Waddington v The Queen
[2019] NZCA 440
•19 September 2019 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA788/2018 [2019] NZCA 440 |
| BETWEEN | TONI NATASHA WADDINGTON |
| AND | THE QUEEN |
| Hearing: | 19 August 2019 |
Court: | Brown, Simon France and Dunningham JJ |
Counsel: | R B Keam for Appellant |
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 which of course is consistent, the only view which is consistent with the verdict, and [possible], and also of course not just to extract property from her, but also to prevent her interfering with what was happening to her partner, and finally it seems that you held some grudge against her which again might have added to your lack of compunction involving yourself in this very serious offending.
[2]At [9].
The Judge saw no justification for regarding Ms Waddington’s involvement as less serious than her co-offenders, being mindful of the need for parity and noting that she was the oldest of the trio by a considerable degree.[3]
[3]At [12]. At the time of offending Ms Waddington was 36 whereas Messrs Walker and Wiki were 20 and 21 respectively.
The Judge noted as aggravating features the high level of actual violence, the threatened violence which included the use of two weapons, one of which was a loaded firearm, and premeditation.[4] The Judge considered that what was effectively a home invasion at night was a serious aggravating factor which had the consequence that both victims no longer feel safe in their home.[5] While noting that a higher starting point would have been justified the Judge took the same nine year starting point as had applied to the co-offenders.[6]
[4]At [17] and [19].
[5]At [18].
[6]At [23].
The Judge then noted that Ms Waddington had been on EM bail for over 18 months during which time she had taken steps to address her drug offending and had completed a number of courses.[7] The Judge allowed a discount of six months for the time spent on EM bail and a further year for Ms Waddington’s rehabilitation efforts which she considered very generous.[8] However, having regard to the content of the pre‑sentence report, the Judge declined to allow any discount for remorse.[9]
Appellant’s submissions
[7]At [28]–[30].
[8]At [32].
[9]At [25].
With reference to starting point, Mr Keam advanced what he described as a policy-based argument which focused on the implications of the use of a firearm. He submitted that firearms are inherently dangerous in that homicide may occur by the touch of a finger. Hence a sterner penalty should be imposed on those whose offending involves firearm use. Not only did Ms Waddington not have possession of the firearm but it was submitted that on the evidence it would have been open to the Judge to infer that she was unarmed when she entered the property. Mr Keam also emphasised that in determining the level of relative culpability the Judge appeared to have placed weight on the fact that the appellant was older than her co-offenders.
On the question of discount Mr Keam submitted that the Judge erred in drawing unfavourable inferences about remorse merely from the fact that Ms Waddington had taken the charges to trial. He submitted that following trial Ms Waddington made genuine efforts by a letter and through social media to apologise to Ms Lourie with whom she had had a previous friendship. It was contended that a six month discount for remorse would have been appropriate.
Respondent’s submissions
Mr Kayes advanced seven reasons why Ms Waddington was properly viewed as equally culpable with her co-offenders:
· she was motivated in part by a grudge against Ms Lourie;
· she knew of the plan to rob the victims;
· she knew of the intended use of the gun in the robbery;
· she wanted to be involved and she was not dissuaded by Mr Wiki;
· she was directly involved, inflicting injury with a weapon, the fencing pliers;
· her attack on Ms Lourie continued after the robbery was completed; and
· she was directly involved in taking property.
These factors justified the Judge’s conclusion that Ms Waddington was an active participant and “part and parcel” of what occurred.
Mr Kayes then reviewed the evidence concerning the source of the fencing pliers which Ms Waddington had used in the tussle with Ms Lourie. He submitted that notwithstanding the letters which Ms Waddington had written, the Judge was correct to decline to allow any discount for remorse in view of Ms Waddington’s suggestion in the Department of Corrections advice that she had had to defend herself against Ms Lourie who had wielded the pliers and Ms Waddington’s failure to recall striking Ms Lourie a number of times.
Discussion
Principles
We must allow the appeal if we are satisfied that there was an error in the sentence appealed from such that a different sentence should be imposed.[10] Ultimately, the focus is on the sentence imposed, rather than the process by which it was reached.[11] It is a well recognised principle that it is generally desirable that there be consistency of sentences between offenders committing the same or similar offences.[12]
Was the starting point too high?
[10]Criminal Procedure Act 2011, s 250(2).
[11]Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
[12]Sentencing Act 2002, s 8(e).
We recognise that the Judge did not make a specific finding on the issue of whether the pliers which Ms Waddington used to assault Ms Lourie were brought to the premises by the offenders. We proceed on the basis that the pliers may already have been in the house. However the point of significance is that Ms Waddington deployed the pliers to inflict serious injury to Ms Lourie in an attempt to extort property from her.
We also acknowledge Mr Keam’s point that Ms Waddington did not have possession of the firearm. However she had discussed the plan with her co-offenders and we agree with Mr Kayes that she must have been aware that a firearm was being taken to the house. We accept his submission that there is no basis for concluding that her culpability was less than that of Mr Wiki and Mr Walker simply because she did not carry the firearm when she must have anticipated that it would be used.
We do not consider that the Judge placed undue weight on the age of Ms Waddington relative to her co-offenders. As Mr Kayes noted, the Judge did not describe her as “the ringleader”. We accept the proposition that the Judge likely referred to the age disparity to contrast this case with others where an impressionable offender is drawn into a plan made by older co-offenders.
We agree that the offending in this case aligns with the following scenario given as an example in R v Mako:[13]
Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more.
[13]R v Mako [2000] 2 NZLR 170 (CA) at [58].
We also agree that the gravity of the offending in Hemopo v R which concerned a home invasion is broadly comparable to the present offending.[14] This Court held that a nine year starting point adopted by the District Court Judge was justified having regard to the degree of violence used, the considerable impact upon the victims and associated offending including detention while the house was ransacked.[15]
[14]Hemopo v R [2016] NZCA 242.
[15]At [12]–[18].
Consequently we conclude that the nine year starting point adopted by the Judge was appropriate, quite apart from the issue of parity with the co-offenders’ sentences.
Should a discount for remorse have been allowed?
The respondent accepted that the Supreme Court in Hessell v R[16] made it clear that remorse and guilty pleas are separate mitigating factors which may justify separate discounts. Whether it will be appropriate to draw an inference of lack of remorse where a defendant pleads not guilty will depend on all the relevant circumstances.
[16]Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64]. See also R v Cossey [2019] NZCA 104 where the defendant was found guilty following trial and a discount for genuine remorse was given at sentencing.
While in the present case the Judge noted the fact of the not guilty plea we consider that the particular considerations that influenced the Judge in deciding not to allow a discount for remorse were those to which the Judge earlier referred:
[25] Your counsel has suggested that I take, that I allow, allow you some discount for genuine remorse. Ms Waddington, I can’t do that and that is because I have read that penultimate paragraph on page 1 of your pre-sentence report in which essentially you do not take full responsibility for things that you should, for this offending and you should. You even, for instance, ask that your own injury be taken into account and suggest that it was the complainant who attacked you, rather than the other way around.
[26] There are two things about that last point, first is I don’t accept it, but second, it completely ignores the fact that you’d invaded her home. If she had taken it into her head to attack you, it would’ve been an act of self-defence and she was entitled, would have been entirely justified in doing it, so even if she had, which I don’t accept, it wouldn’t have helped you. That suggests that you have not yet taken full responsibility for your actions, even though you have had plenty of time to think about it.
We agree with the Crown submission that the 18-month discount which the Judge had already allowed was generous and that in the circumstances of this case the Judge did not err in declining to provide the further six months for remorse which Mr Keam sought.
Result
The appeal against sentence is dismissed.
Solicitors:
Crown Solicitor, Manukau for Respondent
3
3
0