Waara v The Queen - [2010] NZCA 204

IN THE COURT OF APPEAL OF NEW ZEALAND
CA795/2009
[2010] NZCA 204
BETWEENJOHN HENRY WAARA

Appellant

ANDTHE QUEEN

Respondent

Hearing:27 April 2010

Court:Baragwanath, MacKenzie and Lang JJ
Counsel:S J Gill for Appellant

M E Ball and P D Marshall for Respondent

Judgment:20 May 2010 at 10am

JUDGMENT OF THE COURT

A The appeal is allowed in part.
BThe sentence of four years imprisonment is quashed and replaced by a sentence of three years and six months imprisonment on count 1 and a concurrent sentence of 12 months imprisonment on count 2.

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REASONS OF THE COURT
(Given by Baragwanath J)
[1]        John Henry Waara appeals against a sentence of four years imprisonment following conviction on two counts affecting his former partner. He was convicted by a District Court jury of injuring her with intent to injure on 17 October 2007. He had previously pleaded guilty to assaulting her on 26 November 2007 using a plastic baton as a weapon. He was acquitted on other counts. Judge Weir employed a starting point of two years imprisonment on the first count and an 18-month cumulative term on the second. He added an uplift of one year imprisonment on account of the appellant’s previous record and deducted six months to give credit for remorse expressed and a favourable pre-sentence report. The result was a four-year term.
[2]        Mr Gill for the appellant withdrew the contention in the written submissions that two years for the first count was excessive. He submitted that the starting point adopted by the Judge for the second offence was too high and that he failed to take into account the totality principle.
[3]        The Crown supported the sentence imposed by Judge Weir.
The facts
[4]        At the age of 17, the complainant had entered a de facto relationship with the appellant which lasted for seven years. The appellant is the father of her daughter. The appellant is 11 years older than the complainant and was a patched gang member with 135 criminal convictions, 20 of them for violent offending.
[5]        The Judge found at sentencing that on the first occasion in October following an argument the couple’s child started crying after the complainant had walked out of a bedroom, gone to the child’s room and slammed the door. The appellant entered the room and punched the complainant to the ground, inflicting ten to 12 punches on her. He stomped on her five or six times in the chest area, particularly on the left hand side of the ribs, fracturing one and causing her excruciating pain. The child, having witnessed this, punched her mother in the face. The appellant’s response was to say “Good one, even [the child] hates you”. The Judge accepted the evidence of a counsellor who said that later the day the complainant was very frightened and shaking, indeed petrified. She decided to go to the police and the counsellor accompanied her outside. But the appellant was there waiting for her. Because she was petrified the appellant…

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 Waara v The Queen

Details

AGLC: Waara v The Queen [2010] NZCA 204
Case: [2010] NZCA 204
Decision Date: 20 May 2010

CaseChat Overview and Summary

In the appeal of John Henry Waara, the appellant challenges a four-year imprisonment sentence imposed following his conviction on two counts of assaulting his former partner. The appellant was convicted by a jury in the District Court of injuring his former partner with intent to injure on 17 October 2007, and had previously pleaded guilty to assaulting her on 26 November 2007 using a plastic baton as a weapon. The appellant was acquitted on other counts. Judge Weir employed a starting point of two years imprisonment for the first count and an 18-month cumulative term for the second count. An uplift of one year was added for the appellant’s previous criminal record, and six months were deducted for the expression of remorse and a favourable pre-sentence report. This resulted in a four-year term. The appellant contests the sentence, arguing that the starting point for the second count was too high and that the totality principle was not properly considered.

The central legal issue in this case is whether the sentence imposed by the District Court was appropriate in light of the appellant's criminal history, the nature of the offences, and the applicable sentencing principles. Specifically, the appellant argues that the starting point for the second count was excessive and that the totality principle was not adequately applied. The Crown contends that the sentence was appropriate given the appellant's violent history, the domestic nature of the offences, and their cumulative impact on the complainant.

The Court of Appeal found that while the two-year starting point for the first count was appropriate, the 18-month starting point for the second count was too high. The Court determined that a 12-month sentence was more appropriate for the second count, considering the nature of the offence and comparable sentences for similar conduct. The Court also found that the appellant's extensive criminal history warranted an uplift of 12 months, and his expression of remorse and positive behaviour warranted a six-month deduction. The Court concluded that a total sentence of three years and six months for the first count and a concurrent sentence of 12 months for the second count was appropriate, reflecting both the severity of the offences and the need for proportionality. The Court thus allowed the appeal in part, quashing the original sentence and imposing the revised terms.

Orders