

Facts

[5] Early on 11 June 2010, you were at home with two companions, one of whom was alerted to the victim, Mr Bull, and his associate trying to steal your bike. You and one of your companions ran outside. As you left your home, you took a

100 mm knife with a 60 mm blade from a kitchen drawer. It was a folding knife. You chased the victim and his associate down the driveway and onto the street. They abandoned the bike as they ran. You then used the bike to pursue them. During this pursuit, you repeatedly threatened to kill the victim. As you were coming closer to him, you dropped the knife. At that stage, the victim was a short distance from you, and he was armed. You went back, collected the knife, and then you moved towards the victim. He went down a driveway in an attempt to hide from you. You engaged with him, and the two of you struggled. You grabbed him in a headlock, at which time he stabbed you. No one is sure whether it was a screwdriver or scissors with which he stabbed you, but counsel accept it was one of the two. You were stabbed a number of times in the stomach and then in the neck. You stabbed the victim several times with the knife. He received puncture wounds to his head and back. The tip of

the knife broke off and became embedded in his skull, necessitating surgery to remove it.

[6] You were left with five stab wounds to your abdomen, one to your throat and an impact wound to your temple. You also had your left earlobe bitten off during the struggle. The fight broke up when you and the victim went your separate ways and when spoken to by police on 15 June 2010, you admitted the facts as I have outlined.

[7] You are 34 years old. You have previous convictions.

Victim impact statements

[8] The victim is 36 years old. He is currently unemployed but is a welder by trade. Before this incident, he had never met you. He received four wounds to his head and one to his shoulder. He had to have surgery to remove 12.6 mm of the knife blade from his skull and spent three days in hospital. The knife came dangerously close to his brain. As a result of the injuries he received, he can no longer work as a welder and requires ongoing treatment. His short-term memory has been severely affected. He experiences a spinning sensation when he gets up too fast and headaches when he has to think or concentrate. He says he no longer feels safe walking around Hamilton as a result of the realisation of how close he came to being killed. He considers that you intended to kill him and that he will suffer physically and mentally for the rest of his life. It also needs to be recognised that he was convicted of the offence of assault with a weapon on you, and the Crown accepts that he was trying to steal your bike. Nonetheless, as you can see from the summary of the victim impact report I have read out, you caused significant harm to the victim. I realise you were concerned about losing your sole possession, but the threatened loss of possessions does not warrant taking that sort of action. You have realised that, as you say in your letter to the Court. The loss of liberty you now experience, the physical damage that will remain with the victim, the physical damage that you have suffered; no bicycle is worth that.

Personal circumstances

[9] You are a 34 year old Mäori male who identifies as Tainui and Ngapui. Before your four month remand in custody, you had been residing in Tokoroa with your parents, and were subject to electronic bail. It is to your father’s credit that while you were on electronic bail at his home, he would not allow you to consume alcohol or drugs and, for that reason, your relationship with him ultimately fractured and you left home. You have since been in custody. Whilst you may not have realised it then, the concern your father showed for you adhering to your bail terms shows to me that you can rely on some support from your family, which is often not the case for many persons who appear for sentence in this Court. This family support should help you to avoid offending in the future, if you choose to take advantage of it; and I note you maintain a supportive relationship with your mother.

[10] You are single with no dependents. The pre-sentence report notes you have a history of methamphetamine and alcohol abuse, though there have been no serious abuse issues in recent times. You have also suffered from epilepsy since you were

10 years old, and your use of alcohol and methamphetamine exacerbates that, resulting, the report writer says, in frequent seizures and unpredictable outbursts. The pre-sentence report writer reports that your family have said that they are scared of you when use alcohol or drugs.

[11] You told the probation officer that you agreed with the summary of facts and you admitted that you should never have pursued the victim. You said that you were very angry at the time as the bicycle was your only form of transport and you had a job interview later that day. You also said that the serious level of violence you engaged in was in response to the victim’s attack on you. But at the same time, you have expressed remorse for your behaviour, and you have indicated a willingness to attend restorative justice and to undertake a violence prevention programme. These feelings and thoughts are confirmed in your letter to me.

[12] The probation officer who prepared the pre-sentence report records that you have demonstrated insight into your propensity for violence. However, he assesses

your risk of reoffending and harming others as being moderate to high. The factors that he sees as contributing to your offending are your violent propensity, criminal associates, offending supportive attitudes and what the probation officer has referred to as a sense of entitlement.

[13] You previously sought counselling in Hamilton and expressed an interest in further rehabilitation and treatment, and your motivation in this regard is assessed as moderate.

[14] I have difficulty reconciling the probation officer’s assessment of your risk of reoffending and your propensity for violence with your criminal history. Your previous offences and the sentences you have received for those offences are not consistent with someone of a very violent disposition. The relevant offences are:

(i) Possession of offensive weapon, May 2008;

(ii) Disorderly behaviour likely to cause violence in December

2007;

(iii) Disorderly behaviour likely to cause violence in July 2007; (iv) Wilful damage in July 2007; and

(v) Assault in July 2007.

[15] Those last three matters all happened on the same date and seem therefore to be connected with the one incident.

[16] There is also an aggravated robbery in December 1994.

[17] Apart from the offence of common assault and aggravated robbery, the other offences do not involve serious violence. Furthermore, the level of sentences you have received for these offences is not consistent with serious criminality. Apart from the aggravated robbery offence in 1994 for which you received two years, six months’ imprisonment, the only other sentence of imprisonment you have received

was in 1997 for possession of cannabis for supply. The sentences for the other offending have been community-based and they have not been severe sentences of that type.

[18] Your criminal history, plus the insight you have shown in the early admission of your offending to the police, the entry of a guilty plea, and the expression of remorse, which I take to be genuine, suggest to me that you are capable of avoiding serious offending. Given your family background and gang connections, that you have stayed out of prison since 1997 is to your credit. I consider that provided you can get a better hold on managing your anger and avoid substances that reduce your level of self-control, your chances of reoffending, particularly in terms of violent offences, are moderate to low. I am basing this assessment on your criminal history, as I consider that past performance is a fairly good indicator of future performance.

[19] Your letter to the Court expresses how very sorry and regretful you are for your actions and for the long-term effects of your actions. You regret letting your anger overcome what you said was your previously relaxed state of mind, not taking appropriate steps to diffuse a situation and unthinkingly pursuing the attack on the victim. You say that while serving your sentence, you will address anger management issues to ensure you will never make this mistake in the future. Provided you take these steps, I consider there is every chance that you will avoid further offending of this type.

Crown submissions

[20] The Crown identifies the following aggravating features: (i) The use of a potentially lethal weapon;

(ii) The victim was seriously injured; (iii) Attacks to the head;

(iv) Vigilante action; and

(v) Threats to kill.

[21] The Crown notes that you have previous convictions but as this offending was significantly more serious, no uplift is sought. The Crown accepts, though your guilty plea was entered after committal and the filing of the indictment, that in the circumstances, you are entitled to a full credit for your guilty plea.

[22] The Crown acknowledges the pre-sentence report is relatively positive with genuine remorse and insight, though notes you are assessed as being at a moderate to high risk of reoffending. I have already expressed my doubts about that statement in the pre-sentence report. I also note that the report writer has described your father being a former leader of the Black Power gang in Waikato, and has said that you intend to become a patched member. However, I have been told today that you are not a patched member, have no such intentions. I note you are 34, and it seems to me that if you had wanted to be a patched member, you could well have become so before now. So I am not sure to what extent the writer of the report in assessing you has been incorrectly influenced by the gang connections through your father’s connection with Black Power.

[23] The Crown refers to the tariff case for offending of this type (R v Taueki [2005] 3 NZLR 372) and submits that the offending falls within the lower end of band three of the sentencing range; that is, given the seriousness of the offending gauged by your determined pursuit of the victim while repeatedly threatening to kill him in the presence of at least four other aggravating factors. For this reason, the Crown suggests a starting point of 10 years’ imprisonment.

[24] Mr Wharewaka, the way sentencing is done is it is necessary for me to adopt what is called a starting point and then to take into account any aggravating factors and then any mitigating factors. So the final sentence I come to you will not be known until the end after I have worked through the reasons for the sentence. As I do so, I will be referring to various starting points. So do not be alarmed at early references to starting points. They do not indicate the final sentence.

[25] The Crown also seeks a minimum period of imprisonment under s 86, as the offending, it says, is so serious that the one-third period of parole will be insufficient to meet the purposes of sentencing of accountability, denunciation, deterrence and protection of the public, though Mr Cornege in his sentencing submissions today has not strongly pursued the imposition of a minimum period of imprisonment.

[26] Your counsel accepts that this offence is subject to s 86(a) of the Sentencing Act and that this is a strike offence. Your counsel has emphasised that the victim here was attempting to steal your bicycle, that it was your only possession, and that, in a fit of rage, you become involved and went after the victim. But your counsel says this is not an act of vigilantism; there was by no means a determined pursuit to mete out justice to the victim, this was just simply an angry reaction to what you were confronted with.

[27] In terms of mitigating factors, your counsel has drawn my attention to the guilty plea, the conduct of Mr Bull, your remorse and your compliance with the police, willingness to give evidence on behalf of the Crown against Mr Bull, and your compliance with electronic bail for six months until it became too difficult due to the tensions between you and your father.

[28] Your counsel has submitted that the more appropriate band for determining a sentence starting point from Taueki is band 2. Your counsel submits that the final and end sentence should be in the vicinity of four years’ imprisonment. It is submitted that a minimum period of imprisonment is not necessary in this case.

Sentencing principles

[29] In forming a view on the appropriate sentence to impose on you for this offence, I must have regard to the Sentencing Act. The relevant parts of the Sentencing Act for this purpose are: s 7, which sets out the purposes of the Sentencing Act; s 8, which sets out the principles; s 9 relating to aggravating and mitigating factors; s 10 relating to any offer to make amends; and ss 16 and 17, which deal with imprisonment factors.

Purposes

[30] I consider that in terms of s 7 and the purposes of sentencing, that the purposes potentially applicable here are:

(i) To hold you accountable for harm done to the community by your offending (s 7(1)(a));

(ii) To promote in you a sense of responsibility for, and an acknowledgement of that harm (s 7(1)(b));

(iii) To provide for the interests of the victim of the offence

(s 7(1)(c));

(iv) To denounce the conduct in which you were involved

(s 7(1)(e));

(v) To deter you from committing the same or a similar offence

(s 7(1)(f));

(vi) To protect the community from you (s 7(1)(g)); and

(vii) To assist in your rehabilitation and reintegration in the community (s 7 (1)(h)).

Principles

[31] Section 8 sets out the general principles of sentencing that I must consider, and those that I consider potentially applicable are:

(i) I must take into account the gravity of the offending in the particular case, including the degree of culpability (s 8(a));

(ii) I must take into account the seriousness of the type of offence, in comparison with other types of offences, as indicated by the maximum penalties prescribed for the offence (s 8(b));

(iii) I must impose a penalty near to the maximum penalty prescribed for the offence, if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to you make that inappropriate (s 8(d));

(iv) I must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances (s 8(e));

(v) I must take into account any information provided to the Court concerning the effect of the offending on the victim (s 8(f)); and

(vi) I must also impose the least restrictive outcome that is appropriate in the circumstances (s 8(g)).

[32] In this case, given the seriousness of the offending, ss 16 and 17 of the Sentencing Act are not applicable, though I emphasise that I have taken into account everything that I have heard today and everything that I have read in the written submissions that have been made available to me.

Sentencing approach

[33] As I have already mentioned, the leading authority on sentencing for offending like the present is R v Taueki. In that case, the Court of Appeal made it clear that the appropriate approach to sentencing is to adopt a starting point that reflects the seriousness of the offending. Aggravating features of the offending are accounted for through the choice of a starting point. Then the sentence may be uplifted to take into account any aggravating features of the offender, and then a

discounting allowance made for any mitigating factors. Taueki provides three bands of offending, with band one covering less serious offending of this type and band three the highest level of this type of offending.

[34] The sentencing bands for grievous bodily harm offending have starting points ranging as follows:

(i) Band one, three to six years;

(ii) Band two, five to 10 years; and

(iii) Band three, nine to 14 years.

[35] Band one is seen as appropriate where none or few of the aggravating features are present and it is not an appropriate band for offences of extreme violence or violence which is actually life threatening. Band two applies for grievous bodily harm offending with two or three aggravating features, and band three applies to serious offending which has three or more aggravating features.

[36] I consider, Mr Wharewaka, that in your case, the following aggravating features are present:

(i) Serious injury to the victim; (ii) Use of a weapon; and

(iii) Attacking the head.

[37] I do not accept the Crown’s submission that this is a case of vigilante action. I consider that, rather than that, you simply responded out of anger when you gained the impression that someone was stealing your bike. In this regard, I note that Taueki recognises that serious violence, which can be classified as impulsive or a reaction to an unexpected event, will generally be seen as less culpable than premeditated violence. I consider that your offending falls into the impulsive or reaction to an unexpected event category. I do not consider that you were pursuing Mr Bull in

order to mete out justice in a vigilante way. I consider that this type of conduct requires more thought and consideration. Rather, I consider that you were simply reacting to the believed loss of your property, and certainly you overreacted. But I do not see that as the action of a vigilante.

[38] Nonetheless, the presence of the aggravating features I have identified, those three being serious injury to the victim, use of a weapon and attacking the head, could well have placed you in band three of Taueki.

[39] However, I also note that at [32] of Taueki that the Court of Appeal identified matters reducing the seriousness of grievous bodily harm offending. These included provocation. I do not accept that a theft of your bike would be sufficient provocation. But I do consider from the description in the summary of facts that you were stabbed by the victim before you stabbed him. Whilst it is clear that you took a knife with you, it is not clear to me that you planned to use the knife in the way that you actually did. The most serious injury here was striking the victim on the head. You also received serious injuries. It may well be that the seriousness of the injuries you inflicted on the victim were the result of you reacting to the injuries he was inflicting upon you.

[40] This is a case where two men, each armed with a weapon, engaged in a fight with each other in circumstances where both of them were seemingly prepared to inflict serious injuries with their respective weapons on the other person. This has been recognised, to some extent, by the Crown, as Mr Bull was also charged and convicted of an offence relating to the incident.

[41] You, Mr Wharewaka, received five stab wounds to your abdomen and one to your throat, there was the wound to your temple, and your left earlobe was bitten off. I consider that in the heat of a fight where those injuries were inflicted on you, you may well have been provoked into using the knife to inflict more serious injuries than you had initially planned to. Certainly it is not clear to me that you had planned to inflict the head injury on the victim and that you would have done so irrespective of the injuries that you suffered.

[42] I consider, therefore, that it is appropriate to take provocation into account as a balancing factor against the aggravating features I have outlined. This places you in band two of Taueki.

[43] Before choosing a starting point from band two, I note that the Crown has not drawn any comparable cases to my attention in its submissions to support a starting point of 10 years’ imprisonment, which in any event is based on me placing you in band three of Taueki. I have found no cases involving similar circumstances to the present where a starting point of the level the Crown contends for was adopted. The comparable cases I have found all support a lower starting point.

[44] In R v McGregor [2007] NZCA 435, Mr McGregor became involved in an altercation on a building site with a fellow worker. He swung a shovel at the victim, striking him on the upper arm and knocking him to the ground. That constituted the charge of assault with a weapon. While the victim was lying on the ground defenceless, covering his head with his arms for protection, Mr McGregor struck him a second blow on the back of the head. This was the offence of wounding with intent to cause grievous bodily harm. The second blow caused subdural bleeding which, at the date of sentence, was continuing to cause the victim problems. The mental and physical consequences of the head wound eventually caused the victim to close down his contracting company and he left New Zealand with his family to take up a job in Dubai. The offending was placed in band two of Taueki. The sentencing Judge adopted a starting point of five and a half years’ imprisonment. On appeal, the Court of Appeal found that there was nothing wrong in principle with the way the sentencing Judge had approached the sentence and that a final sentence of five and a half years’ imprisonment was not manifestly excessive.

[45] In R v Barnfather-Thomas HC Hamilton CRI 2009-019-8477, 16 September

2010, Heath J sentenced an offender who became engaged in a violent altercation with his stepfather, on a charge of wounding with intent to cause grievous bodily harm. As in your case, Mr Wharewaka, Mr Barnfather-Thomas was discharged on a charge of attempted murder. During the altercation with his stepfather, Mr Barnfather-Thomas took a black-handled pocket knife of approximately three inches in length, waved the knife at his stepfather and threatened to kill him. He then

stabbed his stepfather in the chest. The physician who treated the stepfather provided a medical report which said that the wound tract extended to the tip of his heart, and that it was pure luck that the injury inflicted did not cause death.

[46] The Crown identified the following aggravating features. Mr Barnfather- Thomas was armed with a knife, the victim was unarmed, the argument was unprovoked, the wound was to the chest of the victim, Mr Barnfather-Thomas pursued the victim after he was stabbed and made further threats to kill, and when spoken to by the police, he said he wished he had done a better job.

[47] Heath J adopted a starting point of five years’ imprisonment. At [24] of the

sentencing notes, the Judge said:

[Y]ou used a knife on your step-father with the intention of causing really serious harm to him. That is what you have admitted to doing by entering the plea of guilty. That is aggravated by the serious injury he sustained, attacking his head at various stages during the physical interaction and, perhaps most importantly, by your pursuit of him, brandishing a knife down the road while he was trying to get away from you, suffering from a wound that could easily have been fatal.

[48] The end sentence in that case was one of three years, seven months’

imprisonment.

[49] In R v Nelson HC Rotorua CRI-2009-063-519, 5 February 2010, Mr Nelson was sentenced on a charge of grievous bodily harm. He became involved in a fight and punches were exchanged. Unknown to the victim, Mr Nelson was carrying a knife, being a wooden-handled instrument about 80 mm long. At a later part in the fight, Mr Nelson stabbed the victim nine times. There were some five blows to the front upper part of his body, two to his right forearm and two to his back. One of those blows punctured his lung and another punctured his chest. The victim was hospitalised for five days and was subject to a two hour operation. The victim suffered significant pain and while it was many months before he physically healed, he considered he would never heal emotionally. The sentencing Judge adopted a starting point of seven years’ imprisonment.

[50] In all the cases I have referred to, the victims were drawn into the violent conduct by the perpetrator. They did not use weapons in the course of the physical altercation with the perpetrator. Whilst in some cases the injuries were not directed to the victims’ head, the injuries were nevertheless close to other vital organs, and I consider that the level of violence was close to what has occurred here. None of the cases I have looked at support a starting point of 10 years’ imprisonment; nor is the offending placed in band three. When I look at the range of starting points adopted in the comparable cases I have considered, I am of the view that in your case, Mr Wharewaka, a comparable starting point is one of six years’ imprisonment.

[51] The Crown accepts that there are no aggravating factors relating to you, and I consider that is correct. This is by far the most serious crime you have carried out to date. The earlier criminal conduct is older and, apart from the aggravated burglary, of a less serious nature. The only offence that comes close to the present offence is the aggravated robbery in 1994. I do not propose to take that into account because I consider you deserve credit for avoiding serious criminal offending between then and now.

[52] I next turn to consider mitigating factors.

[53] The Crown accepts you should get a full credit for your guilty plea. I consider that is correct. Although it was not made as early as it could have been, that needs to be seen in the light of the charge of attempted murder that was also initially laid against you. The guilty plea was entered to the present offence when the Crown agreed that you should be discharged on the attempted murder offence. Also credit needs to be given to your early admission to the police. I intend, therefore, to give you a 25 per cent discount for the guilty plea.

[54] I next turn to remorse. I consider that you have shown genuine remorse. You are someone who has been able to exercise a measure of self-control over your conduct over the years. Were that not the case, I would have expected to see a more extensive criminal history than the one you have. I accept that you genuinely regret what you did. I propose to give you a further five per cent discount to reflect the level of remorse. That brings the discount up to 30 per cent. Taken from a starting

point of six years’ imprisonment, that leads approximately to an end sentence of four years and two months’ imprisonment.

Minimum non-parole period

[55] I now turn to consider the Crown’s application seeking a minimum period of

imprisonment.

[56] The Court may impose a minimum period of imprisonment if it is satisfied that the one-third default minimum which is usually served is insufficient either to:

(i) Hold the offender accountable for the harm done; (ii) Denounce the conduct;

(iii) Deter others; and

(iv) Protect the community.

[57] Parole after one-third of the sentence is served is the statutory norm. The circumstances of the offence must be more serious than those of offences of that kind normally encountered for a minimum period of imprisonment to be imposed.

[58] The purpose of the imposition of minimum periods of imprisonment has been stated in R v Brown [2002] 3 NZLR 670 at [35] as follows:

[Section] 86 provides the mechanism to constrain that outcome where the offending is so serious that release after one-third of the sentence would plainly constitute an insufficient response in the eyes of the community, even though there may be no on-going safety risk. It enables the courts to give a degree of reality to the sentence and the outcome.

[59] The central consideration is the offender’s level of culpability, which is increased by unusual callousness, extreme violence, vulnerable or multiple victims and serious actual or intended consequences. The sentencing considerations in ss 7,

8, and 9, including the circumstances of the offender, are relevant in fixing a

minimum period of imprisonment: see R v Brown, R v Nguyen [2009] NZCA 239;

R v Gordon [2009] NZCA 145; R v Walsh [2005] NZCA 281; (2005) 21 CRNZ 946.

[60] In R v Gordon at [48], the Court of Appeal considered that the length of the minimum period imposed will usually fall short of the maximum two-thirds of the finite sentence, although there is no presumption against the imposition of this maximum. See also R v Wang [2009] NZCA 118 at [14].

[61] I consider that the relevant factors to take into account are: denunciation, deterrence, and protection of the community.

[62] Regarding denunciation, I consider that the aggravating factors of the offence are properly reflected in the choice of the starting point taken from the Taueki tariff bands. Those bands are calibrated to reflect factors such as the level of callousness and the intention to cause serious harm, which are also are relevant to denunciation when it comes to considering the question of a minimum period of imprisonment. There is nothing about the circumstances of this offending that causes me to consider that denunciation needs to be emphasised any further.

[63] Regarding deterrence, I consider that the absence of any prior offences involving serious violence demonstrates that there is no need to impose a minimum term of imprisonment. Your criminal history shows you are not a criminal recidivist when it comes to violent offending. Nor is your criminal history that extensive. There is nothing about it that suggests to me that you pose such a risk to the community that a minimum period of imprisonment is warranted. Apart from the one offence in 1994, which is 17 years ago, the nature of your previous offending is less serious than the crime for which you are now being sentenced. There is a good chance that you will mend your ways as a result of this offending. You have expressed an intent to do so, and you have good family support. I see no need therefore for the heightened deterrence that a minimum period of imprisonment is intended to cure. Nor is it required to protect the community. You are not someone from whom the community must be protected any further than is achieved through the sentence of imprisonment I impose upon you.

[64] Mr Wharewaka, please stand.

[65] On the charge of wounding with intent to do grievous bodily harm, you are

sentenced to four years, two months’ imprisonment.

[66] Please stand down.

Duffy J