R v Waho
[2025] NZHC 1404
•30 May 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2023-031-001144
[2025] NZHC 1404
THE KING v
MARCUS DANA WAHO
Hearing: 30 May 2025 Counsel:
G J Burston and R S Bedggood for Crown P H Surridge for Defendant
Sentence
30 May 2025
SENTENCING NOTES OF LA HOOD J
[1] Mr Waho, I am now going to sentence you, you having pleaded guilty to the charge of arson that I have completed giving you a sentence indication in relation to. I am not going to rehearse everything set out in the sentence indication, or the reasons for the sentence that I am about to impose. I have nothing further to add about it.1
[2] I am going to sentence you to two years’ imprisonment with special release conditions. They are going to be the release conditions set out in the email from Corrections dated 28 May 2025 as follows:2
1 The reasons for the sentence indication are set out in an appendix to this judgment.
2 Although not stated in my oral decision, in accordance with s 93 of the Sentencing Act, I specify that the standard and special release conditions expire six months after the sentence expiry date.
R v WAHO [2025] NZHC 1404 [30 May 2025]
(a)To attend an alcohol and other drug assessment and attend and complete any treatment/counselling, including residential treatment programmes, as recommended by the assessment to the satisfaction of the Probation Officer and treatment provider.
(b)Not to possess, consume or use any alcohol or drugs not prescribed to you.
(c)Not to contact directly or indirectly any victims of your offending, unless approved in writing by a Probation Officer.
(d)To attend an assessment for a Departmental programme and if found suitable to attend and complete the programme to the satisfaction of the Probation Officer and the programme provider, subject to programme availability.
(e)To attend a maintenance programme on the completion of a Departmental programme to the satisfaction and as directed by the Probation Officer.
La Hood J
Solicitors:
Crown Solicitor, Wellington Mana Law, Porirua for Defendant
APPENDIX
SENTENCE INDICATION ON 28 MAY 2025
MARCUS WAHO
[1] Dealing first with Marcus Waho. He appears for a sentence indication on one charge of arson under s 267(1)(b) of the Crimes Act 1961, as a party.3
The alleged offending
[2] I will start with the facts of the offending as set out in the agreed summary of facts filed for the purpose of this indication.
[3] On 27 September 2023, at 1.30 am, Quentin Waho-Marsden texted Mr Waho, saying “Safe my kuzz when your ready kuzz I’ll fill you in on what im gonna do it’s gonna sound hard out but it’s upto you if you wonna ride shot gun with me”. Mr Waho replied “Allgood kuzzy im there just wait for this 1 to drop me off”. Mr Waho- Marsden then asked if police were patrolling, to which Mr Waho replied he had not seen any and then said “Safe kuzz does any one have money on there card I’ll give them cash just so we can go get gas n go from there”.
[4] Mr Waho then accompanied Mr Waho-Marsden to Reeve Street, Foxton, but there is no evidence that he entered the property, or was aware that the purpose of the fire was to destroy evidence of Mr Kahukiwa’s murder.
[5] Shortly before 4.31 am, two males were seen running from the address in Reeve Street. At 4.31 am, Fire and Emergency was alerted to a house fire at the Reeve Street address. A scene examination at the address showed that liquid accelerant had been poured through the house and set alight. The interior of the house sustained extensive fire damage, but I will come back to that later in my remarks.
[6] Mr Waho has numerous previous convictions, dating back to 2001. His most recent offending involved a protection order breach and wilful damage in 2023. His
3 Crimes Act 1961, ss 267(1)(b) and 66(1): maximum penalty of 14 years’ imprisonment.
offending primarily relates to drug possession, driving offences, court order breaches, and family violence.
The parties’ submissions
The Crown
[7] The Crown submits that a starting point of two and a half to three years’ imprisonment is appropriate, along with a 15 to 20 per cent credit for any guilty plea. However, Mr Burston accepted in oral submissions that a starting point of two and a half years’ imprisonment would be available. The Crown says Mr Waho’s involvement in the arson involved premeditation and planning, despite being recruited to assist at a late stage. Mr Waho and Mr Waho-Marsden were liaising about the plan approximately three hours before the fire started. The Crown submits that given Mr Waho-Marsden brought petrol to the address, Mr Waho was aware that the fire would be lit deliberately. Further, the Crown says the extensive fire damage to the interior of the house is an aggravating feature. The Crown also submits that setting fire to an unoccupied residential house carries an inherent risk to neighbours, due to the risk of the fire spreading, and that risk is heightened in the early hours of the morning, when people are generally asleep.
[8] The Crown accepts that Mr Waho played a substantially less culpable role than Mr Waho-Marsden, as Mr Waho-Marsden was acting to conceal his own serious offending, namely the murder of Mr Kahukiwa, whose body was in the house. The Crown accepts there is no evidence that Mr Waho was aware that Mr Kahukiwa’s body was in the house, or indeed that Mr Waho got out of the car.
[9] The Crown does not suggest that an uplift is necessary to reflect Mr Waho’s previous convictions.
[10] The Crown’s position is that a guilty plea reduction of 15 to 20 per cent is available for early entry of a plea if he wants to plead after this indication, and that other credits may be available depending on the reports and other information that could be available at sentencing. Mr Burston also points to the sentence indication for another co-defendant given by Boldt J where a 20 per cent reduction was indicated.
Mr Waho
[11] For Mr Waho, Mr Surridge submits that the starting point for Mr Waho’s offending should not exceed two years’ imprisonment. His position is that Mr Waho’s role is similar to Ms Prisk’s as all he did was accompany Mr Waho-Marsden to the property.
[12] Mr Surridge emphasises that Mr Waho has been seeking resolution for some time, having recently sought an indication for a charge under s 267(3) of the Crimes Act, which the Crown refused. He also points to the complications involved in a trial where there were and are numerous defendants. He argues that a full 25 per cent credit for a guilty plea is available.
Approach to sentencing
[13] As these sentence indications are being undertaken under some time pressure, I will not set out in detail the Court’s usual approach to sentencing. I will follow the approach required by the Sentencing Act 2002 and relevant authority by setting the starting point for the offending and applying uplifts and reductions for personal aggravating and mitigating features having regard to the purposes and principles of sentencing.4
Sentence indication
Stage one — the starting point
[14] There is no guideline judgment for sentencing on a charge of arson because the circumstances of this type of offending can be highly variable.5 As the Court of Appeal has said:6
Each case will depend on its own facts and involve a consideration of the property damaged, whether there was danger to life both of occupants and fire fighters and the mental state of the offender.
4 Sentencing Act 2002, ss 7 and 8; Moses v R [2020] NZCA 296, [2020] 3 NZLR 583; and Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [51].
5 R v Munro CA132/02, 24 July 2002 at [11].
6 Erickson v R [2012] NZCA 449 at [11].
[15] I accept that the following are the relevant features of the offending in setting the starting point:
(a)Premeditation and planning. I accept that premeditation was present to a moderate degree, in that Mr Waho and Mr Waho-Marsden were liaising about the plan approximately three hours before the fire started.
(b)The extent of damage. The summary of facts says the interior of the house sustained extensive damage. I have today been provided with further information after an adjournment to obtain that information. I have been given a series of bullet points by email indicating that the damage was to carpet, walls and paint surfaces, that there was no structural damage to the house, and that the quantum of the damage was in the range of $10,000.
(c)Inherent danger of the fire spreading. I accept this danger was increased by the time of night, when nearby neighbours were likely to have been asleep.
[16] I do not accept that Mr Waho’s position is directly comparable to Ms Prisk’s. He faces an arson charge with a maximum penalty of 14 years’ imprisonment while Ms Prisk’s charge has a maximum penalty of five years. This reflects his greater culpability. He knowingly encouraged the arson of a home by a patched gang member in a residential neighbourhood in the early hours of the morning.
[17] I have been assisted by the cases that have been referred to me by counsel.7 Typically, the authorities on charges under s 267(1) adopt starting points of between three and five years’ imprisonment.8 However, in some cases, it may be appropriate to adopt a starting point below three years.9
[18] Although there is no evidence establishing that Mr Waho knew about the reason for the fire or that he left the car, as I have said, he has pleaded guilty, or will
7 Ure v R [2014] NZHC 948, Stollery v R [2020] NZCA 429, and Reynolds v R [2022] NZHC 3469.
8 See the discussion of starting points in Howarth v R [2010] NZCA 523 at [51].
9 At [51].
be pleading guilty, if he accepts this indication, to being a party to the arson of a residential home by a gang member, which caused moderately serious damage and created a risk to the people asleep in neighbouring properties. Accordingly, I consider that a starting point of two and a half years’ imprisonment is appropriate having regard to those factors and the relevant authorities.
Stage two — aggravating and mitigating circumstances
[19] Turning next to consider the aggravating and mitigating factors that are personal to Mr Waho.
[20] I accept that an uplift for previous convictions is not required given the Crown’s generous submission that they do not seek one.
[21] I do not accept Mr Surridge’s submission that a full credit of 25 per cent is available for Mr Waho’s guilty plea. The fact he has made attempts to have the matter resolved on an amended charge is of little relevance. The charge has not changed, and Mr Waho could have pleaded guilty to it at any stage. As the trial is to start in three working days’ time, I consider that a credit at the lower end of the range suggested by the Crown, that is 15 per cent, is generous.
[22] Further credit from the starting point may be possible depending on the information available about Mr Waho’s personal circumstances at sentencing. However, Mr Surridge responsibly accepts that even if the sentence falls below two years a sentence of imprisonment is likely for Mr Waho, given his previous convictions and bail compliance history.
Result
[23] Subject to any further credit that may be available and giving credit of 15 per cent for the guilty plea, my sentencing indication therefore is, two years and one month’s imprisonment (rounding down slightly in Mr Waho’s favour).
ADDENDUM TO SENTENCE INDICATION ON 30 MAY 2025
[1] This is an addendum to my sentence indication for Mr Waho that I delivered on 28 May 2025,10 which was left open until 9.00 am today for further information and submissions on any credit available for background mitigating circumstances. I left open in my sentence indication credit for those factors.
[2] I have been provided with further information from the parties and from Corrections about those personal mitigating background factors. That has included a s 27 Cultural Report and a Pre-Sentence Report from previous occasions when Mr Waho has been before the court. It also includes information from Mr Waho’s sister and an uncle. All that information confirms that Mr Waho had an upbringing that was marred by parental addiction, witnessing and being subject to severe physical abuse, and an upbringing that involved poverty, gang association and general deprivation to a high degree. Unsurprisingly, that has led to his own life of addiction, trauma and offending over a long period of time. The Crown accepts that a credit of at least five per cent should be available for these background factors.
[3] I have also received further information that there was a miscommunication about the quantum of damage that I referred to in my sentence indication decision. The information I received was that there was no structural damage, that it was damage to curtains, carpets and the interior of the home, and that it was (I believed) in the range of $10,000. The miscommunication was that the registry was in fact told that the damage was in the range of tens of thousands of dollars. The Crown has now provided a more detailed estimate that the interior damage was in the range of about
$180,000.
[4] I do not intend revisiting the starting point that I set based on the information I had. Mr Waho can perhaps consider himself fortunate that the miscommunication occurred and that a higher starting point was not taken. However, the main aggravating feature in relation to the damage to the home was that Mr Waho knew that the fire was to be lit to a residential home in the early hours of the morning when he must have known that that would create danger to the neighbouring properties where
10 Sentence indication dated 28 May 2025 attached as an appendix.
people would have been asleep. Furthermore, as Mr Burston points out, the damage was rightly described by me as moderately serious given its non-structural and essentially internal nature.
[5] Sentencing is not a science. Although the starting point for Mr Waho could perhaps have been higher based on this information, a further reduction of five per cent for personal mitigating circumstances is at the light end and a greater reduction could well be justified.
[6] Balancing those factors, what I do accept is that the appropriate end sentence in this case is two years’ imprisonment. That means that Mr Waho is subject to release at one-half because that is a short term of imprisonment. That means I would need to consider whether special conditions of release are appropriate. Mr Waho is to be sentenced on other matters in about a month’s time in the District Court. Corrections have helpfully been able to provide me with the recommended special release conditions for that matter. I can indicate that should Mr Waho accept the indication and plead guilty, that I would be minded to impose the special release conditions that are set out in the email from Corrections dated 28 May 2025.
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