R v Wereta [2014] NZHC 2555 (20 October 2014)

Last Updated: 22 October 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-044-002640 [2014] NZHC 2555

THE QUEEN

v

_{RAWIRI DAVID WERETA}

Appearances:	S L McColgan for Crown P H H Tomlinson for Prisoner
Date:	20 October 2014

_{SENTENCING NOTES OF COURTNEY J}

R v WERETA [2014] NZHC 2555 [20 October 2014]

[1] Rawiri David Wereta, you appear today for sentence having pleaded guilty to one charge of wounding with intent to cause grievous bodily harm.¹ The maximum penalty is 14 years’ imprisonment. You also have pleaded guilty to one charge of assault with intent to injure² for which the maximum penalty is three years’ imprisonment. You were already, and still are, serving sentences totalling 10 years 6 months for other serious offending when you committed these offences. These included serious violent offences for which you received a first strike warning. Upon your conviction for the present offending you received a second strike warning. As a result, the sentence that I impose today will have to be served in full without parole.³

[2] The offending occurred in a cell in the middle-west landing in D block in Paremoremo Prison on 14 May 2013. You occupied a cell in that part of the landing, as did your two co-offenders, one of whom has already been sentenced⁴ and the other who is to be sentenced later this week.⁵ You, however, were the principal offender and I will spend a moment describing what happened that day.

[3] The victims, Tangi Nikoia and Tyrone Makimare, also occupied cells on the middle-west landing. Mr Nikoia had only moved to the landing that day. There was evidently some incident between you and Mr Nikoia. Your counsel has indicated that he had shown you a weapon presumably with some implication as to how he had would use it, but since neither you nor he made any statement to the Police I do not know for sure what went on between the two of you. Whatever did go on I take as an explanation but you and I both understand that it can be no excuse. Although I recognise that life in D block carries with it these kinds of incidents more commonly than anyone would like.

[4] The events that occurred on the landing were recorded on the CCTV footage and the events that occurred in the cell were known from the statement of the other

¹ _{Crimes Act 1961, s 188(1).}

² _{Crimes Act 1961, s 193.}

³ The circumstances of the offending and Mr Wereta’s own circumstances are such that no issue

_{arises as to whether this would be manifestly unjust.}

⁴ _{R v Tamihana [2014] NZHC 89.}

⁵ Lewis Warren Isaaka, who was convicted following a jury trial in September 2014.

victim, Mr Makimare. Shortly before the attack you and a co-offender, Mr Isaaka, were seen on the CCTV footage standing at the grille that separates the landing from the correctional officers’ station. You appeared to be tampering with the lock, presumably in an attempt to delay the entry by correctional officers, though if that was the intention it was not effective. Then you and Mr Isaaka went into cell 4, which was Mr Nikoia’s cell, though he was not in that cell at the time. Moments later you both came out of cell 4 and walked into cell 5. This was Mr Makimare’s cell and at the time Mr Nikoia and Mr Makimare were both in that cell.

[5] No CCTV footage is available from inside of the cell. But a short time Mr Makimare came out of the cell accompanied by Mr Isaaka. Then Mr Nikoia staggered out with you pursuing him. He was bleeding profusely. On Mr Makimare’s account you had run into the cell with something in your hand. We now know that to be a shank. You punched him, which knocked him off his chair to the floor. He saw you stabbing Mr Nikoia. Mr Nikoia was curled in a foetal position trying to protect his face. He heard a thumping noise as you kept hitting Mr Nikoia, punching him in the face and body with both hands. He saw that you had something in one of your hands and that when you pulled your hand back blood came out of Mr Nikoia’s face. He tried to pull you off but Mr Isaaka pulled him out of the cell telling him “Don’t try anything you’ll get stabbed up”.

[6] Outside on the landing Mr Makimare realised that he had blood coming from a cut on his face where you had hit him. He saw Mr Nikoia run past towards the landing, clearly in pain, bleeding. Mr Nikoia headed towards the landing. Mr Isaaka punched him, putting him on the floor. Mr Nikoia got up and you stabbed him again. There was a lot of blood. These latter moments are shown on the CCTV footage which I have seen from Mr Isaaka’s trial. Immediately after the attack you took off your shirt and walked up and down the landing with your arms in the air in what appeared to be something of a victory parade. Mr Nikoia sustained more than 18 stab wounds from that assault, including a life-threatening punctured lung. Mr Makimare sustained a minor laceration on the left side of his face.

[7] You subsequently disposed of your bloodied shirt and the shanks that you had used to attack Mr Nikoia. Another inmate, Mr Tamihana assisted you in this, pushing them down the toilet in his cell.

[8] The primary objectives in my sentencing in a case like this are deterrence and denunciation. Our society does not tolerate serious violent offending, even if it occurs in a prison setting between inmates. I am required to apply the principles set out in the Sentencing Act 2002. Of particular relevance in this case I need to take into account the gravity of the offending, the seriousness of the type of offence. The issue of parity between co-offenders is also relevant in these kinds of cases, but Mr Tamihana’s offending was different in kind to yours and Mr Isaaka has not yet been sentenced so I do not need to consider that aspect today.

[9] I start now in my sentencing with your attack on Mr Nikoia. The Court of Appeal has provided guidance for sentencing judges in cases of serious violence in its decision in R v Taueki.⁶ On the basis of that case I consider that this attack, which was premeditated, involved the use of weapons, targeted the head and resulted in serious, (though not permanent) injury fell within the upper end of what the Court of Appeal described as band 2 and attracts a starting point of between five and ten

years’ imprisonment. On one view there was the additional factor of you being assisted by Mr Isaaka but he did not directly participate in the attack on Mr Nikoia and I do not place great weight on that factor in assessing an appropriate starting point.

[10] In identifying the starting point within the range I have referred to I have taken account cases involving similar offending, particularly R v Shepherd⁷ and R v Takiaho,⁸ both of which involved violent offending by one inmate against another. In Shepherd an attack using metal shanks to inflict wounds to the head and face attracted a starting point of ten years’ imprisonment. The injuries in that case

seemed to be more serious and longer-lasting than the present. In Takiaho an attack

_{with a chisel to inflict serious wounds including a punctured lung attracted a starting}

⁶ _{R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA) at [57].}

⁷ _{R v Shepherd HC Auckland CRI-2007-044-9145, 19 October 2010.}

⁸ R v Takiaho HC Rotorua CRI-2005-044-114, 12 December 2005.

point of eight years’ imprisonment. There was a significant element of provocation in that case which is not present here.

[11] Your offending falls between these two cases. I therefore consider a starting point of nine years to be appropriate. There are, however, factors that require me to increase that starting point. The first is that when you committed this offence you were already serving a sentence for other violent offences, namely injuring with intent, assault and assault with intent to rob. In addition, you have eight previous convictions for violent offending, namely, four of common assault, one of injuring with intent to injure, one of threatening to kill, one of wounding with intent to injure and one of assault with a blunt instrument. You have many other convictions as well but they are not for violence and I set them aside. I consider that an uplift for the fact that you were already serving a sentence for violence offences when this offending occurred can reasonably be put at three months.

[12] Your counsel has, however, submitted that I should not impose any uplift on account of your previous convictions. Mr Tomlinson argued that to do so would be double counting because it is the fact of those previous convictions that has resulted in the effect of the second strike warning. This point appears not to have been raised in any previous case. The three strike regime was intended to impose a deterrence through the removal of the parole entitlement for repeat violent offenders. There was no apparent intention to alter the sentence structure that would otherwise be imposed and, arguably, imposing a lower sentence than would otherwise be imposed would undermine the intention of the legislation. However, I accept your counsel’s submission which I record Crown counsel’s agreement on, that the deterrent effect of the three strike legislation is achieved through the requirement to serve the whole of the sentence and then to uplift that sentence I referenced a previous convictions would be double counting.

[13] I do, however, need to impose a further uplift to recognise the assault on Mr Makimare which will attract a separate concurrent sentence. That sentence will be six months to be served concurrently and I impose a three month uplift to reflect

the totality of the offending. This brings the provisional starting point to nine years six months.

[14] I turn now to consider whether any deductions from that can be made. In doing so I briefly note your personal circumstances. You are now 31 years old, with a long history of gang involvement. You are assessed as being at high risk of re- offending. However, you do say that you want to put gang life behind you. You have apologised to your victims. The pre-sentence report also refers to your attendance with a psychologist in recent times to address your anger issues. The Crown has invited me to consider a small discount to reflect these positive steps and I am going to do this. I reduce the starting point by three months, bringing the provisional starting point back to nine years three months. You are also entitled to a reduction of 25 per cent in recognition of your guilty plea. This was not entered at the earliest stage but that was not your fault.

[15] The final sentence is therefore six years eight months. Your counsel has submitted that taken together with the sentence you are serving, the sentence that I have just imposed would be crushing and on a totality basis there should be a reduction to reflect that fact. However, although totality is an issue to be considered I do not accept that the present case warrants a reduction on that account. The Court of Appeal has made it clear that the discipline needed to effectively manage a prison requires a stern response to offending in that environment and that prison management would be undermined if sentences were reduced to reflect the fact that

an offender is already serving a sentence.⁹ I expect that there may be cases in which

a reduction might be justified on this basis, but not this one.

[16] Notwithstanding the fact that you are required to serve the sentence without parole I am required to indicate whether, and if so, what minimum period of imprisonment¹⁰ I would otherwise have imposed. Had this offending not been a

_{second stage offence I would have considered the usual parole period insufficient for}

⁹ _{Tryslaar v R [2012] NZCA 353.}

¹⁰ Sentencing Act s 86C.

denouncing the conduct and deterring such future conduct and would have imposed a minimum period of 50% which your counsel accepts as reasonable.

[17] So the end result is a sentence of six years eight months which you must serve in full Mr Wereta. It is cumulative upon the sentence you are already serving.¹¹ But I really encourage you to stay on a positive path, see what you can do

_{to get yourself out of gang life and onto something better. Good luck.}

_{P Courtney J}

¹¹ This sentence was added as a result of discussion with counsel after Mr Wereta had left the courtroom; I had not made it clear that the sentence was cumulative and counsel accepted that an editorial change should be made.