Waho v R

Case [2020] NZCA 526 27 October 2020

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA155/2020
[2020] NZCA 526

BETWEEN	RANDALL CLINTON WAHO Appellant
AND	THE QUEEN Respondent

Hearing:	20 July 2020
Court:	Cooper, Peters and Whata JJ
Counsel:	J D Lucas for Appellant C J Boshier for Respondent
Judgment:	27 October 2020 at 2.15 pm

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The appeal against sentence is allowed.

C The sentence imposed in the High Court of three years and three months’ imprisonment is set aside.
D A sentence of two years and 11 months’ imprisonment is substituted.

REASONS OF THE COURT

(Given by Cooper J)

The appellant, Randall Waho, appeals against a sentence of three years and three months’ imprisonment imposed after he pleaded guilty to a charge of causing grievous bodily harm with intent to injure.[1] He argues that Mander J adopted a starting point that was too high having regard to the circumstances of the case and also the starting points adopted in respect of sentences imposed on co‑offenders. He also contends that the Judge erred by failing to give proper consideration to personal mitigating circumstances, including:
(a)his participation in a restorative justice process; and
(b)matters raised in a report provided under s 27 of the Sentencing Act 2002, said to mitigate his culpability for the offence.
[1]Crimes Act 1961, ss 188(2) and 66.
It is also claimed that the discount of 20 per cent the Judge allowed in respect of the guilty plea was insufficient.
Mr Waho’s appeal was filed 12 working days out of time. The delay is minor and has not caused any prejudice to the Crown. We grant the required extension of time accordingly.

Relevant facts

Mr Waho was sentenced on the basis of a summary of facts which recorded that he and four others were members or associates of the Nomads gang. The summary stated that Mr Waho was sometimes referred to as the President of the Nomads gang. The Judge recorded that was in dispute, but for the purposes of sentencing accepted through counsel that Mr Waho held a position entitling him to “some respect and deference from other gang members” and that he was “in a position of influence”.[2] The Judge noted that Mr Waho’s leadership position in the gang meant that he was able to direct people and arrange events. That bore directly on his level of culpability.
[2]R v Waho [2020] NZHC 112 [High Court sentencing judgment] at [7].
The victim, Mr Heappey, died as a result of an assault. He was an associate of the Nomads gang Christchurch chapter who was known to Mr Waho and the other defendants. In the days prior to Mr Heappey’s death, members of the gang were actively involved in trying to find him in relation to a debt he owed to Ms Leonie Cook who was the daughter of Mr Waho’s partner. Mr Heappey was said to have ignored repeated…

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 Waho v R

Details

AGLC: Waho v R [2020] NZCA 526
Case: [2020] NZCA 526
Decision Date: 27 October 2020 at 2.15 pm

CaseChat Overview and Summary

Randall Waho appeals against a sentence of three years and three months’ imprisonment imposed by the High Court after he pleaded guilty to a charge of causing grievous bodily harm with intent to injure. Waho argues that the starting point adopted by the Judge was too high and that he did not properly consider personal mitigating circumstances. Waho also claims that the discount of 20 per cent the Judge allowed for his guilty plea was insufficient. The Court of Appeal grants the required extension of time for Waho to appeal and allows the appeal against sentence. The Court sets aside the sentence imposed in the High Court and substitutes a sentence of two years and 11 months’ imprisonment.

The Court of Appeal found that the starting point adopted by the Judge was appropriate, noting that Waho had a significant role in the events leading up to the attack on the victim. The Court found that the Judge had not properly considered personal mitigating circumstances, including Waho’s deprived background and the impact this had on his offending. The Court allowed a greater deduction for personal mitigating circumstances than the Judge had allowed, which would result in a sentence of two years and 11 months’ imprisonment if the 20 per cent discount for the guilty plea were left in place. The Court found that the difference in the guilty plea discount afforded to Waho and his co-offenders was not so great as to require correction on appeal.

The Court of Appeal grants the required extension of time for Waho to appeal and allows the appeal against sentence. The sentence imposed in the High Court of three years and three months’ imprisonment is set aside. A sentence of two years and 11 months’ imprisonment is substituted.

Orders