[1] Ms McWatters, good morning. On your guilty plea to one representative charge of robbery1,2 van Bohemen J entered conviction against you in this Court on 4 July 2022.3 The Crown offers no evidence on the balance of its charges against you, and I dismiss them.

[2] I now am to sentence you on your conviction. In sentencing you, I must accept as proven all facts essential to your guilty plea.4 The Crown suggests a starting point of seven years and six months’ imprisonment. Your lawyer, Melissa James, recommends three years’ imprisonment, mitigated to home detention. I am not bound by their views. I have to come to my own decision. I must satisfy myself of the appropriate sentence for the gravity (or seriousness) of your offending, including your culpability (or responsibility) for it.

Background

[3]I briefly address the background to your offending.

[4] After an encounter late the previous day, you and your two co-defendants co-ordinated to confront the two men and two women victims of your offending in their car at an isolated rural property at Hamilton’s Rotokauri in the early hours of Sunday, 16 January 2021. You stood over the victims in their car, to steal the victims’ jewellery, handbags and phonecards, demanding they reset their cellphones. You kept the victims until dawn in a house on the property.

[5] I have victim impact statements from three of the victims, who say your offending against them caused them severe anxiety and stress, including of the associated publicity, leading to two losing wages, job, home and custody of their child and relocating to the central North Island to be closer to family, and the third becoming seriously introverted and overly vigilant by reason of the risk you presented to her life.

1      Crime Act 1961, s 234(1): maximum penalty, 10 years’ imprisonment.
2      Crimes Act 1961, s 202C(1)(a): maximum penalty, five years’ imprisonment.
3      R v Mudford HC Hamilton CRI-2021-019-0273, 4 July 2022 at [4].
4      Sentencing Act 2002, s 24(1)(b).

[6] You were 29 years old at the time of your offending. You have three relatively minor non-compliance and driving convictions from the prior year and again this year while on bail for your current offending.

Personal circumstances

—PAC report

[7] The Department of Corrections’ pre-sentence report assesses you as presenting medium to high risk of reoffending and high risk of harm to the community, particularly having regard for your substance abuse, antisocial associates and gambling addiction. You have dysfunctional family and personal relationships, extending to supervised visits with your adolescent daughters.…

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 McWatters

Details

AGLC: R v McWatters [2022] NZHC 2224
Case: [2022] NZHC 2224
Decision Date: 1 September 2022

CaseChat Overview and Summary

Maxine Danielle McWatters was sentenced by the High Court of New Zealand at Hamilton for a charge of robbery. McWatters, together with her co-defendants, had confronted and robbed four victims at an isolated rural property in Rotokauri, Hamilton. The court considered the Crown's suggested starting point of seven years and six months' imprisonment and defence counsel's recommendation of three years' imprisonment, mitigated to home detention. The court was not bound by these suggestions and had to determine the appropriate sentence based on the gravity of the offence and McWatters' culpability.

The court identified several aggravating factors, including the premeditated and planned nature of the offence, the occurrence at night on private property, the detention of the victims until dawn, the presence of actual violence, and the material and lasting effect on the victims. The court also considered mitigating factors, including McWatters' background, insight, and commitment to rehabilitation. The court allowed a 15 per cent discount for these personal factors and an additional 15 per cent discount for McWatters' guilty plea.

After considering all the aggravating and mitigating factors, the court determined an overall starting point of three years and six months' imprisonment for McWatters' role in the robbery. The court then applied the discounts for personal factors and the guilty plea, resulting in a final sentence of two years and five months' imprisonment. The court acknowledged that the sentence appropriately engaged the purposes of denunciation, deterrence, and community protection. The court also considered the statutory purposes and principles of sentencing and imposed the least restrictive outcome appropriate in the circumstances.

Orders