EDITORIAL NOTE: NO SUPPRESSION APPLIED.
IN THE DISTRICT COURT
AT GISBORNE
CRI-2014-016-002074
[2016] NZDC 7462
THE QUEEN
v
DWAYNE ROBERT MANUERA NATHAN
Hearing:
29 April 2016
Appearances:
S B Manning for the Crown
E Forster for the Defendant
Judgment:
29 April 2016
NOTES OF JUDGE A J ADEANE ON SENTENCING
[1]
Mr Nathan appears for sentence this morning, having been convicted by a
jury on five charges: First, a charge of burglary at Ōpōtiki; second, a charge of theft
of $20,000 motor vehicle from that same burglary at Ōpōtiki; third, a charge of
intentionally causing grievous bodily harm to Ms Newman; fourth, a charge of
intentionally causing grievous bodily harm to Mr Wanoa; and fifth, a charge of
causing grievous bodily harm to Mr Satherley with intent to wound him.
[2]
The facts are that the defendant was on an excursion to Whakatane with two
others, a male and a female friend. A plan was hatched to go and steal a new Mazda
motor car parked in the garage of an elderly woman who lived alone in Ōpōtiki.
This purpose was achieved. Mr Nathan was the principal burglar involved. The
other man present drove the vehicle, which had been used to get to the subject
property, and the Mazda vehicle was taken away with intention to later sell it.
R v DWAYNE ROBERT MANUERA NATHAN [2016] NZDC 7462 [29 April 2016]
[3]
In connection with that, the group then developed a plan to travel to Gisborne
where it was thought there might be a willing purchaser. They travelled to Gisborne
in the car. They visited various addresses. But finally, they went to one where they
thought they were acquainted with the occupants. It is here that the difficulties
began. In fact, the occupants had changed and new people were resident. Not only
that, but despite it being one or 2.00 am, that group was up socialising. They asked
Mr Nathan and his friends to leave. They were not interesting in buying a stolen
motor vehicle. There was some boisterous to–and–fro between the two groups.
[4]
Ms Newman, fearing what might develop, took the precaution of getting a
baseball bat from inside the house and bringing it out. Mr Nathan went to drive his
vehicle away from the property. Ms Newman, unwisely no doubt, chose to throw the
baseball bat in the general direction of the departing vehicle. Mr Nathan then
stopped, alighted from the vehicle, picked up the baseball bat, took it up to
Ms Newman and stuck her. Mr Wanoa, who is a middle–aged gentleman, intervened
to try and stop what was happening. He was struck with devastating effect about the
head. A younger man, Mr Satherley, then joined in and he, in turn, was attacked with
the baseball bat and struck repeatedly about the head and body.
[5]
Mr Manning has, this morning, dealt with the impact of these attacks on the
three victims involved. I have full details in front of me of those. I do not intend to
go further into them. Suffice to say that there have been grave and lasting physical
consequences for all three victims, let alone the emotional consequences.
[6]
For Mr Wanoa, the effects have been devastating. It was expected for a long
time that enquiries into the attack on him would end up as a homicide enquiry.
Mercifully, that was not the case. But the consequences were barely less serious in
terms of Mr Wanoa’s lifestyle from a long term point of view.
[7]
So it can be seen that at the time these attacks were launched the defendant
was in a prolonged, premeditated and quite serious adventure into dishonesty
offending. He intended the culmination to be the sale of a stolen car of considerable
value and, brazen in this, he chose to enter private property at 2.00 am in the
mistaken belief that dishonest, prospective purchasers might be found there. All of
this was provocative of a confrontation with honest occupiers, peacefully minding
their own business on private property.
To say that the alarmed and defensive
reaction of those occupants somehow constitutes provocation of the defendant’s
subsequent conduct, or colours it with some kind of justification of self–defence,
albeit excessive, totally misrepresents the rights and wrongs of this situation.
[8]
The defendant was on a dishonest adventure which turned into a violent one,
as might have been predicted. He had no right on his side. His sole obligation was
to leave the property as he had been instructed to do. That is not how matters ended
up.
[9]
It is well enough settled now that this Court is obliged, not only to identify
which of the Taueki aggravating features are present but also to assess the degree to
which it is present in settling an appropriate penalty.
[10]
There are four aggravating features manifestly present here:
the use of
extreme violence exerted by means of a dangerous weapon used to attack the head,
resulting in serious and in part catastrophic injuries. Each of those aggravating
factors, in my view, is present to a high, if not a very high, degree. So far as the
vulnerability of the victims is concerned, one was female, one was aged. So far as
home invasion is concerned, it was also present but I accept, as Mr Forster submits,
that it was in some degree contextual or background. Those two factors are present,
in my view, to a moderate degree.
[11]
It is necessary then from that position to identify starting-points for each of
these groups of offences. I have regard to the victim impacts which, fortuitously
perhaps, is greater or lesser according to which case we are looking at. The attack on
Mr Wanoa, standing alone, in my view, was at the very least close to worst of kind.
It requires a starting-point of 10 years’ imprisonment.
[12]
The attacks on the other two victims, standing alone, would each justify
starting-points of not less than five years’ imprisonment, when compared with the
factually very similar case of R v Taueki [2005] 3 NZLR 372 (CA), which is now the
guideline case. Given the close continuum of these three attacks, and concerns about
matters of a totality of sentence, an uplift of two years is the least required to
recognise the whole of the serious violence which occurred here. In my view, when
looked at closely the defendant’s previous violent offending, largely domestic in
character, is not sufficiently cogent to matters before me today to demand a further
uplift. The burglary, however, and the taking of the valuable motor car, again does
require an uplift from a starting-point of two years for that offending adjusted
downward in the interests of totality, to an uplift of a further 12 months’
imprisonment. In the result, a sentence of 13 years’ imprisonment is reached for the
whole of this offending.
[13]
Mr Forster opposes the imposition of a minimum non–parole period. But it
seems to me that in the mind of the community, if that were not imposed here, then
offending as egregious as this would not be properly denounced and deterred.
[14]
There are some glimmerings of reformation in the probation officer’s report.
But at the end of the day, they may well have a situational aspect to them. In my
view, a minimum period of imprisonment is appropriate in this case and I fix it at six
years’ imprisonment.
[15]
Accordingly, you are sentenced to 13 years’ imprisonment with a minimum
non-parole period of six years.
A J Adeane
District Court Judge