Waddington v The Queen - [2019] NZCA 440

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA788/2018
[2019] NZCA 440

BETWEEN	TONI NATASHA WADDINGTON Appellant
AND	THE QUEEN Respondent

Hearing:	19 August 2019
Court:	Brown, Simon France and Dunningham JJ
Counsel:	R B Keam for Appellant G R Kayes and L J Sullivan for Respondent
Judgment:	19 September 2019 at 10.30 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

Following a trial by jury in the District Court at Kaikohe Ms Waddington was found guilty on two charges of aggravated robbery. On 28 November 2018 she was sentenced to seven and a half years’ imprisonment on each charge to be served

concurrently.[1] Ms Waddington appeals against her sentence contending it is manifestly excessive because:

(a)the nine year starting point was excessive having regard to the nature of her involvement in the offending and the nine year starting points adopted for her co-offenders; and
(b)she was given insufficient discount for mitigating factors, namely her remorse and lack of previous convictions for violence.

Factual background

[1]R v Waddington [2018] NZDC 24747. On the morning of trial Ms Waddington pleaded guilty to one charge of possession of utensils for the use of drugs in respect of which she was convicted and discharged.

On the night of 19 January 2017 Ms Waddington and her two co-offenders, Mr Walker and Mr Wiki, went to an address in Mangonui with the object of obtaining methamphetamine. They knew the victims, Ms Lourie and Mr McMath, having obtained methamphetamine from them in the past.
While sitting in the car outside the victims’ house prior to the robbery, Mr Wiki attempted to discourage Ms Waddington from entering the house but she insisted, apparently influenced by a grudge against Ms Lourie and a desire to extort property from the victims.
On entering the house Mr Walker and Mr Wiki threatened Mr McMath with a loaded firearm. Ms Waddington directed her attention to Ms Lourie, hitting her a number of times with a pair of fencing pliers. Ms Lourie suffered lasting injuries as a result of the attack which in part was directed at her head.
The incident ended when, alerted by the noise coming from the victims’ property, neighbours appeared whereupon the three offenders left the scene in the vehicle in which they had arrived. As they departed Mr Walker fired two shots into the ground.

The judgment under appeal

After reciting the facts and noting that Ms Waddington had insisted on going into the house despite Mr Wiki’s discouragement, Judge Orchard concluded that Ms Waddington was very much “part and parcel” of what happened and an “active participant”.[2] Concerning Ms Waddington’s motivation the Judge stated:
[10] I note that as far as your attack on the complainant, Ms [Lourie], was concerned, it was motivated, according to the evidence which I accept, first at extracting property from her or the whereabouts of property from her, so essentially robbery…

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 Waddington v The Queen

Details

AGLC: Waddington v The Queen [2019] NZCA 440
Case: [2019] NZCA 440
Decision Date: 19 September 2019 at 10.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Toni Natasha Waddington, the appellant, appealed against her sentence following her conviction for two charges of aggravated robbery. The case was heard by Brown, Simon France, and Dunningham JJ, with R B Keam representing the appellant and G R Kayes and L J Sullivan representing the respondent. The appeal was dismissed on 19 September 2019. The central issue in the appeal was whether the sentence imposed was manifestly excessive. The appellant contended that the nine-year starting point was excessive and that she was not given an adequate discount for mitigating factors such as her remorse and lack of previous convictions for violence. The court examined the facts of the case, including the appellant's active participation in the robbery and her motivation to extort property from the victims, which involved the use of a weapon and caused lasting injuries.

The court concluded that the nine-year starting point was appropriate given the nature of the offending and the gravity of the violence used. The court also considered the appellant's remorse, finding that the Judge's decision not to allow an additional discount for remorse was justified based on the appellant's failure to take full responsibility for her actions. The court found that the Judge had already allowed a generous 18-month discount, and therefore the sentence was not manifestly excessive. The appeal against the sentence was dismissed, and the original sentence of seven and a half years' imprisonment on each charge to be served concurrently was upheld.

Orders