R v McWatters

[2022] NZHC 2224

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2021-019-273

[2022] NZHC 2224

THE QUEEN

v

MAXINE DANIELLE McWATTERS

Date of hearing:

1 September 2022

Appearances:

B T Vaili for the Crown

M J James for Ms McWatters

Date of sentence:

1 September 2022

SENTENCING NOTES OF JAGOSE J

Counsel/Solicitors:

M J James, Barrister, Hamilton Hamilton Legal, Hamilton

R v McWATTERS [2022] NZHC 2224 [1 September 2022]

[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. The report considers any home detention sentence unsuitable at the proposed address, for its antisocial connections.

—s27 report

[8]                  You have asked I hear Raecheal Riddell (Kingi) on your background and its contribution to both your offending and your rehabilitation. Ms Riddell identifies your dysfunctional family and abusive or otherwise damaging personal experiences and relationships. She notes your fragile mental health and dissociation from your Māori culture.

—other correspondence

[9]                  I also have read your letter to me, apologising for your offending as “unforgiveable”, and from your mother and former mother-in-law, the latter supervising your children.

Approach to sentencing

[10]              I now turn to explain how I will sentence you. I take a two-stage approach: first, to identify a starting point for offending of this type. That involves identifying the offending’s aggravating and mitigating features.5 Second, I take into account all

5      R v Taueki [2005] 3 NZLR 372 (CA).

aggravating and mitigating factors personal to you, together with a discount for your guilty plea, all calculated as a percentage of the starting point.6

[11]              I must have regard for the statutory purposes and principles of sentencing.     I must hold you accountable for your offending and for the harm you have caused. Your sentence should be sufficient to denounce your conduct, to deter you and others from committing such offences, and to protect the community. I must consider the gravity (or seriousness) of your offending in comparison with other types of offences, and take into account its effect on the victims. Consistency in sentencing is desirable, but I must take into account anything in your circumstances as would make an otherwise appropriate sentence “disproportionately severe”. I must impose the least restrictive outcome appropriate in the circumstances, consistent with appropriate sentencing levels.7 These purposes and principles of sentencing have no ranking.8  My ultimate consideration is if “the sentence is a just one in all the circumstances”, having regard to “the circumstances of the offence and offender against the applicable sentence purposes, principles and factors”.9

Analysis

—starting point

[12]My first step is to set a starting point for your sentence.

[13]              There are complications in addressing robbery here: your acceptance of the Crown’s summary of facts prepared for substantially more serious aggravated robbery offending means your robbery offending must be near to the most serious of robbery cases. Only your personal circumstances then would avoid a penalty near to the 10-year maximum.10  On the other hand, that does  not mean I should just calculate   a comparable deduction from an aggravated robbery sentence.11 Rather, I should sentence for your admitted robbery, from the perspective of its particular aggravating

6      Moses v R [2020] NZCA 296 at [46]–[47].

7      Sentencing Act, ss 7 and 8.

8      Moses v R, above n 6, at [4], citing Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [37].

9 At [49].

10     Sentencing Act, s 8(d).

11     King v R [2019] NZCA 413 at [19].

and mitigating features.12 The distinction between the two can be seen on resentencing for robbery after quashing an aggravated robbery conviction, reducing seven years’ imprisonment to four years and six months.13

[14]              Your offending is aggravated by being premeditated and planned; together with others, although still outnumbered by the victims; occurring at night on private property, to which the victims were invitees and you and your co-defendants were intruders (although none of you was there for any ultimately legitimate purpose, and therefore I reject any aggravation as a home invasion); at which the victims’ car was blocked and they were detained from leaving until daylight; accompanied by actual violence; and giving rise to material and lasting effect on the victims. Your offending has no mitigating feature.

[15]              Such is to uplift robbery’s 18-month to three-year baseline to four years’ imprisonment,14 which I took as my starting point for your co-defendant, Mr Mudford, for his lead in the group offending. Your support role entitles you to a six-month reduction.15

[16]              So my overall starting point for you is three years and six months’ imprisonment. That appropriately engages sentencing’s denunciation, deterrence and community protection purposes.

—adjustment for personal factors and guilty plea

[17]              I turn to consider uplifts or discounts from that starting point for your personal factors, including your guilty plea.

[18]              I acknowledge Ms Riddell’s explanation of your background and its contribution to your offending.16 Your insight and commitment to rehabilitation,

12 Heteraka v R [2013] NZCA 339 at [23]–[24].

13 Piwari v R [2010] NZCA 19 at [31].

14 R v Lunjevich [2012] NZCA 454 at [23], citing R v Mako [2000] 2 NZLR 170 (CA) at [59]; Heteraka v R, above n 12, at [28]; and Piwari v R, above n 13, at [31]. Otufangavalu v R [2010] NZCA 585 at [6], Kelly v Police [2016] NZHC 2233 at [37] and Bell v Police [2016] NZHC 1715 at [23] are generous outliers, explicable by dismissal of their appeals.

15 Piper v R [2012] NZCA 104 at [28].

16 Waikato-Tuhega v R [2021] NZCA 503 at [51].

however, is fleeting, as illustrated by your most recent offending while on bail. I only will allow a 15 per cent discount on account of your personal factors.

[19]              I will also allow a 15 per cent discount for your guilty plea. That recognises the concession inherent in the Crown’s acceptance of the lesser offending.17

[20]              That brings me to an end sentence of two years and five months’ imprisonment, rounded down. That additionally engages sentencing’s purposes for your accountability and responsibility.

Sentence

[21]              Ms McWatters, please stand. On your robbery conviction, I sentence you to imprisonment  for  a  term  of  two  years  and  five  months.  You   may  stand down.

—Jagose J

17     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [63].