R v Wheble
| Jurisdiction | New Zealand |
| Judge | Toogood J |
| Judgment Date | 11 June 2019 |
| Neutral Citation | [2019] NZHC 1301 |
| Court | High Court |
| Docket Number | CRI-2018-012-002380 |
| Date | 11 June 2019 |
[2019] NZHC 1301
CRI-2018-012-002380
IN THE HIGH COURT OF NEW ZEALAND
DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA
ŌTEPOTI ROHE
Criminal — sentencing for attempted murder — serving prisoner — totality — three strikes warning — minimum period of imprisonment — Sentencing Act 2002
C McDiarmid for Crown
DJ More for Defendant
SENTENCING NOTES OF Toogood J
Anthony Wheble, you have pleaded guilty to the attempted murder of Diego Marques. 1 Because you have previously been convicted of serious violent offending, this is a second-strike offence. A warning to that effect was given to you at the time you pleaded guilty; and it means you must serve the full term of the sentence I impose on you without parole. 2
Your plea has concerned me. While you did not deny attacking Mr Marques, your initial not guilty plea was based on your assertion that you intended only to teach him a lesson, not to kill him. It was apparent that your request to change your plea to one of guilty was motivated by an irrational concern about your safety if you were required to return to the Otago Correctional Facility during your trial in Dunedin. The Court made it clear – on two occasions – that it would not transfer your trial to Christchurch. Mr More took instructions from you and said that you were prepared to acknowledge that you were guilty of attempted murder and to plead guilty. I accepted that plea on the basis that it was consistent with your claim that you attacked Mr Marques because he had threatened you and you were fearful.
Since then, however, you have reverted to claiming to that you did not intend to kill Mr Marques. Mr More has again taken instructions from you and has assured me this morning that you do not deny that you are guilty of attempted murder and that you understand that you must be sentenced on that basis.
The facts which, by your guilty plea, you accept as true, are these. Mr Marques and you were serving sentences of imprisonment at the Otago Corrections Facility in Milburn. At the time of the offending, you both resided in Wing H, Unit 33 at the facility. Unit 33 is a two-storey block with cells on both levels and a day room on the
On the morning of 28 October 2018, Mr Marques and you were in the day room. Other inmates were present, playing cards and conversing amongst themselves.
You had armed yourself and you were stalking Mr Marques around the day room. The weapon you had selected was a shank: a modified plastic knife approximately 10 centimetres long with a metal razor-blade fused to one end.
At a certain point you ran up behind Mr Marques. With your left hand you grabbed his shoulder and with your right hand you cut him across the throat with the shank. Mr Marques suffered an eight-centimetre cut to his throat. Fortunately, it was not deep enough to sever his carotid artery.
Mr Marques bowed his head and covered himself with his hands in an attempt to protect himself. You tried to cut his throat twice more but were unsuccessful. A fellow inmate intervened and ushered you away from Mr Marques, who made his way to a chair clutching his wounded throat. Another inmate assisted him into the recovery position on the floor.
But you were not done. You ran back to Mr Marques and stomped twice on his head with considerable force. Someone else intervened. Initially you backed off from Mr Marques, but then you scared away the man who had intervened by threatening him with the shank. You went back to Mr Marques and kicked him once to the head with moderate force. You circled his body and delivered a further five kicks to his head and face. These were full-force kicks.
At this point Corrections Officers intervened. You released the shank and were restrained.
Mr Marques was airlifted to Dunedin hospital. He received 15 stitches to his throat. He also sustained a mild nasal fracture and severe bruising to his head and face; and he was discharged after five days.
Mr Marques has provided a victim impact statement and has spoken again to the Court this morning. His foremost feeling is one of confusion. He does not know why you tried to kill him. He says he did nothing to provoke you in any way. But now Mr Marques is on edge all the time; he is suspicious of people generally and lives in constant fear and paranoia.
Physically, he has been left with a scar that stretches from the back of his neck to the beard-line in the front. It is a constant reminder of what you did to him. Mr Marques says people stop and stare at him.
Adopting the standard approach to sentencing, I must first set an initial starting point based on the characteristics of the offending, including its gravity, which is informed by sentences given in similar cases and, in particular, by the observations of the Court of Appeal, whose judgments I am required to follow. Following that, I will consider whether any of your personal circumstances justify an adjustment to the starting point, either through aggravating factors such as a history of similar prior offending, or through mitigating factors such as any remorse you might have shown.
I will then give you a discount to reflect the fact that you have taken responsibility for your offending by pleading guilty. Finally, I will step back and consider whether the end sentence I have arrived at is appropriate, having regard to the principle of totality.
The maximum penalty for attempted murder is 14 years' imprisonment. There is no guideline judgment for this offence. But the starting point is usually set by reference to the Court of Appeal's guideline decision that is used to assess the seriousness of offending involving the infliction of serious violence. 3 The existence
of an intent to kill, however, clearly calls for a longer sentence than might otherwise have been the case. 4The Crown identifies the following aggravating factors of your offending, as set out by the Court of Appeal in the guideline judgment:
-
(a) extreme violence;
-
(b) premeditation;
-
(c) serious injury;
-
(d) the use of a weapon;
-
(e) attacking the head; and
-
(f) the vulnerability of the victim.
The Crown also refers to a further aggravating factor that is not listed in the guideline, but it says is nonetheless relevant. That is the fact that your offending took place in a prison environment. The appropriateness of providing an uplift for such offending is well-established, 5 because good order and discipline within a prison environment is essential. 6
Taking all these factors together, the Crown says your offending falls squarely within band 3 of the guideline which has a range of imprisonment from nine to 14 years. It presses for a starting point of between 11 and 12 years' imprisonment.
Your counsel, Mr More, says the starting point should be 10 years. He says your offending falls towards the bottom of band 3. Although serious, the injuries sustained by Mr Marques were not life-threatening. And Mr More disputes that he was vulnerable. He also points to the “bad blood” between Mr Marques and you. But if his submission is that you were somehow provoked into attacking Mr Marques, and I do not believe it is, I make it clear there is no evidence of that kind to mitigate your offending in any way. 7
I accept the Crown's position on all but one of the aggravating factors listed and take them into account:
-
(a) The violence of the attack is properly characterised as extreme in that it was repeated and persistent. First, you slashed Mr Marques' throat from behind; you then attempted to slash him twice more; when he was on the ground defenceless, you stomped on his head; you then kicked him six times in the head or face. This was an unprovoked attack, without warning and from behind. Mr Marques had no opportunity to defend himself.
-
(b) The attack was planned, but it did not have the element of careful preparation that was present in at least one of the other cases where a starting point of 11 to 12 years was considered appropriate. 8
-
(c) The slashing of Mr Marques' throat with a razor blade could well have killed him, and he might have died from any one of the kicks to the head. That makes the injuries serious in terms of the guideline, 9 but Mr Marques recovered relatively swiftly. He remains physically and emotionally scarred, however.
-
(d) Except to the extent that it may be relevant to the degree of planning involved, I do not think it makes much difference to the aggravating
factor of the use of a weapon that you claim to have obtained it from another inmate, rather than making it yourself. A razor blade is an inherently dangerous weapon. -
(e) Attacking the head is an aggravating factor because the head is a vulnerable part of the body. Slashing the throat and stomping on and kicking the head of a victim carries the risk of lasting, even fatal, harm.
-
(f) I do not accept the submission that Mr Marques was vulnerable to a degree that amounts to a separate aggravating factor. Unlike several of the other cases I have cited below, the victim was attacked in the presence of other inmates and prison officers were able to intervene. A victim is not vulnerable simply because they were caught by surprise. 10 What is required is a fact-specific enquiry. 11 Mr Marques was in a crowded room and there was nothing to suggest it was not being supervised by Corrections staff or that you did anything to impede their access. It is true that, to a certain extent, you exploited Mr Marques' vulnerability after the initial attack, once he was in the recovery position.
-
(g) It is an aggravating factor that you committed this seriously violent crime while serving a...
To continue reading
Request your trial