R v Lothian - [2019] NZHC 2938

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2018-020-3114

[2019] NZHC 2938

THE QUEEN

v

DAVID JAMES LOTHIAN JAMES TAYLOR MARTIN WEBBY

Hearing: 11 November 2019

Counsel:

S B Manning and J E Reilly for Crown R B Philip for Mr Lothian

L P F Lafferty for Mr Webby

Sentence:

11 November 2019

SENTENCING NOTES OF DOBSON J

[1] Mr Lothian and Mr Webby, I have to sentence each of you this morning for the murder of Alex Latimer. I also have to sentence you for other convictions, the circumstances of which I will shortly outline, but my sentencing analysis is dominated by the circumstances of the murder, so I begin with that.

[2] On the evening of 29 September 2018, you were both at Mr Lothian’s address at Te Haroto. Mr Lothian, your partner was present and also a Mr Boyd who lived a couple of kilometres away. In the course of an evening drinking and smoking cannabis together, the prospect arose of luring Mr Latimer to the property, with what was initially an intention to roll him for drugs.

R v LOTHIAN AND WEBBY [2019] NZHC 2938 [11 November 2019]

[3] Mr Latimer was a small-scale dealer in cannabis and methamphetamine. He had not had any recent dealings with either of you, most likely because of your earlier assault and robbery of money and drugs from him, and I will come to the detail of that in a moment. It was left to Mr Boyd to maintain text contact with Mr Latimer to invite him to come to Te Haroto to supply drugs. Mr Boyd did not disclose that either of you would be there and promised Mr Latimer money in return for drugs.

[4] You arranged that Mr Boyd would sit near the gate of the address with a torch to guide Mr Latimer’s car into the property when he arrived. Mr Lothian, you waited in a shed nearby and Mr Webby, you were in a car parked at the property.

[5] Mr Latimer arrived at about 3 00 am on the morning of Sunday, 30 September. Not knowing that you two were there, he was greeted by Mr Boyd, who told him he would go inside to get a cigarette. He was then set upon by both of you, beaten about the head and forced around the side of the house, and then around to the back of the property. He was hit with a shovel as he was dragged to the rear of the property.

[6] Once you had dragged Mr Latimer around to the back of the house, Mr Lothian, you directed Mr Webby to hit him again with the shovel and Mr Webby, you did that, hitting him over the back and the head. Mr Latimer went quiet and a shovel was then thrown at him and he was ordered to dig his own grave. You then resumed your attack on him, with each…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Lothian

Details

AGLC: R v Lothian [2019] NZHC 2938
Case: [2019] NZHC 2938
Decision Date: 11 November 2019

CaseChat Overview and Summary

The case of R v Lothian concerns the sentencing of David James Lothian and James Taylor Webby for the murder of Alex Latimer, among other charges. The High Court of New Zealand, Napier Registry, presided over the sentencing of the two accused. The primary legal issues were determining the appropriate sentence for the murder conviction under the Sentencing Act 2002, particularly in light of the "three strikes" provisions, and assessing the impact of other related convictions and mitigating factors on the sentence.

The court considered the brutal nature of the murder, the premeditation, and the involvement of other serious offences, such as aggravated robbery, arson, and attempting to pervert the course of justice. For Lothian, the court set a starting point for the minimum period of imprisonment (MPI) at 18 years, adjusted upwards due to other convictions and his prior criminal history, and downwards due to his guilty plea. Ultimately, the court decided against a life sentence without parole, finding it manifestly unjust given Lothian's age and the relatively lesser nature of the offence that triggered the first strike warning. Lothian was sentenced to life imprisonment with a non-parole period of 20 years.

Webby's sentence was similarly calculated, with a starting point slightly lower due to his lesser role in the fatal injuries. The court added uplifts for other convictions and subtracted a discount for his late guilty plea. Webby was sentenced to life imprisonment with a non-parole period of 17 years and nine months.

Both defendants received additional sentences for their other convictions, all to run concurrently with their life sentences. Lothian and Webby also received final and first strike warnings, respectively, under the three strikes law.

Orders