Waho v The King
[2025] NZHC 2919
•3 October 2025
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2025-454-23
[2025] NZHC 2919
BETWEEN MARCUS DANA WAHO
Appellant
AND
THE KING
Respondent
Hearing: 1 October 2025 Appearances:
T E Hesketh for Appellant
A M Barham for Respondent
Judgment:
3 October 2025
JUDGMENT OF CHURCHMAN J
Introduction
[1] On 27 June 2025, Judge Krebs sentenced the appellant to two years and four months’ imprisonment for the following charges:1
(a)drove while disqualified (3rd or subsequent);2
(b)driver gave false information as to own identity;3
(c)presenting object which, in the circumstances, was likely to lead a person to believe that it was a firearm;4
1 Police v Waho [2025] NZDC 14899.
2 Land Transport Act 1998, s 32(1)(a) and (4) — maximum penalty of two years’ imprisonment or
$6,000; and disqualification from holding or obtaining drivers’ license for one year or more.
3 Sections 52(1)(c), 52A(2) and 114(3)(b) — maximum penalty of $10,000.
4 Arms Act 1983, s 52(2) — maximum penalty of six months’ imprisonment or $10,000.
WAHO v R [2025] NZHC 2919 [3 October 2025]
(d)threatening language;5
(e) burglary ($500–$5,000);6 and
(f) common assault.7
[2] The appellant now appeals his sentence on the basis that the Judge failed to have sufficient regard to the appellant’s personal factors and the connection between those factors and the offending.
The offending
Driving-related offences
[3] The appellant was disqualified from driving any motor vehicle for a period of six months commencing on 16 June 2023. On 19 October 2023, the police stopped the appellant at a traffic stop.
[4] When the police asked for the appellant’s details, he provided the name and date of birth of his sibling. After the police challenged the defendant on that information, he provided his correct details and was subsequently arrested.
Presenting object like firearm at person and threatening language
[5] On 7 November 2023, the appellant arrived at the victim’s address and began arguing about a trespass matter. During the argument, the defendant exited his vehicle and pointed what was thought to be a sawn-off shotgun at the victim. The victim ran backwards and yelled “he’s got a gun, he’s got a gun”. The defendant proceeded to put the object into his pants and said, “I’m going to get you”.
5 Summary Offences Act 1981, s 21(a) — maximum penalty of three months’ imprisonment or
$2,000.
6 Crimes Act 1961, s 231(1)(a) — maximum penalty of 10 years’ imprisonment.
7 Section 196 — maximum penalty of one year’s imprisonment.
Burglary
[6] On 17 August 2024, the defendant and an unknown associate drove to a business called Storming Bikes on Andrew Young Street in Palmerston North. He then reversed the vehicle into the store, smashing through the doors and causing extensive damage. The defendant and his associate entered the store and removed five motorcycle helmets, valued at $900 in total, and six motorcross shirts, valued at $360 in total.
Common assault
[7] The offending occurred on 6 December 2024 in the exercise yard at Whanganui Prison. The victim was assaulted in a separate confrontation with another inmate. During the assault, the victim backed into the defendant and three other inmates. The other inmates began to punch and kick the victim in the head and torso. The defendant joined in by punching the victim. While the victim is cowering to protect himself, the group continued to kick and punch the victim.
District Court Decision
[8] The Judge adopted the offence of burglary as the lead charge and set a starting point of 18 months’ imprisonment.
[9] The Judge commented on several aggravating features of the offending. First, the offending was deliberate, brazen and a determined effort. Second, the appellant targeted that particular premises. Third, the use of the car increased the extent of damage that was caused.
[10] The Judge applied an uplift of six months for the driving-related offences, three months for the firearm charge and three months for the assault charge. The appellant’s previous convictions justified an uplift of 10 per cent and a further uplift of five per cent for the serious offending while on bail.
[11] The Judge considered a 20 per cent reduction was appropriate for the appellant’s guilty plea. While the appellant had a difficult upbringing and drug
addiction, the Judge observed that the appellant has had multiple opportunities to address these issues. As a result, the Judge declined to apply any further reductions.
[12] Overall, the Judge arrived at an end sentence of two years and four months’ imprisonment and disqualified the appellant from driving for one year and one day with the commencement date for the disqualification being back dated.
Submissions
Appellant’s submissions
[13] The appellant submits that the Judge failed to reduce the sentence on the basis of the appellant’s personal factors, including addiction, steps towards rehabilitation and rehabilitative potential. Mr Hesketh submits that the Judge ought to have reduced the appellant’s sentence by 15 per cent due to the nexus between his upbringing and the offending.
[14] Mr Hesketh seeks leave to admit on this appeal the following evidence that was not provided to the Court at the time of sentencing, namely:
(a)a s 27 cultural report dated 14 February 2025, prepared for an earlier sentencing;
(b)a Hōkai Tapuwae report dated 1 September 2025, prepared after the sentencing in the District Court; and
(c)a letter from the Programme Lead at Huarahi Pai programme, a marae- based residential rehabilitation programme, dated 27 August 2025. The letter was prepared after sentencing to reflect the appellant’s completion in the second stage of the programme.
[15] With reference to Lundy v R, Mr Hesketh acknowledges that the s 27 cultural report is not fresh but submits that the evidence is credible and cogent.8 He also
8 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].
submits that the Court ought to take into account the report and letter prepared after sentencing.
[16]The Crown does not oppose the admission of that evidence and I admit it.
[17] Mr Hesketh also refers to a letter from the appellant’s sister outlining his issues with substance abuse which was read in Court at sentencing.
Respondent’s submissions
[18] Ms Barham, for the respondent, submits that the Judge did not err in refusing to allow a reduction for the appellant’s personal circumstances. In referring to the Supreme Court’s decision in Berkland v R, Ms Barham argues that the impact of the appellant’s background on sentencing must be outweighed by other sentencing principles. Ms Barham submits that other sentencing principles, such as denunciation, deterrence and community protection must take precedence.
[19] Ms Barham highlights that the appellant has largely offended without pause since 2000 and that, since 2011, the period between the appellant’s offending has not been more than a year.
[20] The respondent submits that a reduction for the appellant’s attendance at a marae-based rehabilitation program during a period when he was on electronically monitored bail, is inappropriate. Ms Barham highlights that the appellant did not return to custody on completion of the program and instead, committed further offending in the community, namely the burglary and then an assault when he was back in custody. Therefore, a reduction is not warranted for attempts at rehabilitation where the defendant has absconded and committed further offending.
Approach to appeal
[21] An appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.9 Generally, an appellate
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.10 In most cases, a sentence appeal will turn on whether the final outcome is manifestly excessive, rather than the route taken by the judge in reaching that outcome.11 The Court must dismiss the appeal in any other case.12
Analysis
[22] I turn now to consider whether the evidence that was not before the District Court justifies this Court interfering with the sentence and provides justification for a reduction to the sentence on the basis of the appellant’s upbringing and background.
[23] While the letter from the appellant’s sister was available to the Court at sentencing, I will also take that into account in my assessment.
Reduction for rehabilitative potential
[24] Voluntary efforts to engage in a rehabilitative programme before sentence may be treated as material evidence of remorse and warrant a reduction in sentence.13 However, little weight may be placed on rehabilitative efforts in circumstances of recidivist offending.14
[25] I agree with the respondent’s submissions that a reduction for the appellant’s attempts at rehabilitation must be balanced against the appellant’s failure to return to custody after completing the rehabilitation programme.
[26] Therefore, I consider the Judge did not err in failing to apply a reduction for the appellant’s attempts at rehabilitation.
10 At [36].
11 Ripia v R [2011] NZCA 101 at [15].
12 Criminal Procedure Act 2011, s 250(3).
13 Hansch v Police [2014] NZHC 2438.
14 R v Ngamo [2009] NZCA 512 at [9].
Reduction for upbringing
[27] The leading case on reductions for personal background factors is the Supreme Court decision of Berkland v R.15 The defendant in Berkland v R received a 10 per cent reduction for extensive addiction issues and personal background factors. The Supreme Court outlined where personal background factors could impact offending and affect the sentencing decision:16
Children raised in poverty are more likely to experience at least some of the so-called criminogenic risk factors that consistently correlate with offending later in life. These factors can be environmental or intrinsic to the offender. Generally, the more factors present during a person's childhood the stronger the correlation. These factors are well understood. Environmental factors include, for example, prenatal maternal alcohol and drug use; exposure to serious violence or other trauma; lack of prosocial familial support and connection; being raised in a single parent household; having a caregiver who is or has been in prison; exposure to high levels of drug and alcohol use by adults; and living in chaotic circumstances, including multiple households and schools, high truancy, poor educational outcomes (especially low literacy and numeracy) and separation from family (usually through state intervention).
[28] The Hōkai Tapuwae Report outlines that the appellant was raised in an environment where alcohol and drug were normalised, enduring a range of physical and emotional abuse, resulting in childhood trauma.
[29] In addition, the s 27 report records that the appellant has suffered from “considerable systemic deprivation”, outlining the follow consequences:
He displays the symptoms of systemic deprivation such as familial instability, hardship/poverty, physical abuse, psychological, childhood exposure to drugs, alcohol, inter-generational cultural and social dislocation, disconnection, exposure to gangs, continuing harmful effects of colonisation.
[30] The appellant argues that a reduction would normally be available to him due to his upbringing being causatively connected to his offending.
[31]However, the Supreme Court in Berkland v R made the following observations
15 Berkland v R [2022] NZSC 143; [2022] 1 NZLR 509.
16 At [116].
as to the impact of the appellant’s background on sentencing where there the nature of offending is repetitive:17
In addition to the potential effect of seriousness, a question also arises as to the impact of background in sentencing for repetitive offending. While this is not a matter before us we acknowledge that it may raise similar issues. Again, the focus must be on the facts of the offence and the offender. On the one hand criminogenic background factors tend to be reflected in repeat offending. Sentencing judges generally understand this and the need for patience. But we accept that at some point other sentencing principles however will take over.
[32] The Judge considered that the appellant had recached this point in declining to apply a reduction for the appellant’s background factors in light of the appellant’s continuous offending over the past 25 years and 80 prior convictions.
[33] Even if a reduction was available in this case, the Court must focus on the end sentence, rather than the process adopted to reach that end sentence.18 The Court is unable to “tinker” or intervene with the end sentence if the end sentence is within range.19 In borderline cases, “the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight.”20
[34] The Judge noted at para [25] of his decision that he could apply a higher increase for the appellant’s previous convictions uplift but declined to do so. In my view, an increase would have been appropriate to account for the appellant’s previous convictions. That would offset most, if not all, the available reduction for upbringing and amount to what I consider to be tinkering.
[35] Looking at the overall end sentence, I consider the Judge did not impose an end sentence that was manifestly excessive. This is also not a case where the Judge overlooked or failed to consider the appellant’s background and its connection with his criminal activity. He made a rational and carefully considered decision that the time had been reached when other sentencing principles prevailed. The evidence which I admitted on appeal contains nothing that would justify altering the District Court decision.
17 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at fn 105.
18 Ripia v R [2011] NZCA 101; and see also Tutakangahau v R, above n [9] at [36].
19 R v Boyd (2004) 21 CRNZ 169 at [38].
20 R v D (CA 253/2008) [2008] NZCA 254 at [66].
Outcome
[36]The appeal is dismissed.
Churchman J
Solicitors:
Tim Hesketh Law Ltd, Palmerston North for Appellant Crown Solicitor, Palmerston North for Respondent
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